Findings Of Fact By various purchases during the period 1967-1969, Petitioner acquired over 14,000 acres of land in the eastern sector of central Florida. About 12,000 acres of the land lie in Volusia County and the remainder in the northern part of Brevard County. Petitioner registered various public offering statements for resale of this land with the Florida Land Sales Board. In 1967, pursuant to an act of the State Legislature, the Circuit Court of the Seventh Judicial Circuit of Florida entered judgment creating and incorporating the South County Drainage District which included Petitioner's land in Volusia County. Later attempts by judicial action to extend the Drainage District boundary lines to include Petitioner's land in Brevard County were unsuccessful. A 1967 agreement between Petitioner and the Drainage District provided that a drainage plan would be implemented by the District with funds for construction being advanced by Petitioner. This plan consisted of dead-end graded roads and a system of ditches and canals that were to be constructed and maintained by the Drainage District, with purchasers of the property to be assessed for the cost of the facilities. In 1972, Volusia County adopted a home rule charter which abolished the South County Drainage District and transferred its powers and functions to the county. In 1973, an agreement was entered into between Petitioner and Volusia County providing for the transfer to the county of the functions, responsibilities, and obligations of the Drainage District, and assigning to Petitioner the right to petition the State for approval of the drainage plan. Under the agreement, a Special Improvement District was created by the County (testimony of Trella, Maise1, Exhibits 1, 2, 25, 26, 27). The land acquired by Petitioner had been designated as Cape Atlantic Estates and was divided into tracts or lots in a grid system which was a series of rectangular squares with intersecting roads. Initially, the tracts were two and 1/2 acres each and eventually they were halved and sold in one and 1/4 acre plots. A typical offering statement provided that the "predeveloped tracts" were subject to road and drainage rights-of- way, and that purchasers, after paying their contracts in full, would receive free and clear title to the property. It was further stated that physical access would be obtained over rough graded dirt roads to be completed by December 31, 1973, and that when drainage facilities were completed the land would be dry. It was specifically pointed out that it was not a "homesite" offering nor was it part of a recorded plat, but offered as part of a section, township and range. However, the statement also noted that facilities such as elementary schools, churches, and fire, and police protection were available in neighboring communities. It also indicated that there was no water supply, sewage, public utilities, or public transportation to the property. Sales commenced in 1967 and, by the middle of 1971, approximately 98 percent of the tracts had been sold, primarily to out-of-state purchasers. The bulk of the sales were made by telephone contacts initiated by Petitioner's salesmen. Some 5,000 purchasers bought tracts in the development on contracts which were of eleven to twelve years in duration. The property in question is described as coastal low lands that consist of essentially level terraces. The surface drainage of the land is poorly-developed and inefficient. The terraces begin at the Atlantic Ocean on the east and progress westward to a maximum altitude of about 29 feet in the project area. The Atlantic coastal ridge functions as a divide between the St. Johns river and the coastal drainage basin called Turnbull Hammock. West of the ridge, surface drainage generally is toward the St. Johns river, and east of the ridge drainage is into Turnbull, Hammock which leads to Turnbull Creek and thence to the Indian River. The region has large swamp and marshland areas and sandy surface soils which are intermittently underlain by hardpan at shallow depths which impedes rainfall infiltration. Much of the area is covered with ponds during the wet season creating swampy conditions. The climate supports heavy growth of native pine and scrub oak trees in the sandy soils. Cypress trees prevail in the wet bottomlands. Turnbull Hammock occupies the eastern quarter of the tract and is flat and heavily-wooded. It serves as a catchment for surface runoff from the lands immediately to the west and also for lands outside and north of the project. The Turnbull Hammock natural drainage basin involves about 48 square miles. Highway 1- 95 - traverses the center of the area in a north-south direction. The land is in a primitive state and is mostly unused with the exception of minor cattle grazing areas. Subsurface water leaving the Cape Atlantic Estates to the east surfaces in the Turnbull Hammock and drains to the south into the Indian River. On the west side, the tendency of the water is to move west and surface in cypress sloughs, eventually reaching Buck Lake, an area to the southwest. During flood conditions, when surface waters are high, the western subsurface water could make its way in time to the St. Johns River. The original drainage plan was aimed at decreasing the retention of surface water and using controlled measures to improve runoff in order to prevent flooding and soil erosion. Some nine percent of the property has standing water or ponding and, although in many of the sand ridges, this is not a serious problem because the rainfall quickly dissipates into the soil, in those areas were the soil is heavily interspersed with hardpan, there is slow percolation. Some 26 percent of the land area floods during rain showers. The plan was to remove the standing surface water by a network of canals, ditches and swales and, to achieve these goals, regulating devices were to be installed at two major discharge points of the system. The plan incorporated a main canal located just west of 1-95 which would drain the western Volusia County portion of the project area through an existing 9' X 12' double box culvert under 1-95 into a north outfall canal and ultimately into Turnbull Hammock. The remaining portion of the western section, some 2300 acres in Brevard County, was planned to be drained to the south whereby water would exit the property through a 142 acre storage reservoir that was considered to have sufficient capacity to retain the water during a 50 year flood condition and yet not exceed the existing natural discharge rate. Since Turnbull Hammock is considerably lower than the western side of the property, a self regulating control gate was considered necessary to maintain the water level of the canal in Volusia County at a level of 21 feet mean sea level. In the Brevard County portion, the main canal water level was designed to be kept at an elevation of 20 feet mean sea level by a fixed control structure at the reservoir discharge. It was planned that water would be collected from the area by lateral swales and ditches which would flow into the main canal (testimony of Trelia, Garcia; Exhibits 2,3,4 & 15). The main canal for the project was constructed in 1970. This canal generally parallels the west side of 1-95 in the project area and is approximately 14 1/2 miles in length, some 90 to 100 feet wide and five to six feet in depth. It had been estimated that all the improvements for the project would be completed by December 31, 1973. In early 1971, the Drainage District was in the design stages for the next phase when it learned that Volusia County had adopted the home rule charter that abolished, the South County Drainage District. At this point, work on the project stopped and nothing further was done toward completion of the improvements to the land. In the middle of 1972, after negotiations with Volusia County, Petitioner became aware that various state agencies, same of which had come into being since the original purchase of the land, might have some responsibility in connection with the project. The Department of Pollution control, Department of Natural Resources, the Game and Fresh Water Fish Commission, and the Trustees of the Internal Improvement Trust Fund were contacted to see if they had any requirements as to the proposed improvements. The Department of Pollution control was the only agency which expressed an interest or concern in the matter. Petitioner also ceased sales in the middle of ;1972 after discussions with the Florida Land Sales Division, because of the uncertainty of the situation at that time. During the remainder of 1972, Petitioner's representatives had various discussions with officials of the Department of Pollution Control at Tallahassee, but was advised that nothing definitive could be accomplished on the drainage plan pending a resolution of the status of the South County Drainage District which was in litigation at the time. Around October, 1972, as a result of discussions with various county officials and the Department of Pollution Control, Petitioner decided that an environmental impact study would be, beneficial and therefore retained the services of Brevard Engineering Company of Cape Canaveral, Florida, to make such an environmental assessment of Cape Atlantic Estates. This report was completed in February, 1973, and transmitted to the Department of Pollution Control in April. Although there were numerous conversations with Tallahassee representatives of the Department of Pollution Control during the remainder of the year, it was not until early 1974 that petitioner was advised it should start discussing the matter with the Department's central regional office in Orlando. A meeting was held at Orlando between Petitioner's representatives and officials of the regional office in March, 1974 at which time the details of the project were reviewed. Mr. Woods, the regional engineer for the Orlando office at that time, indicated that he wished to study the matter further because he was not familiar with the environmental study which had been received from their Tallahassee office. There followed a field trip to the project area where Mr. Garcia, the project engineer,, and two members of the Orlando regional office of the Department, Mr. Hulbert and Mr. Medley, looked over the area. In April, 1974, there was another meeting with Mr. Woods at which time he indicated that the project would be approached by the Department as a potential pollution source at any points where the waters went outside the property boundaries. This was followed up by a letter from Mr. Woods received by Petitioner in June, 1974, which stated that in view of the primary interest of his office to protect and preserve water quality as to the project, it was recommended that strong consideration be given to modifying the drainage plan to allow for reduction in the following areas: Draining of swamps, marshes, and wet lands which is in general detrimental to water quality by the removal of natural filtration and assimilative systems from the service of treatment of stormwater runoff. Introduction of canals and artificial waterways degrade water quality by virtue of their stagnating effect and general magnification of adverse effects in (1) above by lowering the ground water table. Transporting of water across natural barriers and separate watersheds is generally detrimental to water quality by virtue of a net change of flow patterns and characteristics by reducing or increasing the normal waterbudget in the area. Mr. Woods also pointed out in his letter that, although it was recognized the gridiron pattern of the project made maximum utilization of the available land his office felt that a significant reduction in adverse effects as indicated could be achieved by utilizing the natural systems as much as possible, and that this would require maximum utilization of the existing wetlands, provisions for on-site retention if and where practical, and selective planting to provide for natural filtration and nutrient assimilation. He further indicated that it would be necessary to obtain a water quality certification from his Department, that Petitioner must show the facilities would be properly constructed and operated, and would be required to produce evidence that either the county or the drainage district was in a position to assume responsibility as the permittee (testimony of Trella, Garcia; Exhibit 10). After receipt of the letter from Mr. Woods, Petitioner engaged the firm of Frederic R. Harris, Inc., consulting engineers, of Ft. Lauderdale, Florida, to prepare a definite project report on drainage that would provide modifications of the drainage plan in order to comply with the objections posed in the Woods letter. This report as prepared by John W. Blue, professional engineer and, although dated September 1974, was available in final form in August at which time a meeting was held between Petitioner's representatives and the successor regional engineer in Orlando, Mr. Thomas Hunnicutt. The meeting was held on August 6, and in attendance were Mr. Gene Medley and Mr. James Hulbert of the regional staff. At this meeting, Mr. Hunnicutt was acquainted with the project and the letter from Mr. Woods, and given the "Harris" report for consideration. This report reflected Petitioner's attempts to satisfy the objections of the department by incorporating the following features in the plan: Specifications to prevent the conveyance of oils, chemicals, silt or other pollutants into the drainage waters during project construction. Planting grass on the erodible earth surfaces exposed during construction. Preservation of about 200 acres of natural hammock ponding sites. Designation of about 75 acres of natural overflow retention areas for filtration of roadside ditch runoff. Construction of about 70 acres of artificial overflow retention areas for filtration of lateral and runoff. Provision for about 209 acres of natural water spreading areas at canal and outfall terminals. Avoidance of direct connections between drainage canals and watercourses or estuaries. Utilization of about 127 acres of dug ponds and existing borrow pits for regulation of runoff peaks. Overexcavation of canals and laterals to make permanent ponds. Whereas the report of the Brevard Engineering Company had been based on a 50 year flood condition, the Harris Report was based primarily upon 10 and 25 year flood conditions. There was a misunderstanding as to Mr. Hunnicutt's comments to Petitioner at this meeting. Petitioner claims Hunnicutt had then stated that the project was in good order and that they should proceed to file their application for a permit. On the other hand, Hunnicutt testified that his remarks were predicated on the fact that since Petitioner had indicated it had made all of the modifications in the project that could he done (by virtue -of the grid system that could not be modified) , he therefore felt there was no point in further discussion. He also was of the opinion that there was sufficient information available at that time to permit consideration of an application by the Department. The Petitioner was provided blank copies of a form entitled Application To Construct/Operate Pollution Sources" (Exhibit 5), and, although Mr. Hunnicutt then acknowledged that this form did not apply too well to the endeavor under consideration he told Petitioner that they should go ahead and file the forms, at Tallahassee, attaching all supporting evidence. The application was filed in the joint names of Volusia County and Atlantic International Investment Corporation and signed by the president of the corporation. It was dated September 9, 1974, and submitted and delivered to the Respondent in Tallahassee on September 10, 1974, with a copy being given to the Orlando regional office. Other than receiving a letter dated October 25, 1974, from the Department of Natural Resources indicating that a water quality certification would not be required for the project, Petitioner heard nothing further from the Respondent until it received a letter from Mr. Hunnicutt denying the permit, dated November 6; 1974. This letter said that the regional staff had reviewed the application and based thereon, plus reviews and comments from Brevard and Volusia County Environmental Control, the permit was recommended to be denied because the applicant had not given the Department "reasonable assurance that the results of this project will be in accord with applicable laws, rules and regulations" and that the project "will have significant adverse effects on water quality as well as the aquatic resources in the area. It further stated that pursuant to Chapter 403.087, Florida Statutes, and Chapter 17- 4.07, Florida Administrative Code, the permit was denied and that Petitioner had a right to request a hearing as provided under Chapter 17-4.15, Florida Administrative Code. Petitioner filed its petition for review of the denial of the permit under the aforesaid Chapter 17-4.15, Florida Administrative Code on November 15, 1974 (Exhibits 4, 5, 6, 10, 11, 16; testimony of Mr. Garcia, Mr. Hunnicutt). In processing the application, Mr. Hunnicutt assigned it to Mr. Medley of his office for review. Medley proceeded to contact local agencies including the Volusia County and Brevard County Environmental Sections; Volusia County Public Works Department, St. Johns Water Management District, the Volusia County Environmental Task Force, and the Florida Audubon Society. He testified that all were opposed to the project for various reasons. Aside from the materials attached as exhibits to the application by Petitioner, which consisted of the Brevard Engineering Report, the Harris Report and plans and specifications and chemical test results taken by Department representatives from sample waters ,of the main canal the additional written materials before the Department prior to the, denial of the permit consisted of a letter from Mr. Kinloch, Pollution Control Coordinator of Brevard County, dated October 31, 1974; a letter from the Volusia County Environmental Task Force (a private group of about 25 professional persons who are concerned environmentalists) dated November 4, 1974; and a statement from Cherie Down a biologist with the Brevard County Health Department, dated September 6, 1973 (Exhibits 17,19 and 24). A letter from Gregory Camp, Environmental Control Officer of Volusia County, dated November 5, 1974, was not received in Respondent's Orlando Office until November 7, and therefore was rejected as an exhibit (Exhibit 18 for identification). In addition, Mr. Camp's conclusions were said by the Assistant County Attorney for Volusia County as not being authorized by the County Commission (testimony of Mr. Stuart). About a week before issuance of the denial letter, a meeting had been held at the Orlando Regional Office attended by its chief, Mr. Senkevich, Mr. Hunnicutt, Mr. Hulbert and Mr. Medley. The purpose of the meeting was to arrive at a decision concerning Petitioner's application. The procedure at the region was for the staff to decide the issue involved and then to assign an engineer in charge -- in this case, Mr. Hunnicutt -- to sign the decision letter to the applicant. No minutes of this meeting were made and the decision was a collective one by Mr. Hunnicutt, Mr. Hulbert, and Mr. Medley. They expressed their common opinion at the meeting that the permit application should be denied primarily because of considerations of water quality. Mr. Senkevich testified that he had the authority to overturn, the recommendation of the staff, but since his staff had unanimously concurred in the denial, he felt that their decision was correct. He is a civil engineer and primarily an administrator, but is not familiar with chemistry, biology, or hydrology. At the time, he erroneously believed that hydrological tests had been made by his staff as to the project and was of the incorrect, view that waters of one classification must flow into receiving waters of the same classification. He conceded at the hearing that he had only briefly studied the plan prior to the meeting and indicated that he had been concerned that the project area eventually would be developed with homes that would require septic tanks and cause a considerable problem with the degradation of water in the canals. He therefore was concerned that the canals would not maintain the requirements for Class III waters. He was unfamiliar with the aspect of danger to aquatic resources other than he felt that the main concern had been regarding trees in the area. He recognized that permits could be issued with specified conditions reasonably necessary for the prevention of pollution and that this could have been done, with respect to Petitioner's project. However, he felt that if this were done, it would usually be hard to enforce and so it was easier to insure that the project conformed to requirements at the time of construction rather than attaching conditions to the permit. He believed that if some of the project area which had not been sold could have been utilized for retention of some of the storm water runoff to provide for percolation or water storage, and if certain low areas could have been utilized for something other than lots, this possibly would have cured the objections of the staff. He did not feel that the changes which had been made by the Harris Report were sufficient to overcome the staff's objections to the project. He acknowledged that water tests in the main canal made by the Department since it had been built and prior to November, 1974, had shown an improvement in the canal water quality. He also acknowledged that none of the five criteria for control of storm water runoff set forth by the Department of Pollution Control in an April 1974 memorandum to regional offices (Exhibit 13) were violated by the proposed project (testimony of Hunnicutt, Senkevich). Mr. Medley, a biologist of the department and the project officer for review of Petitioner's application testified that he was mainly concerned because the project was designed in such a way as to eliminate wetland areas that treat and filter stormwater runoff prior to entry into the Hammock area and provide a place for wildlife to propagate. He felt that water and wildlife quality would diminish by reason of the accelerated flow of water caused by the canal system. This would take place by creating an unstable habitat in which there would be less of a variety of organisms by virtue of polluted waters entering the area. Such a condition would reduce the diversity and quality of species of organisms. He also felt that if water was diverted from one basin to another, it would have an adverse effect on biota because of the change in flow. He further believed that the failure of the applicant to address the question of future development of the project area was significant because once development occurs, canals get storm runoff from surrounding areas, become stagnant and high in nutrients. The state is then obliged to insure water quality and has been unable to do so in other projects of a like nature. He also was concerned because the reports attached to the application contained inaccuracies and it was difficult to determine what was reliable and what was unreliable information. His testimony showed that he, too, was under the erroneous impression that a member of the Department had assessed the hydrological aspects of the project when the Department was processing the application, and acknowledged that it would be difficult to determine if water would be degraded until the actual construction had been completed. However, he expressed his opinion that there is presently insufficient technology to create any canal system that would provide water quality to meet state regulations and it was his belief that wetlands should stay as they are in the interest of water quality. At the hearing, he was unable to describe the proposed canal systems for the project or the proposed vegetative filter area at the end of the canal (testimony of Medley) Mr. Hulbert, another Department bilogist, testified it was unrealistic to think that the project would not eventually be developed with hones. His concerns basically were similar to those of Medley concerning canal water quality in the future and as to inconsistencies in reports submitted by the applicant. He felt that the basic problem was the project grid design with canals following such design rather than natural drainage contours, but that modifications could have been made in the design to satisfy the Department's objections if additional buffer zones had been created along and adjacent to the proposed canals. However, he would not have recommended a permit under any circumstances because of the objections of Brevard County and Volusia County. It was his position that in such a situation the Department should deny the permit and then let the matter be determined by a Hearing Officer. He conceded that he had not examined data submitted by either county and that there was, in fact, no data submitted from Volusia County (testimony of Hulbert). Mr. Hunnicutt, the regional engineer, who is an environmental engineer, testified it was the concensus of all at the meeting that everything they had seen pointed to the fact that project drainage couldn't provide water quality sufficient to meet state requirements. His most objectionable aspect of the project was the drainage pattern and the fact that the canals had to be rather deep and did not follow natural contours, because deep canals below the water table would have standing water and no vegetation as would a more shallow drainage system. He felt that the areas of vegetative growth added by the Petitioner in the Harris Report were not large enough and would not be too effective in removing pollutants by the fast flow rate. He also was concerned about inconsistencies in the applicant's exhibits and saw no point in obtaining more test results on peripheral issues because the Petitioner was "locked in" to a deep canal concept. He, too, was under the mistaken notion that the project had been considered by a hydrologist of the department. Although he felt there were changes that could have been made which would warrant issuance of the permit, there was no point in telling the Petitioner about these because its representatives had said they couldn't make any more changes due to the existing grid system. He also agreed with Hulbert that if local agencies objected as they had in this case, the Department would deny the application but that when such objections were received, they were generally in accord with the existing view of the departmental staff. He testified that the question of the impact of the project on shellfish harvesting in the Indian River was not a serious consideration in his mind insofar as denial of the permit was concerned. He acknowledged that a permit could be issued with conditions, but the problem then became whether the applicant could maintain control effectively to enforce the conditions (testimony of Mr. Hunnicutt). A number of expert witnesses of various disciplines were called by the parties to, testify concerning the various ramifications of the proposed construction by the Petitioner. The following findings of fact are made with respect to specific material aspects of the case: The construction of homes on the tracts at Cape Atlantic Estates in any appreciable volume or any extensive use of the land in the next ten years is highly unlikely. This is due to time required for construction of the drainage facilities, and to the fact that most of the land contracts will not be paid out until the 1980's since owners of the tracts will not secure possession of their land until they have completed payment therefor. The land is not suitable for the installation of septic tanks because of the shallow soil and building permits will not be issued because of the dead-end roads in the project and the absence of paved roads ajoining the property (Exhibit 2, testimony of Trella, Maisel, Blue and Ford). It is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds and control devices envisioned in the drainage plan will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. Drainage of the land area by the construction will produce changes in the environment, but also will make the land accessible to owners, and to some extent may benefit the owners of nearby parcels by draining surface waters and lessening salt water intrusion. One owner of adjoining land objects to any changes in its present natural state (testimony of Blue, Hudson, Stock, Medley, Hunt, Kuperberg, White, De Wees, Fogel & Davenport) Draining and developing the project area will change the surface water flow characteristics by reducing the amount of time water is concentrated or retained in the natural area. This will undoubtedly increase the peak flows and volume of water generated from the area as compared with natural discharge. However, this increase will not exceed the capability of Turnbull Hammock to accept these flows, and increased quantities of waters in the Hammock probably would be beneficial by improving its soil conditions. The increase in peak flows and runoff volumes attributable to the project will not exceed 16 percent of the present ten year storm runoff into the Indian River. In terms of groundwater, recharge in the Cape Atlantic Area occurs only on the Atlantic Coastal ridge. A lowered water table, the result of improving drainage, will decrease the fresh water lead thereby reducing recharge. However, the water table will be lowered only one or two feet and if it is maintained with control structures at these levels as contemplated, improving drainage will not have a serious effect on the quality or quantity of the non-artesian water in the shallow aquifer in the area. The water from approximately 80 percent of the land area will flow into Turnbull Hammock and, in the southwest section of the project area, the water will be held in retention ponds and eventually released in a natural flow. Some water will go to the west toward the St. Johns River basin but it is impossible to tell how much flow this will be. The project will have no significant effect on Lake Harney and it is too far removed from the St. Johns River to have any great impact on its conditions. The drainage of the middle area of the project is ill-defined and water can flow either east or west, depending on how much rain has fallen. In the flat area to the north, water can run in both directions. Passage of water through the designed holding areas vegetation, and then reoxogenation in the canals and spreading systems to Turnbull Hammock will improve surface water quality at the site by creating motion. The roadside swales which bring water to the middle lateral canals will lower the ground water table several feet and this may well improve the water system because presently it is ponded and evaporates or filtrates into the atmosphere. Evidence of some salt water intrusion at the lower end of the Hammock area is evidenced by decayed cypress trees which are not salt water tolerant. Additional fresh water in the Hammock would improve this condition (testimony of McElroy, Blue, Clark, Hudson, McClouth; Exhibit 22). Although the waters in the main canal may not always have met all of the regulatory criteria for Class III waters under Department regulations, its quality has improved over the past several years, particularly with respect to the presence of dissolved oxygen. This is in keeping with the opinion of the experts who agreed that construction produces a temporary. adverse effect on water quality, but the waters soon stabilize and vegetation thereafter appears. When the canal system is completed and connected, a natural flow of water will occur to wash out minerals and other harmful substances, and increase the amounts of dissolved oxygen in the water. It is therefore considered unrealistic to use the test reports obtained from water samples in the present dead-end main canal because they cannot be considered representative of the quality of the water that will be present when the drainage system is in operation. Although it cannot be determined what the exact quality of the canal waters will be when in full operation, there are certain projected consequences which reasonably may be considered likely to occur. After construction of the drainage facilities, the flow of water Bill accelerate and this, in turn, can diminish the quality of animal and plant life to some degree in the Hammock area by reducing the diversity of species. The Hammock is normally anaerobic and nutrients are assimilated there to produce trees, low-lying vegetation, and animal life. Although an increased flow of fresh water will be beneficial to dominant trees, low-lying vegetation might suffer somewhat with a consequent impact on the organisms that feed upon them. However, this is a temporary condition during heavy rain and the degree of change in organisms depends on the frequency of flow and how long the water stays in the Hammock area. Added fresh water in the Hammock will reduce salt water intrusion with consequent beneficial effects. The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oils, and other wastes. Although several expert witnesses foresee eutrophication of the water in the main canal during stagnant periods of the dry season and then flushing of undesirable materials and nutrients accumulated by the eutrophic process into the Hammock during the wet season, the designed holding structures with shallow margins to encourage vegetation and the increased use of natural areas at the north outfall of the project area will filter and reduce substantially the amount of any undesirable material entering the Hammock. Canal systems with standing water are sometimes prone to eventually becoming clogged with aquatic plant life, such as water hyacinths and hydrilla. This, in turn, requires periodic destruction of the plants, usually by chemicals, in order to permit waterflow to continue. Though this possibly may be expected in the main, canal at some point in the future, the planned vegetative filtering system should control excessive entry of the chemical and other pollutants into the Hammock. During the period 1970-74, there was no growth of such plants in the dead-end main canal and no indication that it had become eutrophic (testimony of Blue, Morris, Clark, Hudson, Medley, Hulbert, Down, Stock, Ross). Although the area where Turnbull Creek enters the Indian River is designated as Class II waters, oysters or other shellfish are not present to any extent in the designated area. The designated shellfish harvesting area is in the Indian River south of the Brevard County line. The Indian River is moderately high in salinity and a wedge of this water goes into Turnbull Creek and then to the Hammock. The mixing zone of water is at the entrance of Turnbull which flows into the Indian River. Beyond this mixing zone where fresh water meets salt water, if shellfish exist, the limited amount of fresh water entering the river would have no significant effect upon their growth. Oysters need between ten to 30 parts per thousand salinity in the water for best growth and if the project water flowed into the Indian River the salinity would remain the same approximately 20 to 30 parts per thousand. In fact, a decrease in salinity in the water to some extent favors growth of oysters. However, increased rainfall and runoff can increase bacterial counts in shellfish and decrease the incidence of shellfish predators (testimony of Clark, Kinloch, Down). No significant diversion of waters from the Cape Atlantic Estates areas from natural drainage basins can be established other than some diversion in the eastern portion of the project area. Other than that the flow of ground water cannot be determined with accuracy and, in any event, the project would have little effect on surrounding lakes in the St. Johns River basin. Diversion would seldom occur except when there is a major storm because unless rainfall exceeds one or two inches an hour, it normally will be absorbed by the sandy soil (testimony of Blue, McClough, Hudson).
The Issue The 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 Background Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project. Elimination of Natural Drainage The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER. Planned Roadway The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review. High Water Mark and the Setting of the DER Jurisdictional Line The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions. Fill Calculations The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements. De Novo Permit Review Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state. Balancing of Interests In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Area of Controversy All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur. Recommendation Regarding the Assessment of Attorneys Fees and Costs Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.
Recommendation Based upon the foregoing, it is recommended: That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose. RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035 Petitioners' proposed findings of fact are addressed as follows: Accepted. See HO #11. Rejected. Does not allow for change in seasons or conditions. See HO #11. Accepted. See HO #11. Accepted. See HO #15. Accepted. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding. Accepted. See HO #3. Respondent Telese's proposed findings of fact are addressed as follows: Accepted. See HO #1, #2 and #18. Accepted. See HO #1, #2, #20 and #23. Accepted. See HO #20 and #21. Accepted. See HO #21. Accepted. See HO #22 - #27. Accepted. See HO #13 and #16. Denied. Contrary to fact. See HO #4 - #17. DER's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1 and #2. 2. Accepted. See HO #1. 3. Accepted. See HO #1 - #3. 4. Accepted. See HO #2, #18 and #20. 5. Accepted. See HO #20, #21 and #24. 6. Accepted. 7. Accepted. 8. Accepted. 9. Accepted. 10. Accepted. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. 15. Accepted. 16. Accepted. 17. Accepted. See HO #19. 18. Accepted. 19. Accepted. See HO #19. 20. Accepted. See HO #21. 21. Accepted. See HO #18. COPIES FURNISHED: Ines D. Degnan 8410-144th Lane North Seminole, Florida 34636 David R. Chirington 8400-144th Lane North Seminole, Florida 34646 Alton Jeffcoat 8340-144th Lane North Seminole, Florida 34646 Carol B. Newton 8450-144th Lane North Seminole, Florida 34646 Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR RUPPEL & BURNS, P.A. 911 Chestnut Street Clearwater, Florida 34616 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
Findings Of Fact The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings; (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at 26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek; (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which evidence from the parties as well as public testimony was received. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of 9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the 96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods. Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park. Vanderipe Slough encompasses an area of approximately 500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately 2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689). DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 31 day of July, 1986. APPENDIX Rulings on Individual Petitioners' Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 30. Rejected since it is not based on competent substantial evidence. Adopted in Finding of Fact 22. Rejected since it is not based on competent substantial evidence. Rejected as irrelevant. Adopted in Finding of Fact 23. 8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Findings of Fact 18, 24, 25. Adopted in Finding of Fact 34. Adopted in Finding of Fact 27. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14. 20 Rejected since it is not based on competent substantial evidence. Rulings on Myakka's Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 3, 4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 1, 7. Adopted in Finding of Fact 7. 10-13 Adopted in Finding of Fact 19. 14-15 Rejected since they are not based on competent substantial evidence. Adopted in Finding of Fact 19. Adopted in Finding of Fact 7. 18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1. 23,24 Rejected as irrelevant and unnecessary. 25 Adopted in Finding of Fact 1. 26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33. 32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9. 37,38 Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. 51-56 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 27. Adopted in Finding of Fact 24. Rejected in Finding of Fact 2r 3. Rejected since it is not based on competent substantial evidence. 62,63 Rejected as irrelevant and unnecessary. 64 Adopted in part and rejected in part in Finding of Fact 17. 65,66 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Rejected as cumulative. Rejected as irrelevant and unnecessary. 74,75 Adopted in Finding of Fact 13. Rejected in Finding of Fact 26. Adopted in Finding of Fact 13. 78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 81 Adopted in Findings of Fact 11, 12. 82,83 Rejected as irrelevant and unnecessary. 84 Adopted in Finding of Fact-21. 85-87 Adopted in Finding of Fact 11. 88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative. 92-95 Adopted in Finding of Fact 17. 96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary. 98-99 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. 103-106 Adopted in Finding of Fact 27. Adopted in Finding of Fact 6. Adopted in Finding of Fact 27. 109,110 Rejected as irrelevant and not based on competent substantial evidence. 111 Adopted in part in Finding of Fact 17. 112-120 Adopted in Finding of Fact 27. 121-126 Rejected as unnecessary and cumulative. 127 Adopted in Finding of Fact 27. 128-130 Rejected as unnecessary. 131-168 Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 24. 172-174 Adopted in Finding of Fact 27. 176-179 Rejected as irrelevant, unnecessary, and cumulative. 180 Adopted in Finding of Fact 18. 181-184 Rejected as irrelevant, unnecessary, and cumulative. Rejected as unnecessary. Rejected in Finding of Fact 20. 187,188 Adopted in Finding of Fact 20. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. 192,193 Adopted in Finding of Fact 27. 194 Adopted in Finding of Fact 25. 195-198 Adopted in Finding of Fact 20. 199,200 Rejected as irrelevant and unnecessary. 201 Adopted in Finding of Fact 9. 202,203 Adopted in Finding of Fact 30. 204-206 Adopted in Finding of Fact 21. 207 Rejected as cumulative and unnecessary. 208-211 Adopted in Findings of Fact 21, 22, 27. 212,213 Adopted in Finding of Fact 23. 214 Rejected as irrelevant and cumulative. 215-218 Adopted in Findings of Fact 21. 22, 27. 219-223 Adopted in part in Finding of Fact 27, but otherwise rejected as unnecessary, cumulative and otherwise not based on competent substantial evidence. 224,225 Rejected as irrelevant and unnecessary. 226,227 Adopted in Finding of Fact 34. 228 Rejected as not based on competent substantial evidence. 229,230 Rejected as cumulative. 231-233 Rejected as not based on competent substantial evidence. 234,235 Adopted in Finding of Fact 28. 236 Adopted in Finding of Fact 30. 237-243 Adopted in part in Finding of Fact 28-30, but otherwise rejected as cumulative and not based on competent substantial evidence. 244-246 Rejected as cumulative and otherwise not based on competent substantial evidence. 247,248 Adopted in Finding of Fact 31. 249-259 Adopted in Findings of Fact 2-5, 32. 260-262 Adopted in Finding of Fact 32. 263 Adopted in Finding of Fact 29. 264 Adopted in Finding of Fact 32. 265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32. Adopted in Finding of Fact 25. Adopted in Finding of Fact 29. Adopted in Findings of Fact 25. 29, 32. Adopted in Finding of Fact 19. Adopted in Findings of Fact 19, 29. Adopted in Finding of Fact 29. 276,277 Adopted in Finding of Fact 25. Adopted in Finding of Fact 22. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 25. 281-283 Rejected as irrelevant and unnecessary. 284 Adopted in Finding of Fact 29. 285 Adopted in Findings of Fact 29, 32. 286 Adopted in Findings of Fact 19. 32. 287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence. 289-296 Rejected as irrelevant and unnecessary. Rulings on City's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 33. 5 Rejected as irrelevant and unnecessary. 6-11 Adopted in Finding of Fact 1. 12-14 Adopted in Finding of Fact 6. 15 Rejected as irrelevant. 16 Adopted in Finding of Fact 7. 17 Rejected as irrelevant. 18 Adopted in Findings of Fact 27, 33. 19-21 Adopted in Finding of Fact 27. 22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27. 31 Rejected as not based on competent substantial evidence. 32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6. 36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence. 45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary. 56-58 Adopted in Finding of Fact 8. 59 Rejected as irrelevant and unnecessary. 60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary. 65 Adopted in Finding of Fact 11. 66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence. 70-84 Adopted in Finding of Fact 13. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 13. 87-92 Adopted in Finding of Fact 27. Rejected as unclear. Adopted in Finding of Fact 27. 95-100 Adopted in Finding of Fact 14. 101 Rejected in Finding of Fact 14. 102-104 Adopted in Finding of Fact 14. Rejected as irrelevant. Adopted in Finding of Fact 15. Adopted in Finding of Fact 13. Adopted in Finding of Fact-16. Adopted in part and rejected in part in Finding of Fact 27. 110,111 Rejected in Finding of Fact 27. 112 Rejected as irrelevant. 113-118 Rejected in Finding of Fact 27. 119,120 Adopted substantially in Finding of Fact 11. Adopted in Finding of Fact 16. Adopted in Finding of Fact 2. Adopted in Finding of Fact 17. 124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant. 126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary. 131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary. 136-140 Rejected in Finding of Fact 17. Rejected in Findings of Fact 11, 17. Adopted in Finding of Fact 16. 143-148 Rejected in Finding of Fact 27 and otherwise unnecessary. 149 Adopted in Finding of Fact 27. 150,151 Rejected in Finding of Fact 27. Adopted in Findings of Fact 17, 18. Adopted in Finding of Fact 17. Adopted in part and rejected in part in Finding of Fact 18. 155,156 Rejected in Finding of Fact 17. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 13, 14. Rejected as irrelevant. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 26. Rejected as unnecessary and cumulative. 163-165 Rejected as not based on competent substantial evidence. 166-169 Adopted in Finding of Fact 20. 170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted in part and rejected in part in Finding of Fact 20. Adopted in Finding of Fact 23. Adopted in Finding of Fact 9. Rejected in Finding of Fact 27. 178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence. 189,190 Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 20. 193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence. 196 Adopted in Finding of Fact 9. 197-199 Adopted in Finding of Fact 21. 200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary. 207,208 Adopted in part in Finding of Fact 21. 209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 21. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 9. Rejected as cumulative and unnecessary. 222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary. 225 Rejected as unnecessary and not based on competent substantial evidence. 226 evidence. Rejected as not based on competent substantial 227,228 Rejected as irrelevant. 229-232 Adopted in Finding of Fact 3. 233 Rejected as irrelevant. 234,235 evidence. Rejected as not based on competent substantial 236 Adopted in Finding of Fact 3. 237,238 Adopted in Finding of Fact 5. 239 Adopted in Finding of Fact 3. 240-243 Rejected as irrelevant. 244-246 Adopted in Finding of Fact 31. 247-250 Adopted in Finding of Fact 4. 251 evidence. Rejected as not based on competent substantial 252,253 Adopted in Finding of Fact 5. 254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence. 256,257 Adopted in Finding of Fact 31. 258-260 Adopted in Finding of Fact 2. 261 Rejected as irrelevant. 262 Adopted in Finding of Fact 2. 263 Adopted in Finding of Fact 5. 264 Adopted in Findings of Fact 2, 11. 265-267 Rejected as irrelevant. 268 Adopted in Finding of Fact 5. 269-272 Rejected as irrelevant and unnecessary. 273,274 Adopted in Finding of Fact 31. 275-278 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 279-284 Rejected in Finding of Fact 32. Rulings on the Department's Proposed Findings of Fact. 1 Adopted in Finding of Fact 5. 2,3 Adopted in Findings of Fact 2. 3, 4. 4 Adopted in Finding of Fact 7. 5-8 Adopted in Finding of Fact 9. 9 Adopted in Finding of Fact 21. 10-12 Adopted in Finding of Fact 1. 13 Rejected as irrelevant and unnecessary. 14,15 Adopted in Finding of Fact 33. 16-23 Rejected as irrelevant and unnecessary. Rejected since this is a conclusion of law rather than a proposed finding of fact. Rejected as unclear. Adopted in Finding of Fact 14. 27-30 Adopted in Finding of Fact 13. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17. Rejected as speculative and not based on competent substantial evidence. Adopted in Finding of Fact 24. 35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11, 12. Rejected as unnecessary. Adopted in Finding of Fact 16. 47,48 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. 51,52 Adopted in Finding of Fact 17. 53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17. Rejected as unnecessary and cumulative. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. 63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. 76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22. Adopted in Finding of Fact 8. Rejected in Finding of Fact 8. Adopted in Finding of Fact 21._ Adopted in Finding of Fact 27. 87,88 Rejected as a conclusion of law rather than a proposed finding of fact. 89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary. 94 Adopted in part in Finding of Fact 21. 95,96 Adopted in part in Finding of Fact 22. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 21, 22. 99-103 Adopted in Finding of Fact 27. Adopted in Finding of Fact 22. Rejected as unclear. Adopted in Finding of Fact 22. 107,108 Adopted in Finding of Fact 27. 109 Adopted in Finding of Fact 22.. 110,111 Adopted in Finding of Fact 27. 112-114 Rejected as unnecessary and cumulative. 115-117 Adopted in Finding of Fact 11. 118 Rejected as cumulative. 119-121 Adopted in Finding of Fact 27. 122 Adopted in Finding of Fact 6. 123-136 Adopted in Finding of Fact 27. COPIES FURNISHED: Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Greg D. Sefton 5781 Old Ranch Road Sarasota, Florida 34241 Edward P. de la Parte, Jr. Attorney at Law 705 East Kennedy Boulevard Tampa, Florida 33602 Ralph A. Kehn Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241 Wyatt S. Bishop Route 1, Box 74-203 Sarasota, Florida 34241 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209 Sarasota, Florida 33577 Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241
Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
The Issue The issues concern the request by Petitioner for a permit(s) to dredge in a man-made canal and to construct two boat houses and six boat slips.
Findings Of Fact Petitioner owns property in Marion County, Florida, from which he has legal access to a man-made canal that intersects the Oklawaha River. This river is an Outstanding Florida Water body. The canal and river are in Marion County, Florida. In November 3, 1989, Respondent received a permit application from Petitioner. This application sought approval to dredge in the man-made canal which is approximately 800 feet long. That canal is owned by the Canal Authority of Florida. The dredging activity would include removal of material at the mouth of the canal as it intersects the Oklawaha River. The applicant intends to expand by dredging the length in the landward extent of the canal from 60 feet to 120 feet and the width from 50 feet to 170 feet. In the landward extent of the dead-end canal, what is described as the boat basin, the applicant seeks approval for the construction of six boat slips and two boat houses. The relative design of the these activities and the placement of the spoil materials removed in the dredging are shown in the application to include responses to the omissions request. That application is found as the Respondent's Composite Exhibits No. 1. At present the applicant has a 30 foot pontoon boat in the dead-end canal. He has a 17 foot bass boat and his neighbor has a 24 foot pontoon boat that use the canal. With the advent of as many as six boats available for the six slips contemplated by this application, the boats would vary in length from 16 feet to 30 feet. In carrying out the dredging activities Petitioner states that he would use anchored turbidity curtains at the intersection of the canal and the Oklawaha River while dredging activities transpired. The exact location of the proposed project is the south shore of the Oklawaha River in Marion County, Florida, in Section 35, Township 14 South, Range 23 East. On June 1, 1990, Respondent noticed its intent to deny the permit. Following that denial Petitioner timely requested a formal hearing to consider his entitlement to the permit(s). The history of the dead-end canal in question is not clear from the record. Its present condition does suggest that it has existed for a considerable number of years. Its appearance does not reflect that routine maintenance has been performed to preserve its original configuration to include maintaining its original depths throughout its course. At the location where the canal intersects the Oklawaha River, the river runs in an easterly direction for a short stretch. Its flow regime at that point is quite swift. This intersection is in a bend of the river. The high energy flow at that juncture has created an undercut at the mouth of the canal and for some distance on either side. The landward extent of the canal or area of the proposed boat basin is an area which was dredged from uplands. The canal extends in an northerly direction to the river through a wetlands swamp. Spoil material from the original dredging had been placed on the east and west side of the canal. There was sufficient deposition on the west side to allow vehicular traffic. That bank of the canal provides physical access to the river. In the Petitioner's experience, at around the time of the application process the water levels in the river and canal were as low as they had been during his three years of observation. At other times during that three year period the water levels had been approximately two feet higher than the low levels described. It is, however, unclear from the record what the normal high and low ranges of water levels in the river would be at this location. Petitioner has observed that the water levels in the canal during the time in question is three feet in most of the canal except at the mouth as it intersects the river where the water level is shallower. As seen in the photographs a great deal of vegetation is present in the water in the canal causing it to be in a marsh like condition. Emergent vegetation exists in certain portions of the canal which indicates a generally permanent shallow water condition. The low water level in the mouth of the canal which has been described is only a few inches deep. The bottom of the canal where it enters the river is more substantial in compaction as compared to the rest of the canal. It is not clear when this compaction occurred, in particular whether it occurred following the original construction of the canal. Navigation is a problem for most boats in the condition of the canal as it was described at the time of hearing. Petitioner describes that he and other fishermen have navigated in the canal when the water levels were high enough to allow that navigation. The canal in its present condition serves as a habitat for wildlife. The wildlife includes blue winged teal, little blue heron, large mouth bass, bream and alligators. In order to mitigate the effects of this project Petitioner has offered to place a recycling water fall in or near the proposed boat basin to allow oxygen to be placed in that basin. This is described in the application documents. Petitioner proposes to landscape the slopes of the basin with boulders and natural vegetation. He proposes to place "no wake" signs along the canal. Notwithstanding the intent to use a turdibity curtain to protect against violations of turdibity standards in the waters in the canal and the adjacent Oklawaha River while dredging, problems of violation of Respondent's turbidity standards are expected to occur. This occurrence is probable given the relatively fast current in the river which precludes the efficient use of turbidity screens or curtains. Dead-end canals such as that envisioned in this project have water quality problems. Enlargement of the dead-end canal does not assist in addressing the problems, even taking into account the intention by Petitioner to recycle water in the proposed boat basin. The water quality standards that are likely to be violated concern dissolved oxygen and BOD (biological oxygen demand). The assurances Petitioner has given about these standards in terms of protections against violations are not reasonable assurances. The addition of six boat slips and the potential for greater use of the canal by boats other than those that presently exist creates an opportunity for other water quality violations. Those possibilities pertain to turbidity problems through the stirring of bottom sediments and a violation of standards for turbidity and nutrients through that process. Oils and greases are associated with the placement of boats in the dead-end canal and a violation of Respondent's water quality standards for oils and greases is possible. During high water events and other flushing events when water from the canal enters the river, the poor quality of that water from the canal will reduce the water quality in the receiving body of water, the Oklawaha River, potentially causing water quality violations in the river. More specifically related to the artificial water fall proposed by Petitioner, such a device is not generally found to be an acceptable solution in addressing any potential water quality problems created by the expansion of the dead-end canal system. In any event, that system of aeration only would address the dissolved oxygen water quality parameter and not other regulatory parameters. The dredging of the canal has adverse affects on the fish and wildlife presently using the waters in the canal through the adverse affect on their habitat. When the water quality is degraded as described it adversely affects public health, safety and welfare for those who use these waters. Petitioner has observed logs jamming in the curve of the river and the accumulation of sand around that area further closing the mouth of the canal. In order to keep the logs free from the canal entrance they have to be moved on a weekly or monthly basis. Petitioner would attempt to save as many trees as possible when dredging in the mouth of the canal. Petitioner intends to sod slopes where dredging occurs and to place berms to keep water from running off into the canal and to prohibit erosion in the area of the boat basin. Petitioner has in mind making it convenient for boats to turn around in the landward end of the dead-end canal and hiding those boats from the sight of persons on the river by keeping them in that area. However, Petitioner acknowledges that when boats negotiate inside the landward extent of the dead- end canal they churn up the bottom sediments and cause problems with water quality. More specifically, Petitioner's right of access to the mouth of the canal is an easement across the property of the Canal Authority of Florida. Petitioner owns the area of the boat basin which is at the far end of the canal. Activities by Petitioner in that portion of the canal about which he does not have ownership rights which violate Respondent's environmental regulations would be adverse to the interest of the Canal Authority of Florida. Petitioner intends to improve the road access along the bank of the canal as it offers access to the river. Two hundred fifty to three hundred feet of the canal length moving away from the river is through a swamp which is marshy with weeded vegetation on its slopes. The rest of the length of the canal is through an uplands. As you move up the slopes in the canal it goes from submerged to transitional to upland species of plants. It is a shallow water system where plants can live inundated or exposed. These are types of plants seen along edges of rivers or lakes where water flows slow. At the mouth of the canal, the compacted substrate has the appearance of what you would find on the edge of a deep creek or river channel. This material is compacted clay or rock with a sand overlay. The area is stabilized. The long term impact of this project is the elimination of vegetation within a marshy system thereby removing habitat for aquatic and semi-aquatic invertebrates and vertebrates and their breeding and feeding areas. In the dead-end canal systems the dissolved oxygen problems are presented by a slow moving regime of water and the suspension of nutrients and materials from the banks of the canal. The bottom materials that are stirred up by boats are transported to the river. Ordinarily canals are too deep to support the form of emergent vegetation found in some portions of the canal. The deeper the canal the more difficult the water problems, and the flushing times take longer. This is especially true with long canals such as the one at issue. This contributes to problems with violation of standards related to DO and BOD. While the canal itself is not an Outstanding Florida Water, the Oklawaha River's ambient water quality is at risk with the dredging activities contemplated by this project.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which denies the permit(s) for dredging and construction of boat slips and docks. RECOMMENDED this 21st day of February, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5734 Having considered the proposed facts of the Respondent they are subordinate to facts found. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 C. W. Pardee, Jr. 2769 Northeast 32nd Place Ocala, FL 32670 Douglas H. MacLaughlin, Esquire State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
The Issue The issue is whether Respondent, Krista Howard,2/ is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 28, 2017, and subsequently amended on January 11, 2018.3/
Findings Of Fact The Parties Petitioner Defenders is a Florida non-profit corporation that has been in existence since the mid-1980s or earlier. Defenders' primary purpose is to protect and preserve Crooked Lake so that it may remain an Outstanding Florida Water ("OFW") for all members of the public to use and enjoy. Defenders has more than 25 members who reside in Polk County, Florida. Its membership consists of approximately 100 family memberships, mostly comprised of persons who live on or near Crooked Lake. Petitioners Gerards are riparian landowners on Crooked Lake, whose property is located immediately adjacent to, and slightly to the northwest of, Respondent Howard's property. The Gerards' home address is 1055 Scenic Highway North, Babson Park, Florida 33827. Respondent Howard is the applicant for the Consolidated Authorization for the Dock. Howard's property, which is riparian to Crooked Lake, is located at 1045 Scenic Highway North, Babson Park, Florida 33827. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to that statute. Pursuant to that authority, DEP determines whether to issue or deny applications for ERPs. Pursuant to section 253.002, Florida Statutes, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and, in that capacity, reviews and determines whether to issue or deny, applications for approval to use sovereignty submerged lands.5/ DEP Review of the Application The Dock is proposed to be located on sovereignty submerged lands and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and a sovereignty submerged lands lease are required. On or about February 14, 2017, Todd Rickman, Howard's professional contractor who designed the Dock, filed an Application for a Sovereignty Submerged Lands Lease for Existing Structures and Activities6/ ("Application") with DEP's Southwest District Office, seeking approval to construct and operate the Dock. On or about March 15, 2017, DEP requested additional information regarding the project. Howard submitted the requested items, and the Application was determined complete on May 30, 2017. Notice of DEP's receipt of the Lease portion of the Application was provided as required by section 253.115. The comment period commenced on June 15, 2017, and ended on July 6, 2017. As previously noted, on July 28, 2017, DEP issued the Consolidated Notice of Intent, proposing to issue the Consolidated Authorization to construct and operate the Dock. On January 11, 2018, DEP amended the Consolidated Notice of Intent to accurately reflect the "clearly in the public interest" permitting standard for the ERP portion of the Consolidated Authorization, which is applicable to projects proposed in OFWs. Background Crooked Lake Crooked Lake (also, "Lake") is an approximately 4,247-acre freshwater lake in Polk County, Florida. It is an irregularly shaped karst lake roughly resembling an inverted "L," with the longer axis running north to south. It is located on the Lake Wales Ridge. Crooked Lake is designated an OFW by Florida Administrative Code Rule 62-302.700(9)(i)9.7/ The Lake is classified as a Class III waterbody pursuant to Florida Administrative Code Rule 62-302.400(15).8/ The elevations and bottom contours in Crooked Lake vary substantially throughout the Lake. Thus, water depths may, and generally do, vary substantially from one location to another throughout the Lake. The water levels in Crooked Lake fluctuate frequently and, at times, dramatically, depending on rainfall frequency and amounts. A graph prepared by Petitioners' Witness James Tully, using Southwest Florida Water Management District ("SWFWMD") historical water level data for Crooked Lake measured in National Geodetic Vertical Datum of 1929 ("NGVD") shows water levels historically fluctuating from as low as approximately 106 feet in or around 1991, to as high as 123 feet NGVD in or around 1951, 1961, and 2004. Rickman generated a water level graph using the Polk County Water Atlas ("Atlas") website. This graph, which covers the period of 2008 through mid-2017, shows that the water levels in Crooked Lake, for this most recent ten-year period, fluctuated approximately five feet, with the lowest levels falling slightly below 114 feet NGVD for relatively short periods in 2012 and 2013, and the highest level rising to approximately 119 feet NGVD in mid-2017. The competent, credible evidence shows that although water levels in Crooked Lake may occasionally rise to levels at or around 123 feet NGVD, those conditions have been associated with extreme weather events such as hurricanes, are atypical, and are relatively short-lived. The maximum water level in Crooked Lake is subject to control by a weir located south of the Lake. Discharge from the weir occurs at a control elevation of 120 feet NGVD. As such, the water level in parts of Crooked Lake may, at times, temporarily exceed 120 feet NGVD, but will eventually decrease to 120 feet NGVD as the water flows south and is discharged through the weir. To the extent rainfall does not recharge the Lake, water levels may fall below 120 feet NGVD. The ordinary high water line ("OHWL"), which constitutes the boundary between privately-owned uplands and sovereignty submerged lands, has been established at 120.0 feet NGVD for Crooked Lake. Crooked Lake is used for recreational activities such as fishing, swimming, boating, and jet ski use, and there are public and private boat ramps at various points on the lake that provide access to the Lake. There is no marina having a fueling station on the Lake. The credible evidence shows that the northeast portion of the Lake, where the Dock is proposed to be located, experiences a substantial amount of boat and jet ski traffic. This portion of the Lake also is used for swimming, water- skiing, wakeboarding, the use of "towables" such as inner tubes, and for other in-water recreational uses. The Proposed Dock Howard holds fee title by warranty deed to parcel no. 333028-000000-033140 located at 1045 Scenic Highway, Babson Park, Florida.9/ This parcel has approximately 110 linear feet of riparian shoreline on Crooked Lake. The Dock is proposed to be constructed and operated on sovereignty submerged lands adjacent to this riparian upland parcel, which is located on the eastern shore of the northeastern portion of Crooked Lake. The Dock, as proposed, is a private single-family residential dock that will be used by Howard for water-dependent recreational purposes, such as specifically, boating, fishing, swimming, and sunbathing. The Dock is not proposed to be constructed or used by, or to otherwise serve, commercial or multifamily residential development. The Dock is configured as a "T," supported by pilings and consisting of a 4-foot-wide by 152-foot-long access walkway, and an approximately 1,983-square-foot terminal platform comprised of a lower-level platform having four vessel slips and a flat platform roof. Two sets of stairs lead from the lower level of the terminal platform to the platform roof, which will be elevated eight feet above the lower-level platform and will have a railed perimeter. The platform roof will function as a roof for the boat storage area below and a sundeck. The four slips on the Dock's lower-level platform will be used for permanent mooring for up to six watercraft: a 23-foot-long ski boat,10/ a 20-foot-long fishing boat, and four jet skis. As proposed, the Dock will occupy a total area of approximately 2,591 square feet. The lower platform of the Dock is proposed to be constructed at an elevation of 121 feet NGVD. The roof/upper platform will be constructed eight feet above that, at an elevation of 129 feet NGVD. The pilings supporting the Dock will be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water. Pursuant to the Specific Purpose Field Survey ("Survey") for the Lease submitted as part of the Application, the Lease will preempt approximately 2,591 square feet, and closely corresponds to the footprint of the Dock. The submerged lands surrounding the Dock that are not occupied by the footprint of the Dock, including the area between terminal platform and the shoreline, are not included in the preempted area of the Lease.11/ The Survey shows "approximate riparian lines" which delineate Howard's riparian area oriented to the center of the waterbody and to the primary navigation channel in the northeast portion of Crooked Lake. As shown on the version of the Survey initially filed as part of the Application, the Dock was proposed to be located approximately 4.7 feet, at its closest point, from the southern riparian line. However, in response to DEP's request for additional information, the Survey was modified in April 2017, to shift the Dock northward within Howard's riparian area. The Dock is now proposed to be located 25.1 feet, at its closest point, from the southern riparian line, and 29.4 feet, at its closest point, from the northern riparian line. The walkway of the Dock will commence at an approximate elevation of 120 feet NGVD, which corresponds to the OHWL established for Crooked Lake. As previously noted above, the walkway will extend waterward approximately 152 feet, where it will intersect with the terminal platform. The terminal platform will extend another 52 feet waterward. In total, the Dock is proposed to extend waterward approximately 204 feet from the OHWL. Although the Dock would be one of the longest and largest docks on Crooked Lake, the credible evidence establishes that there are several other docks of similar size and/or length on the Lake. Rickman testified that he obtained approvals for, or was otherwise aware of, several docks over 2,000 square feet on the Lake. Additionally, the evidence showed that eight other docks on the Lake are longer than the proposed Dock.12/ Rickman testified that most of the larger docks on Crooked Lake have roofs, and that most of these roofs are pitched, rather than flat.13/ As noted above, the water level in Crooked Lake frequently and, at times, extensively fluctuates. As a result, there are periods during which water depths in parts of the Lake are extremely shallow. Rickman testified that the Dock was designed to extend far enough out into Crooked Lake to reach sufficient water depth to enable Howard to maximize the use of the Dock for boating throughout the year. The Dock is designed to extend out to the point at which the bottom elevation of the Lake is approximately 109.9 feet NGVD. Based on the Atlas' ten-year water level graph for Crooked Lake referenced above, Rickman projected that at this point, the water depth typically would be sufficient to allow Howard to operate her largest vessel, the 23-foot ski boat. The ski boat has a 25-inch draft.14/ The boat will be stored out of the water on a boat lift on the Dock, attached by cables to a sub-roof immediately beneath the platform roof. When being lowered into or hoisted from the water, the boat will be placed in a boat cradle consisting of two containment railings approximately 18 inches high each on either side, and a "V" shaped aluminum bottom with bunks on which the boat is cradled. The aluminum bottom of the cradle was estimated to be two to three inches thick. Although the boat cradle is approximately 18 to 21 inches in "total height,"15/ the cradle does not have to be completely lowered its entire 18- to 21-inch height into the water when used. Steven Howard explained, credibly, that the cradle needs to be lowered into the water only a few inches lower than the ski boat's 25-inch draft to enable the boat to float into or out of the cradle. To that point, Rickman testified that taking into account the 25-inch draft of the ski boat and the "total height" of the boat cradle, between 40 and 44 inches of water depth would be required when the cradle is used in order to avoid coming into contact with the Lake bottom. Based on the Atlas graph showing the lowest water levels for the previous ten-year period at approximately 114 feet NGVD, Rickman designed the Dock to extend out to the 109.9-foot NGVD bottom elevation point. At this point, the projected water depth would be slightly more than four feet during periods of the lowest projected water levels for Crooked Lake. For the Dock to be able to wharf out to 109.9 feet NGVD bottom elevation, it must extend a total of approximately 204 feet waterward into the Lake. The credible evidence establishes that while Howard's ski boat is one of the largest, it is not the largest boat operated on Crooked Lake. Impacts Assessment for Environmental Resource Permit Water Quality Impacts As noted above, Crooked Lake is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in rule 62-302.300 apply to Crooked Lake. The Dock, as proposed to be constructed and operated, is not anticipated to adversely affect or degrade water quality in Crooked Lake. Specifically, as required by the Consolidated Authorization, a floating turbidity curtain will be installed around the boundary of the construction area before construction commences, and it must be left in place until construction is complete and turbidity levels in the work area have returned to background levels. Additionally, as noted, the pilings supporting the Dock must be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water over the life of the structure. The Consolidated Authorization also prohibits the installation and use of fueling equipment at the Dock; prohibits the discharge of sewage or other waste into the water; prohibits liveaboards; prohibits fish cleaning or the installation of fish cleaning stations unless sufficient measures such as sink screens and waste receptacles are in place; and prohibits repair and maintenance activities involving scraping, sanding, painting, stripping, recoating, and other activities that may degrade water quality or release pollutants into the water. Although the Consolidated Authorization imposes a specific condition requiring, for all vessels using the Dock, a minimum 12-inch clearance between the deepest draft of the vessel (with motor in the down position) and the top of submerged resources, it does not specifically address circumstances where the use of the boat cradle, rather than the vessel itself, may come into contact with the Lake bottom. DEP's witness acknowledged that if the boat cradle were to come into contact with the Lake bottom, water quality standards may be violated. Given the information presented at the final hearing regarding the operation of the boat lift and the need for sufficient clearance between the bottom of the boat cradle and the lake bottom, the undersigned recommends that a specific condition be included in the Consolidated Authorization prohibiting contact of the Lake bottom by the boat cradle. This recommended condition is set forth in paragraph 73.A., below. Upon consideration of the conditions imposed by the Consolidated Authorization discussed above, including imposing a specific condition that prohibits contact of the boat cradle with the Lake bottom, the undersigned finds that the Dock will not adversely affect or degrade the water quality of Crooked Lake. Water Quantity Impacts The Dock, as proposed, is a piling-supported structure that will not impound, store, or impede the flow of surface waters. As such, the Dock will not cause adverse flooding to on-site or offsite property, will not result in adverse impacts to surface water storage and conveyance capabilities, and will not result in adverse impacts to the maintenance of surface or ground water levels. Impacts to Fish, Wildlife, and Listed Species and Habitat The Application states, in section 5, question 6, that there is no vegetation on Howard's riparian shoreline. However, the Survey depicts an area of emergent grasses approximately 60 feet wide and extending diagonally approximately 70 feet waterward into the Lake. The Survey depicts this grassed area as straddling the riparian line between Howard's property and the adjacent parcel to the south. The Survey shows the Dock as being located a significant distance waterward of the grassed area, such that no portion of the Dock will be located on or near this grassed area. Additionally, an aerial photograph of Howard's property and the Lake waterward of Howard's property shows a smaller patch of what appears to be emergent grasses further offshore. This grassed area is not shown on the Survey, and it cannot definitively be determined, by examining the Survey and the aerial photograph, whether this grassed area is growing in an area that will be impacted by the Dock. Steven Howard acknowledged that this smaller grassed area may be located at or near the jet ski slip on the southeastern side of the Dock. An environmental assessment of this smaller grassed area was not performed or submitted as part of the Application. Thus, any value that this area may have as fish and wildlife habitat was not assessed as part of DEP's determination that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat. In order to provide reasonable assurance that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat, the undersigned recommends including a specific condition in the Consolidated Authorization requiring this smaller grassed area to be completely avoided during construction and operation of the Dock, or, if avoidance is not feasible, that an environmental assessment be performed prior to construction so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated to determine whether minimization and compensatory mitigation should be required. This recommended condition is set forth in paragraph 73.B., below. As previously noted, the Consolidated Authorization contains a specific condition requiring a minimum 12-inch clearance between the deepest draft of the vessel (with the motor in the down position) and the top of submerged resources for all vessels that will use the docking facility. Compliance with this condition will help ensure that the value of functions provided to fish and wildlife and to listed species and their habitat of any such submerged resources is not adversely impacted by vessels using the Dock. The Consolidated Authorization also contains a specific condition requiring handrails to be installed on the Dock to prevent mooring access to portions of the Dock other than the wetslips. This will help protect submerged resources in shallower areas in the vicinity of the Dock. Fish populations in the immediate area of the Dock site may temporarily be affected during construction of the Dock; however, those impacts are not anticipated to be permanent. Additionally, as previously discussed, the Dock pilings must be wrapped with an impervious material to prevent leaching of pollutants into the water, and once installed, the pilings may provide habitat for fish and a substrate for benthic organisms. Provided that the conditions set forth in the draft Consolidated Authorization, as well as the recommendation regarding the smaller grassed area, are included in the final version of the Consolidated Authorization, it is determined that the construction and operation of the Dock will not adversely impact the value of functions provided to fish, wildlife, or to listed species or their habitat.16/ Impact on Navigation Petitioners assert that the Dock will constitute a hazard to navigation in the northeast portion of Crooked Lake. Specifically, they assert that because the Dock will extend out approximately 204 feet into the Lake, it necessarily will create a navigational hazard to boaters in the vicinity. As support, Petitioners presented evidence consisting of Steven Howard's testimony that an inner tube on which his nephew was riding, that was being pulled behind a motor boat, collided with the Gerards' 84-foot-long floating dock adjacent to Howard's riparian area. Petitioners argue that if an 84-foot-long dock creates a navigational hazard, a 204-foot-long dock would create an even greater navigational hazard. The undersigned does not find this argument persuasive. The portion of Crooked Lake on which the Dock is proposed to be located is approximately a mile and a half to two miles long and one-half to three-quarters of a mile wide. Although this portion of Crooked Lake experiences substantial boat traffic, the evidence shows that the Lake is sufficiently large in this area, even with the Dock in place, to allow safe navigation. To this point, it is noted that there are two other longer docks in the northeastern portion of Crooked Lake, extending 220 and 244 feet into the Lake from the shoreline. There was no evidence presented showing that either of these docks constitutes a navigational hazard.17/ Petitioners also assert that during periods of high water in this portion of Crooked Lake, the Dock will be underwater and thus will present a navigational hazard. In support, they presented photographs taken on October 30, 2017—— approximately six weeks after Hurricane Irma struck central Florida——showing ten docks, out of the 109 docks on Crooked Lake, that were partially or completely submerged.18/ When the photographs were taken, the approximate water elevation was 119.2 feet NGVD. All or a portion of the submerged docks had been constructed at or below the 119.2-foot NGVD elevation. The docks without roofs were mostly or completely invisible under the water. However, for the roofed docks, the roofs remained visible above the water even when their docking platforms were submerged. Here, although the walkway and lower platform of Howard's Dock is proposed to be constructed at an elevation of 121 feet NGVD, the roof will be constructed at an elevation of 129 feet NGVD. Thus, even during the relatively infrequent periods19/ during which the water level in Crooked Lake may exceed 121 feet NGVD, the platform roof will still be visible to vessels navigating in this portion of the Lake. Additionally, the Consolidated Authorization contains a specific condition requiring the waterward end of the Dock to be marked with a sufficient number of reflectors to be visible from the water at night by reflected light. This condition provides additional assurance that the Dock will not present a navigational hazard. For these reasons, it is determined that the Dock will not adversely affect navigation. Other ERP-Related Issues The evidence did not show that the Dock is proposed to be located in or proximate to a "work of the District," as defined in section 373.019(28). The only "work of the District" about which evidence was presented is the weir located south of Crooked Lake. This structure is many thousands of feet south of the Dock. There was no evidence presented showing that the Dock would have any impact on this weir. The Dock, as proposed, was designed by an experienced professional contractor who has designed and installed many docks on Crooked Lake, and, as such, is anticipated to function as proposed. The Dock must be built according to engineering diagrams to the Consolidated Authorization, and as-built drawings must be submitted when Dock construction is complete so that DEP can confirm that the Dock is constructed in accordance with the approved design. The evidence establishes that Howard, as the applicant, and Rickman, as the professional contractor in charge of construction, are financially, legally, and administratively capable of ensuring that the activity will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. No evidence to the contrary was presented. The Dock will be located in the waters of Crooked Lake and will be affixed to the submerged bottom. The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that historical or archaeological resources are anticipated to be impacted by the project. Additionally, the Consolidated Authorization contains a general condition requiring subsurface activity associated with construction of the Dock to immediately cease, and DHR to be contacted, if any prehistoric or historic artifacts, such as pottery or ceramics, stone tools or implements, dugout canoes, or other physical remains that could be associated with Native American cultures or early colonial or American settlements are encountered at any time within the project site area. Additional Recommended Conditions Based on the foregoing, the undersigned recommends that the following specific conditions be included in the Consolidated Authorization, Permit No. 53-0351424-001-EI: A minimum six-inch clearance shall be maintained between the top of all submerged resources and the deepest draft of the cradle of the boat lift while in use. For purposes of this condition, submerged resources consist of the bottom sediment and/or any submerged grasses or other aquatic organisms. Any emergent grasses in the permittee's riparian area shall be avoided during the construction and operation of the Dock. If it is not feasible to avoid these grasses, an environmental assessment of the grassed area shall be performed and submitted to the Department prior to commencing construction, so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated and the extent to which minimization and/or compensatory mitigation is appropriate can be determined. Clearly in the Public Interest Florida Administrative Code Rule 62-4.070, Standards for Issuing or Denying Permits, states in pertinent part: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules. In addition to the foregoing permitting requirements, because the Dock is proposed to be located in an OFW, Howard also must provide reasonable assurance that the Dock meets the "clearly in the public interest" standard. The "clearly in the public interest" standard does not require the applicant to demonstrate need for the project or a net public benefit from the project. Rather, this standard requires the applicant to provide greater assurances, under the circumstances specific to the project, that the project will comply with the applicable permitting requirements.20/ For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the applicable permitting requirements and the "clearly in the public interest" standard for issuance of the ERP. Impacts Assessment for Sovereignty Submerged Lands Lease Water-Dependency of the Proposed Dock A water-dependent activity is one which can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. See Fla. Admin. Code R. 18-21.003(71). Petitioners argue that the Dock will not constitute a water-dependent activity because the depth of water in the slips may, at times, be insufficient to allow operation of Howard's vessels while complying with the requirement that a minimum 12- inch clearance be maintained between the lowest draft of the vessel and submerged resources. The undersigned finds this argument unpersuasive. The Dock is being constructed specifically for the purpose of enabling Howard to use her vessels for boating——a recreational activity for which use of the water indisputably is an integral part. The Dock's primary purpose is to moor vessels that will be used for the water-dependent recreational activities of boating and fishing, and other water-dependent recreational uses of the Dock include fishing, swimming and sunbathing. Case law interpreting the Florida Administrative Code Chapter 18-21 makes clear that because docks are used for mooring vessels or conducting other in-water recreational uses, they are "water-dependent" activities for purposes of the rules.21/ Thus, even if water depths in the Dock's slips are at times insufficient for vessel mooring or launching,22/ this does not render the Dock not a "water-dependent activity." Resource Management Requirements The preempted area of the Lease is proposed to be used for a Dock that will be used for boating, fishing, and swimming. These traditional in-water recreational uses are consistent with the management purposes of sovereignty submerged lands as described in rule 18-21.004(2)(a). With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock will not result in adverse impacts to sovereignty submerged lands and associated resources. With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock is designed to minimize or eliminate impacts to fish and wildlife habitat and submerged resources. With the inclusion of the currently proposed conditions in the draft Consolidated Authorization, as well as the recommended conditions set forth in paragraphs 73.A. and 73.B., it is determined that the Dock, as designed and constructed, will minimize or eliminate cutting, removal, or destruction of wetland vegetation. Additionally, as discussed above, the proposed Consolidated Approval requires the avoidance of adverse impacts to historic and cultural resources. Riparian Rights Consistent with rule 18-21.004(3)(d), the Dock is proposed to be constructed in Howard's riparian area and will be set back more than 25 feet from the northerly and southerly riparian lines shown on the Survey. Rule 18-21.004(3)(a) prohibits activities authorized under chapter 18-21 from being implemented in a manner that would unreasonably infringe on traditional common law riparian rights, as defined in section 253.141, of upland owners adjacent to sovereignty submerged lands. Similarly, rule 18-21.004(3)(c) requires all structures and activities to be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent riparian owners. Collectively, these provisions prohibit an activity that will occur on sovereignty submerged lands from unreasonably infringing on or unreasonably restricting the riparian rights of upland riparian owners. Riparian rights are rights appurtenant to, and inseparable from, riparian land that borders on navigable waters. § 253.141, Fla. Stat.; Broward v. Mabry, 50 So. 830 (Fla. 1909). At common law, riparian rights include the rights of navigation, fishing, boating, and commerce. Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957). The right of navigation necessarily includes the right to construct and operate a dock to access navigable waters. Belvedere Dev. Corp. v. Dep't of Transp., 476 So. 2d 649 (Fla. 1985); Shore Vill. Prop. Owners' Ass'n v. Dep't of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002). Common law riparian rights also include the right to an obstructed view. Lee Cnty v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998). Many of these common law riparian rights have been statutorily codified in section 253.141. Statutory riparian rights include the "rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law." § 253.141(1), Fla. Stat. At issue in this case are the competing riparian rights of next-door neighbors——i.e., Howard's right to wharf out to navigable waters for purposes of boating and other water- dependent recreational activities, and the Gerards' right to an unobstructed view. The question is whether Howard's proposed construction and operation of a dock of sufficient length to enable her to use her boats would unreasonably infringe on or unreasonably restrict the Gerards' right to an unobstructed view of the Lake. By virtue of the riparian rights appurtenant to Howard's riparian property, she is entitled to wharf out to water deep enough to enable her to navigate. She owns two boats, one of which pulls a draft of 25 inches, and the other, a draft of 20 inches, which she uses to navigate the Lake. Thus, an essential aspect of Howard's riparian right of navigation is her ability to construct and operate a dock long enough to enable her to reach water depths sufficient to use these boats. However, as noted above, this right is not unfettered. Howard's exercise of her riparian navigation right cannot unreasonably infringe on Gerard's right to an unobstructed view. Florida case law holds that the right to an "unobstructed" view does not entail a view free of any infringement or restriction whatsoever by neighboring structures or activities. In Hayes, the court defined the right as "a direct, unobstructed view of the [c]hannel and as well a direct, unobstructed means of ingress and egress . . . to the [c]hannel." Id. at 801 (emphasis added). The court then prescribed the rule that "in any given case, the riparian rights of an upland owner must be preserved over an area 'as near as practicable' in the direction of the [c]hannel so as to distribute equitably the submerged lands between the upland and the [c]hannel." Id. (emphasis added). To the extent there is no channel in this portion of the Lake, Hayes dictates that riparian rights must be apportioned equitably, so that a riparian owner's right to an unobstructed view can extend only from the owner's property in the direction of the center of the Lake. Kling v. Dep't of Envtl. Reg., Case No. 77-1224 (Fla. DOAH Oct. 6, 1977; Fla. DER Nov. 18, 1977) at ¶¶ 11-12 (emphasis added). Here, no evidence was presented showing that the Dock——which will be located immediately south and east of the Gerards' riparian property and attendant riparian area——will present an obstruction to the Gerards' view of the Lake channel. Additionally, the evidence did not establish that Howard's Dock would obstruct the Gerards' view of the center of the northeast portion of Crooked Lake, which is located west and slightly south of their property.23/ Administrative precedent in Florida provides additional support for the determination that the Dock will not unreasonably infringe on the Gerards' right to an unobstructed view. In O'Donnell v. Atlantic Dry Dock Corporation, Case No. 04-2240 (Fla. DOAH May 23, 2005; Fla. DEP Sept. 6, 2005), riparian owners challenged the proposed approval of expansions of sovereignty submerged lands leases authorizing Atlantic Dry Dock, a neighboring commercial shipyard, to expand its shipyard facilities and install new docking facilities. The administrative law judge noted that although the expanded shipyard would further encroach on the riparian owners' already somewhat-restricted view from their property, it would not substantially and materially obstruct the Petitioners' view to the channel. He commented: "it [their view] may be further obstructed to the west in the direction of the Atlantic Marine yard, but not in the direction of the channel." To that point, he found that although "any lateral encroachment on the Petitioners' line-of-sight to the channel by the large eastern dry dock proposed will be an annoyance, . . . [it] will not rise to the level of a substantial and material interference or obstruction of the Petitioners' view to the channel." Id. at ¶ 119. He found that "there is no 'special riparian right' to a view of the sunset, just as there was no right to a particular object of view . . . by the riparian owners complaining in the Hayes case." Id. at ¶ 120. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998), also is instructive. In Castoro, neighboring riparian owners challenged the proposed issuance of an environmental approval and sovereignty submerged lands lease for a 227-foot-long dock having a terminal platform with boat lift. The owners contended that due to the dock's length, it would impermissibly obstruct their views of the water. The administrative law judge rejected that contention, distinguishing the circumstances from those in Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998), in which the construction of a bridge that blocked 80 percent of the riparian owners' view of the channel was held to constitute a "substantial and material" obstruction to the riparian right of view. The ALJ noted that although the dock would have "some impact on the neighbors' views" and their use of the waterbody, it did not unreasonably impact their riparian rights to an unobstructed view or to use of the waterbody. Id. at ¶¶ 73-74. In Trump Plaza of the Palm Beaches Condominium v. Palm Beach County, Case No. 08-4752 (Fla. DOAH Sept. 24, 2009; Fla. DEP Oct. 8, 2009), a condominium association challenged the proposed issuance of a sovereignty submerged lands use approval to fill in a dredged area and create mangrove islands in the Lake Worth Lagoon, alleging, among other things, that the creation of the mangrove islands would unreasonably infringe on their riparian right to an unobstructed view. In rejecting this position and recommending issuance of the submerged lands use approval, the ALJ noted that the area obstructed by the mangrove islands would be negligible compared to the remaining expanse of the view, and further noted that the owners' real concern was directed at the aesthetics of the project——specifically, they did not want to view mangrove islands. The ALJ stated: "[t]he evidence supports a finding that while the project will undoubtedly alter the view of the water from [the riparian owners' property], the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights." Id. at ¶ 86. Applying these case law principles, it is determined that the Dock will not unreasonably infringe on or unreasonably restrict the Gerards' riparian right to an unobstructed view. To that point, the cases make clear that the right to an "unobstructed" view is not an unfettered right to a view of the water completely free of any lateral encroachment, but, instead is the right of a view toward the channel or the center of a lake without unreasonable infringement or restriction. Here, although the Dock will laterally encroach on the Gerards' full panoramic view of the Lake——and, as such, may even constitute an annoyance, the evidence did not show that the Dock will obstruct or otherwise restrict their view to the channel or the center of the Lake. Moreover, to the extent the Gerards have expressed concern about the Dock interfering with their view of the south shore of the Lake, O'Donnell makes clear the desire to have a particular object of view——here, the south shore of the Lake——is not a legally protected riparian right. It is also found that the Dock will not unreasonably interfere with the Gerards' riparian rights of ingress, egress, boating, or navigation. As previously noted, the Dock will be located at least 25 feet inside the riparian lines established for Howard's upland property, and, it will not be constructed in a location or operated in a manner that will obstruct, interfere with, or restrict the Gerards' access to the Lake or to sufficient water depths to enable navigation.24/ The evidence also did not establish that the Dock will restrict or otherwise interfere with the Gerards' use of their riparian area for ingress and egress, boating, fishing, bathing, or other riparian uses. In sum, it is concluded that the Dock will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners. Accordingly, it is determined that the Dock will meet the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 63 through 67, it is determined that the Dock will not constitute a navigational hazard in violation of rule 18-21.004(7)(g). Not Contrary to the Public Interest Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. To meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro, at ¶ 69. For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the "not contrary to the public interest" standard required for issuance of the Lease. Demonstration of Entitlement to ERP Howard met her burden under section 120.569(2)(p) to present a prima facie case of entitlement to the ERP by entering into evidence the Application, the Notice of Intent, and supporting information regarding the proposed Dock. She also presented credible, competent, and substantial evidence beyond that required to meet her burden under section 120.569(2)(p) to demonstrate prima facie entitlement to the ERP. The burden then shifted to Petitioners to demonstrate, by a preponderance of the competent substantial evidence, that the Dock does not comply with section 373.414 and applicable ERP rules. For the reasons discussed above, it is determined that Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding. Accordingly, for the reasons addressed above, it is determined that Howard is entitled to issuance of the ERP for the Dock. Demonstration of Entitlement to Lease As previously discussed, Howard bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Dock meets all applicable statutory and rule requirements for issuance of the Lease for the Dock. For the reasons discussed above, it is determined that Howard met this burden, and, therefore, is entitled to issuance of the sovereignty submerged lands lease for the Dock. Petitioners' Standing Defenders' Standing As stipulated by the parties and noted above, Defenders is an incorporated non-profit entity created for the primary purpose of protecting and preserving Crooked Lake so that it may remain an OFW for all members of the public to enjoy. Defenders has been in existence since at least the mid- 1980s. Robert Luther, the president of Defenders, testified that the organization's purpose also entails providing education and promoting public awareness in order to preserve the natural beauty, water quality, ecological value, and quality of life around Crooked Lake. As stipulated by the parties and noted above, Defenders has more than 25 members. Luther testified that Defenders has approximately 100 family members, most of whom live on or around Crooked Lake. He noted that many of Defenders' members own boats, which they park at a local boat landing on the Lake. Based on this testimony, it is inferred that these members operate their boats on Crooked Lake. After receiving the public notice of the project, Defenders' board of directors voted to oppose issuance of the Consolidated Authorization for the Dock. Luther testified that the board's decision was based on the determination that "it was clearly within the public interest" to oppose the Dock. Gerards' Standing The Gerards reside at 1055 Scenic Highway, Babson Park, Florida. Their riparian property is immediately adjacent to, and northwest of, Howard's property. The Gerards own a floating dock that is located within their riparian area.25/ The dock consists of two 4-foot- wide by 30-foot-long ramps attached to a 24-foot-long by 8-foot- wide pontoon boat. Priscilla Gerard testified that she enjoys spending time sitting and reading books on the beach in front of her property, and that having that area to sit and read is a significant aspect of her enjoyment of her lakefront property. Ms. Gerard observed that extensive boating activities in the northeast portion of the Lake on weekends is disruptive, and interferes with her use of her beach for relaxing and reading. She particularly noted that boats operating very close to the shore cause waves to splash up on her beach, interfering with her ability to sit and read close to the shore. She did not contend that Howard's use of the Dock for boating would contribute to the disruptive nature of existing boat traffic in the vicinity. Ms. Gerard has viewed the plans for the proposed Dock and is very concerned that due to its size, her view of the south side of the Lake will be completely blocked. She acknowledged, and other competent, credible evidence showed, that there are other docks on the Lake in the vicinity of her riparian property. The evidence shows that existing docks having lengths of 145 feet and 170 feet are located in the vicinity of, and are visible from, the Gerards' property. She testified that an existing dock and tiki hut block her view of the Lake to the north. She acknowledged that although Howard's Dock, if constructed as proposed, may somewhat obstruct her view to the left (south) of her property, it would not block her view straight out into the Lake. Phillip Gerard testified that he has boated extensively on Crooked Lake in a variety of vessel types. He further testified that he has observed a range of boating practices on Crooked Lake, including seeing water skiers and persons being towed behind motorized vessels on inner tubes and other types of "towables." He testified that, based on his personal observations, persons being towed do not have independent control of the speed or direction of the "towable"; thus, depending on the direction in which the towing vessel turns, the towable may be slung to the left or the right. Gerard commented that such lack of control could result in a person riding on a towable colliding with a dock, and he noted that Howard's nephew, who was riding on an inner tube being towed by a boat, was involved in such a collection with his (Mr. Gerard's) own dock. Mr. Gerard did not testify that the Dock would present a navigational hazard to, or otherwise interfere with, the Gerards' riparian right of ingress and egress. Neither of the Gerards testified that the Dock would impact their ability to access navigable waters in the Lake. Mr. Gerard acknowledged that if Howard's Dock were constructed, boats that currently travel very close to the shoreline of his property would be forced to swing further out in the Lake, away from his riparian shoreline, in order to avoid the Dock.
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 approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft of Permit No. 53-0351424-001-EI, as modified to include the Additional Recommended Conditions set forth in paragraphs 73.A. and 73B. DONE AND ENTERED this 5th day of July, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2018.
