Findings Of Fact Petitioner Ronald T. Hopwood is president of Last Resort Fish Camp Association, Inc. (hereafter "Association"), the owner of Big Pine Island located in Lake County, Florida. Big Pine Island consists of approximately 26 acres of land above the mean high watermark and 166 acres of submerged and transitional zone lands. The Association's property is more accurately described by the Department's exhibit III, Map C. Petitioner Milan M. Knor submitted to the Department a dredge and fill permit application, File No. 35-20062-4E, to dredge 7,350 plus-or-minus cubic yards of fill material waterward of the lien of ordinary high water and adjacent to the Petitioner's uplands (Department's Exhibit 12). It is proposed that the fill material or spoil be deposited on the landward side of a perimeter canal which presently exists along the southwest one-third of the island. When the project is complete, the canal will encircle the entire island, the fill material resulting therefrom will be deposited on the island side of the perimeter canal below a 59.5-foot elevation (Department's Exhibit III, Map A). During the dredging, turbidity curtains would be utilized. As part of the project, Petitioners propose to install two (2) 42-inch diameter culverts at the east and west ends of a causeway which connects Big Pine Island to the mainland (Department's Exhibit III, Map B). The purposes of the proposed project are to improve the water quality of the adjacent canals and wetlands, provide fire protection, reduce algae blooms, and stabilize bottom sediments (Petitioners' Exhibit A, Department's Exhibit 1). The elevation of 59.5 feet above mean sea level was established by the St. John's River Water Management District as the ordinary high water elevation of Lake Griffin. The desirable levels of Lake Griffin vary between 58.07 and 59.38 feet. A dredge and fill permit was issued fro this project by the St. John's River Water Management District. In its final order granting the permit, the Governing Board of the District found, inter alia, that the water quality of the district would not be significantly diminished by the channelization of the marsh, that the new culverts would increase the rate of flow and the flushing of the marsh by providing increased northerly access for the water flow, that the excavation would enhance navigability and flow through the interior canal, and that the channelization would promote fire protection. The Board believed that the installation of the culvers ". . . will provide a positive benefit to the marshlands by correcting the prior damming effect of the causeway " (Petitioner's Exhibit D). The permit was issued by the Governing Board over the recommendation of its staff to deny the permit (Department's Exhibit 16). On July 26, 1979, Mr. James Morgan, a filed inspector with the Department, conducted an on-site field inspection of the proposed project. Mr. Morgan complied an appraisal report, Department's Exhibit 11, which evaluated the feasibility of extending the existing 1,200-foot canal by approximately 3,000 feet. Mr. Morgan found that a portion of the area to be excavated, approximately 600 feet, was previously cleared and vegetated by arrowhead (Sagittaria, Sp.), paragrass (Panicum purpurascens), bloodroot (Lacnanthes caroliniana) and sawgrass. 1/ Standing water was present in portions of the previously cleared area. The remaining 2,400 feet were in a natural state, dominated by willows (Tudwigia peruviana), wax myrtles (Myrica ceriferia), arrowhead and sawgrass. Surface waters of the Oklawaha River and Lake Griffin were present in part of this area; however, at the time of the field evaluation, Lake Griffin's surface waters were depressed by approximately six (6) inches below its established ordinary high water elevation. Raising the lake's elevation to its high water elevation, 59.5 feet, would result in the entire project site being inundated with surface waters. Dip net samples yielded organisms which constitute the lowest levels of an aquatic food chain including amphipods, dragonfly naiads, diptera larvae and mosquito fish. Mr. Morgan's report concluded that ". . . [d]ue to the severity of the anticipated impact of the proposed canal construction, no environmentally acceptable modification is available other than to permit the system to function naturally. . . ." This conclusion was based on the following negative aspects of the project. The collecting and storing of organic materials in the canal which would reduce the dissolved oxygen level during biodegradation to lethal levels for fish and other aquatic organisms; The physical alteration and elimination of a natural wetland community; The increase in turbidity during excavation; and The placement of spoil below the controlled elevation of Lake Griffin which would reduce the lake and river flood storage capacity as well as the area capable of supporting healthy aquatic plant and animal life. It was recommended that the proposed culverts be installed and that one canal- front lot be utilized as a common lot for all property owners, thereby providing open water access to all property owners. Lake Griffin is presently in a highly eutrophic stated caused by large amounts of algae growth and weeds in the water column. Agricultural farming, municipal sewage treatment plants, and citrus processing plants are among the sources of nutrients causing the high algae growth. The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level buildup in the system. By increasing the water flow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved. The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter similar to the human kidney by filtering deleterious substances from the surface water. Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklawaha chain of lakes by a series of control structures. This "backwater" effect, which is caused by movement in the Oklawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved. A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and the completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water lever maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of an existing berm. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two- culvert system proposed by the Petitioners would have a cosmetic effect and not significantly improve the natural water flow between the canals. If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself. The proposed filling of the island which is to occur below the 59.5- foot elevation will reduce the river's flood storage capacity and the area capable of supporting plan and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of low lying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose. Petitioners have not been denied the use of their property either by the Department's denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.
Recommendation Therefore, it is recommended that the Department issue a permit to Petitioners to complete construction of a perimeter canal surrounding Big Pine Island subject to the following conditions: That the applicants install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway. The number and size of the culverts or other structures will be determined by the Department. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below 59.5 feet in elevation. That the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process. DONE AND ORDERED this 25th day of August 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August 1980.
Findings Of Fact Joyce K. Anderson and Thomas Barnett have filed an application for issuance of a permit to dredge and fill a small area in the littoral, or "near shore," zone of Gillis Pond, a "sandhill lake" lying in what is known as the "sandhill region" of Central Florida, generally northeast of Gainesville. The dredging and filling as now proposed would be on and waterward of two lakefront lots jointly owed by the permit applicants. They seek by their application, authorization to dredge and fill at only one site on the waterward margin of the two lots with that modified project area reduced in size to a dimension of 12 feet by 25 feet. Fifteen feet of the project would be waterward of the shoreline. The Respondent, the Department of Environmental Regulation, is an agency of the State of Florida charged with the duty of enforcing, as pertinent hereto, the provisions of Chapter 403, Florida Statutes, and Chapter 17-3 and 4, Florida Administrative Code, enforcing the water quality standards contained therein as they relate to dredge and fill projects of this sort, with concomitant permitting jurisdiction over such projects. The permit applicants desire this dredge and fill permit in order to make a safe, comfortable swimming area for Mrs. Anderson's family and friends. Mrs. Anderson desires to remove the tree stumps, roots and vegetation existing in the littoral zone area of the above dimensions in order to make access directly from the shore more comfortable and pleasant, especially for small children who are unable to swim in the deep water off the waterward end of the existing dock. Mrs. Anderson already has a 56 foot dock extending from her property into the lake. The water is 7 feet deep at the waterward end of the dock and the littoral zone containing aquatic vegetation extends beyond the length of the dock in a waterward direction. The project area would extend waterward of the shoreline, a distance of 15 feet, and would parallel the shoreline approximately a distance of 12 feet. The littoral zone vegetation at the site, however, extends waterward from the shoreline 50 to 60 feet. The proposed area to be dredged is quite small in size in relation to the total linear shoreline of the subject lake of approximately 4,000 feet. The dredged material would be excavated to a depth of approximately 6 inches over that 12 by 15 foot area and replaced with clean sand fill. The dredged material removed from the site would be secured on an upland site such that nutrient pollutants from that dredged material could not be leached or carried back into the lake through storm water runoff. Approximately one-third of the shoreline of the lake is bordered by a marsh or wet prairie which is approximately as large in area as the lake itself. The dominant vegetative species in the project area and surrounding the lake, including the marsh, are submerged freshwater species listed in Rule 17- 4.02(17), Florida Administrative Code, including maidencane, sawgrass and a rare aquatic plant, websteria confervodies. Gillis Pond is a Class III water of the state, although its water quality parameters, or some of them, clearly exceed in quality, the minimum standards for Class III waters. Gillis Pond is what is termed an "ultra- oligotrophic lake, which means that its waters are characterized by a high level of transparency and very low nutrient content, that is to say that they are essentially pristine in nature. An oligotrophic lake such as this is very sensitive to any addition of nutrient pollutants. Even a small addition of nutrients to such water can cause an imbalance in the fauna and flora which have evolved to become dependent upon a low nutrient aquatic environment. Specifically, the rare aquatic plant named above is very sensitive to any enhanced nutrient levels and thus serves as a barometer of the water quality in this body of water. The addition of any nutrient pollutants to the lake, even in small amounts, might alter the chemical balance of the water in a derogatory manner so that the websteria confervodies might be eliminated. The elimination of this species from the littoral zone vegetation band surrounding the lake would likely result in other forms of vegetation supplanting it, altering the balance and makeup of the community of fauna and flora native to the lake and possibly hastening the progress of the lake toward eutrophication and degradation. The present water quality in the lake is such that dissolved oxygen and other criteria are better than the Class III water quality standards. The vegetation in the littoral zone of the lake and extending out as much as 50 to 60 feet waterward performs a significant function in uptaking and fixing nutrient pollutants that wash into the lake from storm water runoff from the surrounding uplands. Inasmuch as 30 to 40 feet of this belt of littoral zone vegetation would remain waterward of the dredged and filled area if the permit is granted, the nutrient uptake function of the vegetation in the littoral zone would not be significantly degraded. There are two locations where littoral zone vegetation has been removed in a similar fashion and water quality and flora and fauna communities characteristic of an oligotrophic lake are still present and healthy. Further, there is an extremely low nutrient level in the lake at the present time, and no significant amount of nutrient pollutants are leached or washed into the lake through septic tanks, storm water runoff or other sources. There is no question that the project as proposed would result in some slight, transitory degradation of water quality in the form of increased turbidity and reduced transparency. Turbidity will be caused during and shortly after the dredging and filling operation itself, caused by stirring up of bottom peat or sediments and by removal of a 12 by 15 foot area of aquatic vegetation in the littoral zone of the lake. Turbidity curtains in still waters such as involved here, can substantially reduce the spread of turbidity caused by the stirring up of bottom material and can substantially reduce the period of its suspension in the water by containing it at the dredged site. The vast majority of the littoral zone vegetation surrounding and waterward of the area to be dredged will remain such that the nutrient uptake function will be essentially undisturbed, thus any adverse impact on water quality will be insignificant. In terms of cumulative effect of allowing a multiplicity of such projects, not even a 10 percent loss of the littoral zone band of vegetation in the lake, which would be the maximum possible loss if all riparian land owners were allowed a similar size dredged and filled area on the front of their lots, would cause a violation of Department water quality standards. Parenthetically, it should be pointed out that such riparian owners cannot be prevented by any water quality criteria in Chapter 403 or Chapter 17, Florida Administrative Code, from having access to the lake in front of their lots. Such human traffic will have the gradual affect of destroying a significant amount of the littoral zone vegetation on and waterward of those lots (which is a cause and result the Department is powerless to regulate). By confining the destruction of littoral zone vegetation to such a small area as that involved in the application at bar and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining critical littoral zone vegetation will be significantly enhanced.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the application of Joyce K. Anderson and Thomas Barnett for a dredge and fill permit as described in the modified and amended application be GRANTED; provided, however, that turbidity curtains are used during all dredging and filling activity and for a reasonable time thereafter until turbidity caused by the project has settled out of the water column. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983. COPIES FURNISHED: Tim Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Joyce K. Anderson and Thomas Barnett 6216-B, Southwest 11th Place Gainesville, Florida 32601 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The proposed project is a six-lane, combination low and high level bridge crossing Mill Cove and the St. John's River in Duval County, Florida. The project entails construction of approximately 6,000 feet of low level trestle-type bridge structure and approach spans beginning on the south side of Mill Cove and extending across the Cove to the northern edge of Quarantine Island, an artificial spoil island; 3,000 feet of high level bridge crossing the main channel of the St. John's River; and northern approach spans touching down on Dame Point on the northern shore of the St. John's River. In order to construct the proposed project, JTA is required to obtain a water quality permit and certification from DER. JTA filed its application with DER, accompanied by supporting data, including several studies performed by professional consultants. After review of the application, DHR filed notice of its intent to issue the requested water quality permit and certification, and Petitioners filed a timely request for a hearing pursuant to Section 120.57(1) Florida Statutes, to oppose the issuance of the permit and certification. Petitioners are various groups and individuals concerned about water quality in the St. John's River and the Jacksonville area. Petitioners' standing to seek relief in this proceeding was stipulated by all parties. Construction of the project will result in: filling of approximately .07 acres of wetlands to construct the south abutment on the shore of Mill Cove; dredging of approximately 185,000 cubic yards of material from Mill Cove to create a 4,400 foot long, 190 foot wide barge access channel, with a five foot navigation control depth parallel to the low level portion of the project; temporary filling of approximately .3 acres of wetlands above mean high water on the south shore of Quarantine Island to provide construction access to the island, which area is to be restored upon completion of construction; construction of a diked upland spoil containment site approximately 31 acres in size above mean high water on Quarantine Island to retain all dredge spoil associated with the project; construction of a temporary dock at the northern end of Quarantine Island for access and staging purposes, which is to be removed on project completion; and filling of approximately 16,000 cubic feet of material waterward of mean high water for rip-rap protection around main piers in the St. John's River. Dredged materials will be removed by hydraulic dredges. The St. John's River and its tributaries have been designated Class III waters by DER in the project area. The project involves dredging below mean high water and filling above mean high water, and is a dredge-and-fill project for purposes of Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, and is regulated by DER. The project is an element in a proposed eastern bypass around the City of Jacksonville. It is expected that, as a result of the project, existing area industry will receive more efficient transportation service, commuter trip miles from southeastern Jacksonville to northern Jacksonville will be reduced, transportation routes to education facilities will be improved, and tourist traffic will be routed around downtown Jacksonville, reducing miles traveled to nearby beach resorts and thereby relieving downtown congestion. The benefits to costs ratio of the project appears positive and beneficial to Duval County and Jacksonville, in that for every dollar spent to construct the project, $2.80 could be returned to the community in the form of increased economic activity and more efficient transportation. Testimony clearly established that the state waters in the project area are currently severely degraded and are not likely to meet Class III water quality standards. Violations of Class III standards for dissolved oxygen and some heavy metals, such as mercury, presently exist as background conditions in the St. John's River and Mill Cove. Further, a water quality analysis performed by DER in the project area indicates high background concentrations of heavy metals and PCB's in both the water column and sediments in the project area. When the pro posed project is analyzed within the context of these existing background water quality conditions, it appears highly unlikely that any impact from the project will further degrade existing conditions. The project as currently designed includes plans for total containment of spoil material resulting from dredging activity on the upland portions of Quarantine Island. There will be no direct discharge of dredge $materials from this containment area into the receiving waters of the state. JTA performed a water and sediment analysis of the project area, the purpose of which was to determine the existence and concentrations of specific pollutants that could adversely impact Class III waters if reintroduced into the aquatic system. JTA employed a consultant whose analytical program was designed in consultation with DER and complied with all standard testing procedures required by Rule 17-3.03, Florida Administrative Code. This analysis identified three primary-project activities where control of toxic and deleterious materials was critical: turbidity control; upland spoil containment; and direct discharge of spoil water to state waters. Sediments in the Mill Cove area are extremely fine and may be resuspended in the water column in quantities that could violate state water quality standards if dredging is done improperly. It appears from the evidence that any turbidity problem can be avoided by employing silt curtains and hydraulic dredging during channel excavation. Silt curtains should adequately retain turbidity below levels which would violate state water quality standards, in view of the fact that the JTA study hypothesized a "worst-case" condition for projecting turbidity and pollutant concentration by assuming no upland spoil containment, silt curtains or reasonable mixing zone. Although use of silt curtains and hydraulic dredging cannot absolutely guarantee zero-discharge of suspended sediments from the dredging area, the proposed system of turbidity control is adequate to provide reasonable assurance of non-violation of state water quality standards. Due to the existing toxic background conditions in Mill Cove, DER imposed a permit condition requiring spoil from dredging activities to be completely contained in an upland landfill-type site, with no overflow that could allow effluent to return to waters of the state. The upland dike system proposed in the project application is designed to retain all spoil material and water without direct discharge into state waters. Testimony established that the proposed dike system is designed to hold far more spoil material than the proposed project will generate. Although the dike system is to be constructed from dredged material previously deposited on Quarantine Island, it appears from the testimony that these materials were dredged from the main channel of the St. John's River and are cleaner and sandier in character than sediments in the Mill Cove area. The dike system, in conjunction with natural percolation and evaporation, is adequately designed to retain dredge spoil on the upland portion of Quarantine Island, and can reasonably be expected not to release toxic and deleterious substances into receiving waters of the state. It is also significant that a condition of the requested permit requires project water quality monitoring to afford continuing assurance that the project will not violate standards contained in Chapter 17-3, Florida Administrative Code. These standards and the conditions required to achieve them have been included in DER's letter of intent to issue the permit for this project. It is specifically concluded from the evidence that project dredging will not release toxic and deleterious substances into Class III waters in violation of state water quality standards, and that project dredging in Mill Cove incorporates reasonable safeguards for spoil disposal and turbidity control so as to assure non-violation of state water quality standards. JTA plans to use a direct discharge method to dispose of storm water from the bridge. Storm water will fall through 4-inch screened holes called "scuppers" placed at regular intervals along the bridge surface directly into either Mill Cove or the St. John's River. JTA was required to provide in its application reasonable assurance that storm water runoff from the Project would not exceed applicable state standards for turbidity, BOD, dissolved solids, zinc, polychlorinated biphenols, lead1 iron, oils or grease, mercury, cadmium and coliform. To this end, JTA submitted a study entitled Effect of Rainfall Runoff from Proposed Dame Point Bridge on Water Quality of St. John's River. This study analyzed the chemical composition of storm water runoff from an existing bridge, comparable in both size and design, to the proposed project, which crosses the St. John's River south of the City of Jacksonville. This study adequately established that storm water runoff into the St. John's River across the length of the proposed bridge will not degrade the water quality of the St. John's River below current water quality standards. All but three of the parameters tested in the study were within standards contained in Chapter 17-3, Florida Administrative Code. The remaining three pollutants were either not automobile-related, or would not violate applicable water quality standards after a reasonable opportunity" for mixing with receiving waters. One of these pollutants, mercury, is not automobile-related, and the concentration of mercury discovered in bridge runoff test samples was essentially the same as that measured in rainfall samples. The sampling for mercury was performed using the ultrasensitive "atomic absorption" method, which is capable of measuring tenths of a part per billion of mercury. Another method, the "Dithizone" method, is a technique recognized as effective by DER, and would have, if utilized, yielded a result within the "none detectable" standard contained in Rule 17-3.05(2) , Florida Administrative Code. As to the remaining two pollutants, coliform and lead, testimony established that a dilution rate of 400 to 1, after mixing with receiving waters, would not result in violation of applicable Class III water standards. Testimony also clearly established that water circulation in the project area would result in the requisite dilution ratio of approximately 400 to 1. The storm water runoff study was performed on a bridge similar in all important characteristics to the proposed project, and therefore validates the scientific methodology utilized to determine the expected impact of runoff from the proposed project on water quality in the St. John's River. The applicant has provided in its permit application the best practicable treatment available to protect state waters in the design of both the low and high level portions of the proposed bridge. Extensive research and analysis of design alternatives for both the low and high level portions of the bridge were undertaken by JTA and its consultants prior to selecting the proposed design for the bridge. JTA prepared and submitted to DER, as part of the application process, a document entitled Summary of Construction Techniques in Mill Cove, Dame Point Expressway. This document analyzed and summarized the available construction and design alternatives for the low level trestle portions of the project. The analysis included consideration of overhead construction, construction from a temporary wooden structure parallel to the project, and construction from barges using a shallow channel parallel to the project. The design chosen will cost more than one million dollars less than the next alternative, and will cut construction time by two years over the next alternative design. Given the demonstrated need for the proposed project, the already degraded water quality in the project area, the safeguards for water quality contained-in the project design, and the savings to be realized in both cost and time of construction, the design presently contained in the application is the best practicable. Both Petitioners and JTA have submitted proposed findings of fact. Petitioners' Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's Proposed Findings of Fact numbered 1 through 7 have also been substantially adopted. To the extent that proposed findings of fact submitted by either Petitioners or JTA are not adopted in the Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue in this case is whether Excavated is entitled to an MSSW permit pursuant to Chapter 373, F.S., and Chapter 40C-4, F.A.C., for the construction of a borrow pit and, if so, what if any conditions should be imposed on the permit.
Findings Of Fact The Parties Petitioner CROP is a Florida corporation. "CROP" is an acronym for the Committee to Resist Oppressive Politicians. Petitioners Geneva Defense Association and Save Our St. Johns are subcommittees of CROP. Petitioner Crabtree, who resides in Geneva, Florida, is chair of CROP and a member of the subcommittees. Petitioner Crabtree obtains his residential potable water from the Mullet Lake Water Association, which has employed Petitioner Crabtree as its water plant manager. The principal well of the Mullet Lake Water Association, which draws from the Geneva bubble described below, is about 500 feet southeast of the subject site. Respondents Veigle and Excavated Products (Applicant) have requested Respondent St. Johns River Water Management District (District) to issue a permit for the management and storage of surface waters (MSSW). Applicant proposes to excavate a borrow pit in northeast Seminole County about three miles south of the St. Johns River, three miles west of Lake Harney, 1.5 miles east of Lake Jessup, and four miles north of the Econlockhatchee River. The irregularly shaped parcel, which is about one mile northwest of Geneva, is bounded on the north and east by State Road 46 and the south by Cochran Road. Hydrogeology of Region and Site The parcel overlies a 22-square mile freshwater lens in the Upper Floridan aquifer1/ known as the Geneva bubble. The groundwater in the bubble contains chloride concentrations of less than 250 mg/l. The bubble, which is about 350 feet thick in the center of its recharge area, is surrounded by brackish relict seawater. The bubble's 15-square mile recharge area is marked by land elevations of at least 25 feet.2/ The subject site is situated just inside the northwest boundary of the recharge area. The Geneva bubble is dependent upon freshwater recharge from local rainfall, which flushes out ancient seawater from the Floridan aquifer. Greater recharge takes place at locally higher land elevations, which rest on more permeable sediments. A USGS study, "Hydrogeology in the Area of a Freshwater Lens in the Floridan Aquifer System, Northeast Seminole County, Florida," prepared by G. G. Phelps and K. P. Rohrer and published in 1987, describes the recharge process as follows: The Geneva freshwater lens is a result of local recharge that percolates downward from the surficial aquifer to the Floridan. Recharge occurs when water levels in the surficial aquifer are higher than the water levels in the Floridan (a downward gradient exists). The area enclosed by the 25-foot altitude contour . . . is where most of the recharge occurs. . . . In some areas of lower topography3/ the gradient is upward (discharge areas) whereas in other areas the gradient is downward, but the head difference between the surficial aquifer and Floridan aquifer system is slight and little recharge takes place. At [one] site, the vertical hydraulic gradient changes direction seasonally--upward during the dry season and downward during the wet season. * * * The water level or head difference between the two aquifers is not the only factor controlling recharge. Other important factors are hydraulic conductivity and thickness of the intermediate confining unit. The confining unit must be thin and permeable enough to allow appreciable recharge to the upper part of the Floridan. CROP Exhibit 44, page 20. The relationship of current topography to the Geneva bubble is underscored by the proximity of the bubble to the Geneva Hill. Separated by the St. Johns River from the Deland Ridge, Crescent City Ridge, and Palatka Hill to the north, the Geneva Hill and these three other geological formations run a distance of about 70 miles parallel to, and about 25 miles inland of, the current Atlantic shoreline. This ridgeline, which forms part of the Wicomico Shoreline, was probably formed about 100,000 years ago when sea level was about 100 feet higher than present. Local land surfaces less than 25 feet elevation were the most recently covered by seawater, which may explain the brackish water contained in the Floridan aquifer under these lower elevations. The hydrogeology of the region, including the site, consists of the surficial aquifer, which overlies the intermediate confining unit consisting of Miocene sediments. Beneath these confining sediments is the Floridan aquifer consisting of permeable limestone and dolomite beds. The water in the Floridan aquifer travels northeastward from prime recharge areas to discharge in areas along the St. Johns River. In areas of high land elevations (over 25 feet) centered around Geneva, the confining sediments are sandy and thus leaky. By contrast, the confining unit in lower areas may be relatively impermeable due to clay layers as thick as 20 feet. The high land elevations, where the Geneva bubble is recharged, feature a downward hydraulic gradient from the surficial aquifer to the Floridan aquifer and the absence of thick clay layers. Shallow lakes near the subject site replenish the Geneva bubble by collecting water that slowly percolates through the surficial aquifer to the Floridan aquifer. The rate of recharge may be affected by the fact that the water elevations of these lakes may vary dramatically from year to year and from wet- season to dry-season. On the other hand, the potentiometric surface water elevation of the Floridan aquifer in this area remains fairly constant over the long-term, although it varies about 5 feet seasonally. The preservation of the boundary between the freshwater lens and surrounding brackish water requires that the bubble receive sufficient freshwater recharge so that it can maintain an annual groundwater outflow of at least 10 inches annually. A year of little rainfall, such as 1981, may reduce the freshwater outflow to half the necessary amount. If the deficiency exists for a "number of years," the equilibrium between the freshwater and brackish water would be disturbed. CROP Exhibit 44, page 68. Groundwater withdrawals from the Geneva bubble total less than 5% of the bubble's average annual recharge. Although the rate of well pumping is increasing, withdrawals will not significantly exceed this percentage for several years. However, the freshwater outflow and recharge are finely balanced prior to consideration of the impact of withdrawals. Calculating 30-year averages, the USGS study discloses that the recharge available to the Geneva bubble is 10.8 inches annually and the groundwater outflow, exclusive of withdrawals, is 10.4 inches annually. For the years studied, 1981-82, the withdrawals totalled only 0.37 inches, so there was no significant change in groundwater storage. CROP exhibit 44, page 67. The critical balance between recharge and groundwater outflow for the Geneva bubble will become even finer with projected increases in withdrawals. The USGS study reports that, in 1981, total pumpage--all reasonably assumed to be from the Floridan aquifer--was 0.44 million gallons per day (MGD). This translates to 0.37 inches when distributed over the 22- square mile freshwater lens. The pumpage volumes were: Mullet Lake Water Association--0.02 MGD; Lake Harney Water Association4/--0.03 MGD; individual wells--0.18 MGD; and agriculture--0.21 MGD. CROP Exhibit 44, pages 65-66. The 1989 average daily flow for Mullet Lake and Lake Harney were 0.032 and 0.040 MGD, respectively, for a total of 0.072 MGD. The two utilities are predicted to pump, by 1996, 0.138 and 0.065 MGD, respectively, for a total of 0.203 MGD. CROP Exhibit 10, page 314. Additionally, Seminole Woods is pumping groundwater from the Geneva bubble a little over one mile southeast of the subject site. CROP Exhibit 10, page 63. The withdrawals attributable to Seminole Woods are 0.028 MGD in 1989 and 0.131 MGD in 1996. CROP Exhibit 10, page 314. Even assuming a constant pumpage rate for individual and agricultural wells, the total pumpage of the Geneva bubble in 1989 was 0.49 MGD, which is an increase of 11% in eight years. This translates to an annual withdrawal of 0.41 inches when distributed over the 22-square mile freshwater lens. By 1996, the total pumpage of the bubble, again assuming no change for individual and agricultural wells, will be about 0.724 MGD, which is an increase of about 45% in seven years. This translates to an annual withdrawal of 0.6 inches when distributed over the entire freshwater lens. Application for MSSW Permit By Individual Permit Application filed May 14, 1991, James K. Froehlich applied for an MSSW permit. The application describes the project as a borrow pit that, upon completion, would become part of a single family residential development. Following a request for further information, Mr. Froehlich's engineers, the Civil Design Group, provided additional information by response dated September 13, 1991. An accompanying letter dated September 12, 1991, discloses that the owner and applicant is now Excavated Products, which purchased the bulk of the property. The September 12 letter states that the project, now known as Froehlich Lake Estates, would produce no offsite discharge. The letter assures that the project would result in no dewatering of wetlands. The September 12 letter indicates that readings had been taken from four piezometers from April to September, 1991. The letter reports: As noted, the water table is fairly flat and at approximate elevation of +20.5 feet N.G.V.D. . . . Using this most recent site- specific data, we therefore estimate that the normal seasonal high water level of the proposed lake will be at approximate elevation of +20.5 feet N.G.V.D. This estimate supersedes the earlier estimate of +24.0 feet N.G.V.D. The estimated seasonal fluctuation of the water level is expected to be approximately 3 feet. There- fore, we will expect the water table to fluctuate from elevation +17.5 to +20.5 N.G.V.D. during the course of the year. Applicant Exhibit 2, page 3. The September 12 letter identifies only two culverts on the property. Running under State Road 46, both pipes are completely plugged with silty sediment. The letter indicates that none of the wetlands in the project area has any offsite connections, such as through wetlands vegetation or ditches. The September 12 letter represents that the project would have "no connection to Waters of the State." Applicant Exhibit 2, page 11. The only wetland upon which the project would encroach is the 0.24-acre Wetland E, as identified on the map described below. No mitigation is proposed because of the limited size of Wetland E and the fact that no other encroachments would take place. In response to a request for reasonable assurance that the construction of the borrow pit would not affect adversely the hydrologic functions of the wetlands in the area, the September 12 letter states: As mentioned previously, the estimated seasonal high water table elevation is +20.5 feet N.G.V.D. In wetlands adjacent to the lake at higher elevations, a clay core will be installed to hydrologically isolate the wetlands from the lower elevation lake. The details of the clay core will be submitted when additional borings are done along the wetland perimeter. Applicant Exhibit 2, page 9. The September 12 letter acknowledges that the Applicant does not intend to create a littoral zone or marsh creation. Onsite muck would be stockpiled and used to create the 6:1 slopes from the edge of the pit to about 3.5 feet below anticipated pool elevation. Applicant does not propose dumping offsite muck onsite. The Narrative portion of the September 13 response materials indicates that the normal high water was reduced from 24.0 to 20.5 feet based on new information, and the bottom of the excavation was raised from -20 to -17 feet to provide at least 15 feet of protection for the Floridan aquifer. Additionally, the Narrative notes that three groundwater monitoring wells would be constructed (one upgradient and two downgradient) to test monthly for level of groundwater, chloride, turbidity, Ph, and hydrocarbons. The hydrogeological information contained in the September 12 letter and September 13 response is largely derived from Jammal & Associates (Jammal). Jammal has studied the site from early 1989 through 1991. The September 13 response materials include a Jammal report dated April 17, 1991, concerning the location of the top of the limestone layer. Based on analysis of five test borings, the Jammal April 17 report determines that the top of the limestone layer and, thus, the Floridan aquifer is nearly flat on the site and ranges in depth from about -32 to -33.5 feet. The Jammal April 17 report concludes that the then- proposed excavation depth of -20 feet would leave a soils thickness of 12 to 16.5 feet between the bottom of the borrow pit and top of the limestone layer marking the top of the Floridan aquifer. Following another request for further information, Applicant provided additional information by response dated October 25, 1991, from the Civil Design Group, Inc. The October 25 response materials contain a new application from James P. Veigle, President. The new description of the project is limited to the construction of a borrow pit to yield fill for the construction of an expressway. The October 25 response materials include several diagrams and maps. All but one of these diagrams and maps are incorporated into the permit approved by the St. Johns River Water Management District (District).5/ The October 25 response materials include a post- development drainage map of the site. The map reports that the project site totals 111.3 acres, including a 36.5-acre proposed lake within a 55.2-acre borrow pit area, as measured from the dry top of the slope. The post-development drainage map depicts the site's wetlands, which total 22.6 acres. The wetlands and proposed pit are depicted in Appendix B.6/ Wetland A, which consists of 9.8 acres, is slightly west and north of the center of the site. Wetland B, which is on the north boundary of the project boundary just north of Wetland A, consists of only 0.67 acres. Wetland C, which is at the northernmost tip of the subject parcel, consists of 1.1 acres and abuts State Road 46. About 500-600 feet south and east of Wetland C is Wetland D, which also abuts State Road 46. Wetland D consists of 1.6 acres. Wetland E, which is just south of Wetland D, is slightly east of the center of the project. Wetland E, which would be excavated as part of the borrow pit, consists of 0.24 acre. Wetland F is in the southcentral part of the site and consists of 6.75 acres. Wetland G is south of Wetland F. Consisting of 2.64 acres, Wetland G was probably bisected at the property line by the construction of Cochran Road. The post-development drainage map contains a table describing each of the wetlands, which are all classified as isolated herbaceous wetlands. The plant species for Wetland A are willows, primrose willows, dogfennel, and blackberry with one acre of sawgrass, pickerelweed, and associated panicum grasses. Wetland B hosts sawgrass and panicum. Wetlands C and D are characterized by panicum and sedges with bay trees around the perimeter. Wetland E has panicum and primrose willow. Wetland F features maidencane, pickerelweed, sedges, juncus, bullrush, and dogfennel. Wetland G has panicum, sedges, and dogfennel with young cypress trees. The post-development drainage map indicates that significant areas of relatively land surface high elevations of about 50 feet exist immediately west of the north and west boundary of the site and immediately east of the south and east boundary of the site. The site itself features varying land surface elevations with greater slopes in the southeast and northwest corners. The post-development drainage map shows the direction of overland drainage. As at present, the site would continue to receive runoff at its northwest corner. The post-development drainage map represents that the proposed method of excavation is to dry mine until the water table is encountered and then to proceed deeper with drag lines or hydraulic dredging to the final proposed depth. Regardless of the method, "[n]o water will be withdrawn from the excavation pit or circulated. Water control berms will not be necessary as the depth of the water table will be below the rim of the excavation area at all times." Applicant Exhibit 3, Sheet 2 of 3, General Note 13. The post-development drainage map describes the groundwater monitoring wells, which would monitor the surficial aquifer. One well would be upgradient and two wells would be downgradient of the excavation area. Samples would be taken monthly and reported quarterly to the District and Seminole County for water level, chloride, turbidity, Ph, and hydrocarbons. Monitoring would begin 45 days prior to excavation below the water table. Applicant Exhibit 3, Sheet 2 of 3, General Note 19. The proposed monitoring well locations are shown on the post- development drainage map. MW-1 is at the 29-foot contour just off the right-of- way for Cochran Road at the southern tip of the property. MW-1 is within 100 feet west of Wetland G. MW-2 is between the 25- and 26-foot contours less than 50 feet south of Wetland C. MW-3 is between the 42- and 43- foot contours at the southeast corner of the site. MW-3 is about 500 feet east of Wetland F and 500 feet northeast of Wetland G.7/ The post-development drainage map shows that the slope of the pit would be 6:1 (e.g., one foot deep per six feet parallel to land surface) down to 3.5 feet below anticipated water level. At 17 feet elevation, the slope would steepen to 2:1. The map indicates that normal water level for the pit would be 20.5 feet. The October 25 response materials also include a cross-section diagram of the borrow pit. The cross-section shows the bottom of the pit at -17 feet, which means that the water depth of the pit would be 37.5 feet deep if the stabilized pool elevation is 20.5 feet. The cross-section depicts silt fences placed on the boundary of each wetland around which the pit would be excavated: Wetlands A, D, F, and G (except where no excavation would take place at the edge of Wetland G nearest Cochran Road and the edge of Wetland D nearest State Road 46). Except for the side of Wetland D facing the pit, the pit would be excavated to within 10 feet of each of the above-described wetlands boundaries facing the excavation. The October 25 response materials include an additional discussion of groundwater management prepared by Jammal. The report, which is dated October 14, 1991, restates the projection that the wet season pool elevation of the excavated pit would stabilize at about 20.5 feet elevation. The Jammal October 14 report observes that the pool might stabilize at a higher elevation during construction. The uncertainty as to the stabilized wet season water elevation of the filled pit is due to a number of factors set forth in the Jammal October 14 report. These include: The estimated seasonal high groundwater table elevation around the perimeter of the pond in the post-development condition. Potential for lateral groundwater inflow to and outflow from the pond from the surrounding aquifer. This potential is related to the upgradient/downgradient ambient seasonal high water table elevation, upgradient watershed, aquifer transmissivity, and hydraulic gradient upstream and downstream of the pond. * * * Increase in vertical groundwater inflow into or out of the pond as a result of reducing the thickness of clastic sediments between the water table aquifer and the subjacent aquifer (i.e., the intermediate aquifer of Floridan aquifer). Volume of stormwater entering the pond and rate of dissipation of stormwater via natural infiltration into the water table aquifer or filtration through underdrains or similar structures. Net of direct precipitation on the pool surface minus lake evaporation for the normal rainy season. Applicant Exhibit 3, Jammal report, page 1. If, during excavation, the pool were to stabilize at a higher elevation, the Jammal October 14 report recommends a minimum berm elevation of 25 feet to ensure that the borrow pit would not discharge into the wetlands. Ongoing monitoring would determine if a higher berm were needed.8/ The Jammal October 14 report does not address the possibility of a lower stabilized pool elevation for the filled pit. The Jammal October 14 report notes that water withdrawn during the startup dewatering would be contained onsite in a settling basin to allow infiltration back into the surficial aquifer. According to the report, the sandy soils in the area are very permeable, and rainfall would quickly infiltrate the ground surface before reaching the excavation. The discussion of the groundwater drawdown impacts in the Jammal October 14 report is dependent upon the projections of pool elevations of the pit during dredging and upon completion. The discussion of groundwater drawdown uses a 15- foot potentiometric surface of the Upper Floridan aquifer at the site. The Jammal October 14 report warns that reducing the water level in the pit below this elevation for a sustained period "may result in upward flow from the sensitive freshwater bubble in the Floridan aquifer." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report deals with the potential upwelling problem by noting that the normal seasonal high water elevation in the pit is projected to be about 20.5 feet. Based on the excavation process proposed, the Jammal October 14 report does not anticipate water levels falling below 17 feet. In any event, the Jammal October 14 report assures that the water level in the pit will be monitored "to ensure that no upward flow from the Floridan Aquifer is induced." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report states that the excavation will reduce the thickness of the sediments separating the water table aquifer from the Floridan aquifer by 37 feet, from 52 feet to 15 feet.9/ The 15-foot thickness of clastic sediments overlaying the limestones of the Floridan aquifer is "adequate for water quality treatment." Applicant Exhibit 3, Jammal report, page 5. But the 70% reduction in original thickness results in an increased downward gradient from the water table to the Floridan aquifer. The ensuing increase in recharge to the Floridan aquifer is "not detrimental," according to the Jammal October 14 report. However, the stabilized pool elevation may be reduced if the "magnitude of the upgradient shallow aquifer groundwater feed [into the filled pit] is not adequate to compensate for the increased vertical recharge within the excavation." The report continues: A normal pool elevation which stabilizes significantly below the pre-development groundwater table can affect the hydroperiods of the adjacent wetlands. Wetlands adjacent to the proposed excavation are at elevations ranging from +21 to +24 feet N.G.V.D. If we find adverse drawdown in the wetlands during Id. our monitoring program . . ., a clay core (or other acceptable method) will be used to hydrologically isolate the wetland from the lower elevation lake. The Jammal October 14 report adds that the flow of contaminants into the pit is "mitigated" by the fact that "stormwater flow directly into the excavation will be minimized." Id. The report restates that the water table is "fairly flat" and at an approximate elevation of 20.5 feet. The report thus concludes that the normal seasonal high pool elevation for the proposed borrow pit is estimated to be 20.5 feet. Because the estimated seasonal fluctuation in the water table is about 40 inches, the Jammal October 14 report projects that the water elevation of the filled pit will vary during the year from 17- 20.5 feet. The Jammal October 14 report describes a groundwater monitoring plan that involves devices in addition to the three shallow aquifer monitoring wells described above. A staff gauge in 0.1-foot increments would be placed in the pit and read twice daily during excavation. The records would be submitted at unstated intervals to the District and Seminole County. A Jammal representative would select locations for the installation of an undetermined number of shallow aquifer piezometers along the edges of the wetlands adjacent to the excavation. The Jammal representative would also select the location for the installation into the Floridan aquifer of an additional piezometer "[s]ince there is no site specific data on the altitude of the potentiometric surface of the Floridan aquifer and since the aquifer is subject to seasonal variation." Applicant Exhibit 3, Jammal report, page 6. During the first month of operation, the readings (to the nearest 0.1 foot) would be taken daily. Again, records would be submitted at unstated intervals to the District and Seminole County. The third element of the groundwater monitoring plan calls for on-site inspections by a Jammal "geotechnical engineer." At weekly intervals during the first month of operation and at unstated intervals thereafter, the engineer: will examine the quality of effluent reentering the pit, the operation of the settling pond, the integrity of the installed piezometers, and look for any signs of adverse groundwater impacts. The . . . geotechnical engineer will make written recommendations to mitigate any noted possible adverse groundwater impacts. The ... geotechnical engineer also reserves the right to make this plan more stringent if circumstances demand. Applicant Exhibit 13, Jammal October 14 report, page 7. Technical Staff Reports and Permit Conditions By letter to Mr. Crabtree dated November 20, 1991, the District advised that it would be considering the borrow pit application at a meeting on December 10, 1991. The letter contains a Technical Staff Report dated November 27, 1991, and a Notice of Rights. The November 27 Technical Staff Report (TSR-1) describes the proposed project, identifies Mr. Veigle as the applicant, mentions Lake Cochran as a receiving waterbody, and otherwise sufficiently describes the project so that Mr. Crabtree and other interested persons would know that the Board would be considering the borrow pit project. Describing the wetlands, TSR-1 notes: At the time of the field inspection, water depths within the wetlands varied from several inches to several feet. The water levels within the wetlands are dependent on the fluctuations of the Floridan Aquifer. The vegetation and condition of such wetlands change seasonally and annually, due to differences in the amount of rainfall and the degree of recharge. Applicant Exhibit 13, page 5. Concerning the impact of the proposed excavation on the wetlands, TSR- 1 states: No impact is proposed on the remainder of the 22.4 acres of herbaceous wetlands [other than the excavation of 0.24-acre Wetland E] within the project boundary. District Staff does not anticipate that drawdown will occur within the adjacent wetlands, due to the absence of a confining layer within the project area, and the method of construction proposed (no dewatering offsite). The 0.2 acre wetland [Wetland E] is below the threshold for review, as set forth in section 10.7.4, [Applicant's Handbook]. Applicant Exhibit 13, page 5. TSR-1 approves the use of a dry detention pond and swales to control stormwater runoff. Although located in the 100-year floodplain, the proposed project, according to TSR-1, would not adversely affect the storage capacity of the floodplain because no fill would be added to the floodplain. TSR-1 does not address in any detail the impact of the proposed project on the Geneva bubble. TSR-1 states that Applicant originally proposed to leave only 10 feet of confining sediments over the Floridan aquifer, but, due to concerns expressed by the public and comments from District staff, Applicant agreed to leave a minimum separation of 15 feet. TSR-1 contains 11 conditions. Condition 1 is that the permit expires December 10, 1996. Condition 3 is: "The permittee must obtain a General or Individual permit from the District prior to beginning construction of subsequent phases or any other work not specifically authorized by this permit." Applicant Exhibit 13, page 6. Incorporating as a condition the maps and diagrams discussed above, TSR-1 concludes that the proposed project is consistent with the requirements of Chapters 40C-4 and 40C-42. The accompanying Notice of Rights informs the recipient: A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition with the [District] within 14 days of receipt of notice of the District's intent to grant or deny a permit application . . .. A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition in the office of the District Clerk within 14 days of receipt of notice of final District action on a permit application, as provided in [Rule] 40C-1.511 . . ., if the Governing Board took action which substantially differs from the notice of intent to grant or deny the permit application, or if a substantially interested party did not receive notice of the District's intent to grant or deny the permit application. Applicant Exhibit 13, page 8. The certificate of service shows that the District mailed Mr. Crabtree a Notice of Rights on December 2, 1991. Mr. Crabtree received the Notice of Rights and TSR-1 on December 6, 1991--four days before the scheduled December 10 District meeting. On December 10, 1991, the District mailed to Mr. Crabtree another letter, Technical Staff Report (TSR-2), and notice of rights, which Mr. Crabtree received December 12, 1991. The December 10 cover letter informs Petitioner Crabtree that the enclosed TSR-2 "constitutes a notice of the District's intent to grant or deny the application. Please refer to the enclosed notice of rights to identify any rights that you may have regarding the proposed agency action." Applicant Exhibit 13, page 10. TSR-2 is identical to TSR-1 except for the addition of three new conditions pertaining to the impact of the excavation and operation of the borrow pit on groundwater. These conditions are: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991.10/ The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. No excavation can occur below elevation +0 ft NGVD until the permittee submits a water budget analysis, based on at least two years of data collection from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands. Applicant Exhibit 13, page 15. At the District Board meeting on December 10, 1991, the Board agreed to issue the MSSW permit, but added more conditions. The record is unclear as to what conditions were added and when they were added. It is clear, though, that the Board at the December 10 meeting expanded upon Condition 14 in TSR-2 by dividing the excavation project into two phases and, as noted below, required further review prior to excavation of the land following the first phase. On December 23, 1991, Petitioners filed the petition with the District challenging its intent to issue the MSSW permit. A Technical Staff Report dated April 20, 1992 (two days before the final hearing commenced) (TSR-3) incorporates the conditions of the MSSW permit approved by the Board on December 10, 1991. Restating the introductory language and Conditions 1- 11 contained in the prior TSR's, TSR-3 states the following conditions:11/ During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 14. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 134. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a water budget analysis, based on at least two years of data collection supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 145. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. 16. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of a revised construction plan, including contractor notes on mining operation, to comply with this permit. The permittee must obtain District written approval of the revised plan prior to starting any construction. Applicant Exhibit 4, pages 4-5. Area A, which is depicted in the diagram attached as Appendix B, covers a little more than half of the original area proposed for excavation. Area A includes the easterly side of the proposed pit and continues to abut State Road 46 and Wetland D. However, Area A does not approach as closely Wetlands A and F and imposes a setback of at least 100 feet from Wetlands A and F. This setback would not apply once excavation began following the completion of the deeper pit in Area A and shallower pit in the remainder of the original pit except for the 100-foot setback from Wetlands A and F. A Technical Staff Report dated April 29, 1992 (TSR-4) (the last day of the hearing), was prepared to indicate the language of the conditions that District staff determined would be necessary after considering the evidence presented at the hearing. Although referred to as TSR-4, it would appear that the TSR form was adopted for ease of reference and District staff was not issuing TSR-4 as a formal TSR. TSR-4 makes the following changes to TSR-3: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The maximum interval for data collection is monthly weekly. An additional shallow aquifer piezometer and staff gauge must be installed at a "reference site" to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer monitoring location. Monthly Weekly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year or longer after Area "A" is completed until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14 complete the water budget analyses as required by conditions 15, 16 and 17. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. Prior to starting construction (borrow operation), the permittee must install a staff gauge and piezometer, referenced to NGVD datum by a registered land surveyor, in wetlands "A", "B", "C", "D", "F" and "G". The permittee must monitor the water level at each wetland monitoring station and at the "reference site" located outside the influence of the borrow pit (as required under Permit Condition 12b.) on a weekly interval. This monitoring [must occur for a period prior to starting construction approved by the District as sufficient to establish a baseline comparison between the reference site and each monitored wetland. Monitoring must]12/ continue until construction is completed. The permittee must submit this monitoring data for each month to the District's Orlando office by the end of each calendar month. The permittee must provide one surveyed transect each in wetlands A, G and F. The transects will be located as shown on Exhibit 1. The ground elevations and surface water elevations referenced to N.G.V.D. must be submitted as a part of the certified survey, prior to starting construction. The survey must be conducted and certified by a surveyor registered in the State of Florida. 135. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. The limits of Area "A" must be at least 100' from the boundaries of wetlands A and F as such wetland boundaries are shown on the Post Development Drainage Map prepared by the Civil Design Group dated July 1991 and received by the District on October 25, 1991. bc. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 146. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". cd. Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. de. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD, until sufficient data exists to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the borrow pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 146. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a District- approved water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD until [sic] sufficient data existing to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 ft radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 157. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the water level in the pit during a normal rainfall year will not be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. If at any time during construction (borrow operations), the measured water level in any of the wetlands, as adjusted for any difference observed with the "reference site" during pre-construction monitoring, is 0.5 ft. below corresponding water level in the "reference site", the permittee must immediately cease the borrow operation until the relative difference in water level between each monitoring site and the reference site is no more than 0.5 ft. The limit of borrow operation must be at least 200 feet from any septic tank drain field. Prior to construction, the permittee must submit to the District a map delineating the location of all septic tanks and septic tank drain fields within 500 feet of the property boundary. The permittee must maintain a continuous berm at elevation 27.0 ft NGVD between wetland "D" and the borrow pit during construction and operation of the project. A minimum berm width of four (4) feet must be maintained. 1621. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of the following: a revised construction plan, including contractor notes on mining operation, to comply with this permit; and, a detailed plan for the water budget analysis, including all methodologies and data to be used. The permittee must obtain District written approval of the revised plan prior to starting any construction. Impact of Proposed Borrow Pit and Adequacy of Permit Conditions Contamination of Floridan Aquifer Petitioners allege that excavation of the pit would facilitate the introduction of various pollutants into the Floridan aquifer. The potential sources of pollutants are a nearby sprayfield, possible septic tank drainfields, and general stormwater runoff. Regarding the sprayfield and possible septic tank drainfields, the issues involve surface water runoff and groundwater movement. Petitioners assert that the stormwater runoff problems would be exacerbated by the location of the subject site in the 100-year floodplain. Two of these issues require little consideration. Nothing in the record suggests that effluent from any septic tanks in the area would flow onto the subject site or, if so, into the pit, regardless whether the flow were on the surface or in the ground. In any event, Condition 19 adequately addresses the septic tank issue, to the extent that one exists. The principle source of polluted stormwater runoff onto the subject site is State Road 46, which drains into Wetlands C and D. Wetland D would abut the pit, but Condition 20 requires the construction of a berm at elevation 27 feet between the wetland and the pit to protect the latter from runoff. There is some evidence of agricultural activity in the area, but the evidence is insufficient to determine the volume and composition of the agricultural runoff or the direction of its flow. The subject site is located in the 100-year floodplain. However, Applicant does not propose the introduction of any fill, so the floodplain functions in terms of storage and conveyance should not be substantially affected. The evidence concerning agricultural activities and septic tanks is insufficient to determine that floodwaters would necessarily carry livestock wastes, fertilizers, insecticides, herbicides, and septic tank effluent into the borrow pit. As noted below, sprayfield operations will cease during storm events, Thus, the design of the borrow pit, including the berms and Condition 20, adequately address the issues of the floodplain and runoff from the 100-year storm event. The sprayfield raises the only serious pollution issue. A reclaimed- water sprayfield owned and operated by the City of Sanford will be located on a large parcel abutting the northwest boundary of the subject parcel. Consisting of nearly 900 acres of hay fields and citrus groves, the sprayfield will receive 2.84 million gallons per day of tertiary-treated domestic wastewater with, according to the DER permit, "high level disinfection for reclaimed water delivered to the reuse system." Drainage from the southeast corner of the sprayfield is in the direction of the subject site. The flow in the shallow aquifer below the southeast corner of the sprayfield is also in the direction of the subject site. The citrus groves will be located on the portion of the sprayfield nearest the subject parcel. The sprayfield was permitted on April 15, 1991, and is still under construction. The conditions of the sprayfield permit are stringent in terms of requiring back-up equipment and operating personnel. Permit conditions demand a reduction in total suspended solids to not more than 5 mg/l and the maintenance of 1 mg/l total chlorine residual after a minimum contact period of 15 minutes. By these two parameters, the permit indirectly undertakes the complex process of viral monitoring; no direct monitoring of viral agents will be attempted. The micro-jet irrigation system applies the reclaimed water in no more than a two-foot radius beneath each citrus tree so as to minimize the possibility of runoff. The rate of application is low--0.8 to 1 inch per week. The soils in the area are highly permeable, especially at the higher elevations where, otherwise, reclaimed water runoff would be a greater risk. The land application system will not be operated during storm events. Some of the reclaimed water will be lost to evaporation. The majority of the reclaimed water will be transpired by the trees while the water is still in the root zone above the water table. The remainder of the reclaimed water will percolate into the shallow aquifer. The primary direction of travel for this reclaimed water is vertical through the confining layer and into the Floridan aquifer, not lateral within the shallow aquifer. As the reclaimed water migrates through the confining layer between the shallow and Floridan aquifers, additional contaminants will be filtered from the reclaimed water or simply fail to survive during the length of time required for the water to reach the Floridan aquifer while percolating through the undisturbed, relatively thick confining sediments. The excavation of the borrow pit would create a downgradient that will attract the reclaimed water that moves laterally. Any portion of the reclaimed water that proceeds directly into the Upper Floridan aquifer beneath the pit without passing through the pit would traveled through a longer section of the confining layer (given its diagonal path) than the reclaimed water percolating into the Floridan aquifer directly below the sprayfield. Nothing in the record establishes that the reclaimed water percolating straight down beneath the sprayfield threatens the quality of the water in the Floridan aquifer. A portion of the reclaimed water will enter the shallow aquifer and then be discharged into the borrow pit, rather than pass from the shallow aquifer through the confining beds and into the Upper Floridan aquifer. The reclaimed water reaching the Upper Floridan aquifer from the borrow pit will not travel through as much confining sediments as will the reclaimed water passing straight into the Upper Floridan beneath the sprayfield. The reclaimed water will encounter relatively little resistance while traveling laterally through the shallow aquifer. Due to the 70% reduction in confining sediments, the reclaimed water entering the Floridan aquifer from the pit will also encounter less resistance than will the reclaimed water traveling straight down from the sprayfield. However, the reclaimed water is heavily treated, released in controlled quantities (adjusted for rainfall), applied in a manner designed to maximize elimination by evapotranspiration, and carefully monitored (notwithstanding the indirect monitoring for viral agents). Applicant has provided reasonable assurance that surface runoff and groundwater movement from possible septic tank drainfields, surface runoff from the sprayfield, and general surface runoff of stormwater--notwithstanding the location of the pit in the 100-year floodplain--will not adversely affect the Floridan aquifer. Applicant has provided reasonable assurance that the location of the borrow pit in the 100-year floodplain will not adversely affect the drainage functions of the floodplain. The question of sprayfield contaminants entering the pit from the surface aquifer and then entering the Floridan aquifer is considered at the end of the next section. Wetlands and Hydraulic Conductivity The remaining issues involve the wetlands and, as Petitioners allege it, the hydraulic conductivity of the overburden left after excavation. The latter issue raises questions of recharge or discharge of the shallow and Upper Floridan aquifers because recharge and discharge rates are a function of the hydraulic conductivity of confining beds, thickness of confining beds, and head difference between the surficial and Floridan aquifers. The wetland and hydraulic conductivity issues are intertwined due largely to the question of what would be the stabilized water table elevation, and thus pool elevation of the filled pit, following excavation. The primary threat to the wetlands is due to dewatering, which requires consideration of the impact of the proposed excavation upon the water table. However, mitigation conditions focusing directly upon the impact to wetlands of a lowered water table do not necessarily address the question of recharge implicit in the hydraulic conductivity issue. Wetlands A key factor concerning the wetland issue is the condition of each wetland, which in turn affects the functional value of the wetland. In this case, the primary function is that of providing habitat. This function can be impaired or eliminated by any disturbance of the timing or quantities of water delivered to or taken from the wetland. In fact, the wetlands are not all in the same condition and none of them is in superior condition. Wetlands B, C, D, and E (which is to be excavated) are of little value. In particular, Wetlands C and D, which receive polluted runoff from State Road 46, have suffered from the invasion of many undesirable plant species. Wetland B tends to remain dry even when the other on-site wetlands are inundated. When other wetlands have as much as 30 inches of water in them, Wetland B has only a thin veneer of water. Wetlands B and C are quite small. Wetland E shares most of these negative attributes and is also the smallest. Wetlands A and G are of the highest relative value. Wetland F, which is a high prairie and, thus, different from the others, maintains a fair functional value, although not as high as the functional values of Wetlands A and G. Wetlands A, G, and F are the three largest wetlands, with Wetlands A and F constituting about three-quarters of the wetlands acreage on the site. Wetland A, which is 9.7 acres, has suffered an invasion of woody vegetation extending through its northern one- third to one-half. Partly due to its significant water levels, Wetland A has potential as nesting habitat for the sandhill crane. Wetland A had at least 24 inches of water at its fringe and more toward the center during the dry months this year. The more inundated portion of Wetland A is the part of the wetland closest to the edge of the pit. Wetland G, which is 2.64 acres, also has potential as nesting habitat for the sandhill crane, again partly due to its significant water levels. In the absence of unusually high water elevations, Wetland G is no longer connected with the wetland south of Cochran Road or, thus, with Lake Cochran, which is located south of the wetland across Cochran Road. Wetland G contains an area of standing water for extended periods with water depths exceeding 36 inches prevailing in the center of the wetland. Wetland F, which is 6.75 acres, also enjoys significant water levels and contains a deep hole in the middle of the wetland where water can usually be found throughout the year. Even during the dry months, as much as two acres of Wetland F remain inundated. During the rainy season, Wetland F may contain as much as 30 inches of water across much of its surface. Both sides of Wetland F would be within 10 feet of the edge of the pit, and, according to the cross-section diagram, Wetland F would be separated from the pit by only a silt fence (no berm). This is because Wetland F, as a high prairie, is at elevation 25 feet. Both sides of Wetland A would be about 30-40 feet from the edge of the pit. Wetland A would be separated from the pit by a silt fence and a berm. The side of Wetland G opposite Cochran Road would be about 20 feet from the edge of the pit. Due to the relatively high elevation of this end of Wetland G, only a small berm and a silt fence separate this side of Wetland G from the pit. Wetland D would be in a valley between State Road 46, which crowns at nearly 30 feet, and the edge of the pit, which, originally proposed at 25.5 feet, is now proposed to reach 27 feet under Condition 20. The side of Wetland D nearer the pit is about 50 feet distant from the top of the pit. This side of Wetland D is at 24 feet. The functions presently performed by the on-site wetlands would not be adversely impacted, transitory or long term, by a maximum transitory drawdown (during construction) of no more than 0.5 feet, as permitted by Condition 18, or the destruction of Wetland E. Hydraulic Conductivity As noted above, the dewatering question, which involves the wetlands issue, also involves the issue of the hydraulic conductivity of the post- excavation overburden. However, the reasonable assurance provided by Condition 18 with respect to the wetlands does not necessarily extend to the matters raised by the issue of hydraulic conductivity. The issue of hydraulic conductivity raises the question of the impact of the proposed project on the Upper Floridan aquifer, especially with respect to the exchange of groundwater between, on the one hand, the pit, into which the surficial aquifer will discharge, and, on the other hand, the Upper Floridan aquifer or, at this location, the Geneva bubble. The various projections of water elevations for the wetlands and the transient and stabilized pool elevations for the borrow pit are arrayed against a background of conflicting evidence offered by expert hydrogeologists called by the three parties. There are serious questions concerning the models, assumptions, and data inputs used by the experts to project water elevations in the pit, adjacent water table, and wetlands. Reaching conflicting conclusions on some matters and no conclusions at all as to other matters, the expert witnesses in the case apply various well-recognized laws of hydrogeology to an incomplete data set of hydrogeological conditions prevailing at the subject site. In many cases, assumptions based on regional conditions replace missing, site-specific data. There is an clear lack of reasonable assurance concerning certain key aspects of the hydraulic conductivity issue. The USGS Modflow model employed by the experts for the District and Petitioners (to yield conflicting results due to different values for leakants inside the pit) is itself rejected by the Applicant's expert, who is an employee of Jammal. Applicant's expert, who has considerable experience with the model, indicates that the USGS Modflow model is unsuitable in this case because, among other things, it assumes a relatively flat water table. The assumption of a flat water table is incorrect and the suitability of the USGS Modflow model for this pit is doubtful. At the subject site, the water table tends to follow the grade of the ground surface, and the subject site contains a sloping terrain. Unfortunately, the source of the misinformation concerning the gradient of the water table was the Jammal October 14 report, which inaccurately describes the water table as "fairly flat."13/ The faulty assumption concerning the gradient of the water table may understate the water table impact in the downgradient direction and overstate the water table impact in the upgradient direction. The USGS Modflow is a powerful model. The degree of error contained in faulty data inputs or assumptions may be multiplied in final results. As conceded by the District in its proposed recommended order, "neither [expert's] groundwater flow model was calibrated using test data from the site." District's Proposed Recommended Order, Paragraph 52. Significantly, the District's expert admits that he would have liked to have a value for recharge to the Floridan aquifer. Applicant's expert testified that useful tests would include, with respect to each wetland, a pump test for leakage, a slug test, and the installation of a piezometers and auger borings. At least certain of these data would be obtained under TSR-4, but not until Area A and the shallow remainder of the pit have been excavated and the required monitoring begins. District's Proposed Recommended Order, Paragraph 53. The inadequacy of the data, especially in view of the power of the modelling tool, undermines the reliability of the modelling results, as does the incorrect assumption concerning the water table gradient. Questionable assumptions different at the subject site--displace site-specific data so as to reduce materially the reliability of the ensuing analysis.14/ The reliability of the hydrogeological projections in this case is undermined somewhat by the disagreement between the experts for the Petitioners and District, who used the USGS Modflow model, and Applicant's expert, who rejected the model. The reliability of the hydrological projections is further undermined by a fundamental disagreement between the District's experts as to the impact of the proposed project on the water table. The District expert who spent considerable time and effort in analyzing the application is a Hydrologist III, who has been employed by the District for five years. He testified that the pit would not substantially lower the water table. The subject application was initially reviewed for about one and one- half hours by the Director of the District's Department of Ground Water Programs and Technical Support. Employed by the District for 17 years and in charge of 11 hydrogeologists or engineers, the Division Director disagreed with the Hydrogeologist III. The Director instead concluded that the excavation would necessarily result in lower water elevations than Applicant and Jammal had projected. The Division Director based his conclusion on a largely intuitive analysis of such factors as the elevation of the water table, depth of the borrow pit, and potentiometric surface of the Floridan aquifer. In fact, Applicant's expert also employed an intuitive approach in part in determining that the proposed project would not dewater the on-site wetlands. Although in this case more reliable than the modelling work, the intuitive approach is necessarily preliminary in nature. Moreover, Applicant's expert made assumptions that cast into doubt some of his conclusions. One problem is the attempt by Applicant's expert to estimate the water table elevation for 98 points around the proposed borrow pit. This would measure the depth from the surface of the ground to the seasonal high water table. Applicant's expert identified four sources of data for this work. One of these was the Soil Conservation Soils map, which, due to the large scale involved, is a poor substitute for soil classifications based upon soils samples taken from the site itself. Another source used by Applicant's expert was site-specific topographical information including the wetlands elevations. This information included or culminated in an estimate that the water table was one foot over the floor of the wetlands. For this information, Applicant's expert relied on information supplied by the biological experts employed by Petitioners and Applicant. However, elevation data of this type supplied by biologists were not sufficiently reliable for the purposes used. A second problem in the intuitive approach of Applicant's expert involves his assumptions concerning the friction of the excavated overburden versus the remaining overburden. Applicant's expert took 16 feet as the value for the potentiometric surface of the Upper Floridan aquifer. He then took 26.3 feet (rounded off to 26 feet) as the top of the water table, which itself may be suspect due to its derivation in part from the data described in the immediately preceding paragraph. Tentatively assuming that the water elevation of the stabilized pit would be 26 feet, Applicant's expert then calculated a head difference of 10 feet between the stabilized pool elevation and the Upper Floridan aquifer. By calculating the effect of the removed overburden on head difference, Applicant's expert projected the final pool elevation, as adjusted for the removed overburden. The process requires that the original head difference be multiplied by the percentage representing the friction or resistance of the remaining overburden when compared to the friction or resistance of the original overburden. The new head difference is then subtracted from the stabilized pool elevation to yield a truer stabilized pool elevation. The process is clearer when illustrated. Petitioners' expert estimated that the removal of 70% of the overburden removed 70% of the friction or resistance offered by the confining layer to migrating groundwater. This assumes that the friction or resistance of the confining sediments is unchanged with depth. If the original head difference were 10 feet (26 feet assumed unadjusted stabilized pool elevation minus 16 feet potentiometric surface of Floridan aquifer), then the friction or resistance remaining in the unexcavated overburden less than the original head difference of 10 feet. Subtracting the assumed unadjusted pool elevation of 26 feet by the head difference of seven feet means that the true stabilized pool elevation would be 19 feet. Applicant's expert altered the above-described calculations in a manner not justified by the record. He opined that the friction or resistance of the confining soils nearest the limestone top of the Upper Floridan aquifer was greater than the friction or resistance of the confining sediments closer to the surficial aquifer. Estimating that the remaining 15 feet of overburden had 45% of the friction or resistance of the original 52 feet of overburden, Applicant's expert determined a head difference of 4.5 feet, which is 5.5 feet less than original head difference of 10 feet. Thus, the true stabilized pool elevation would be 20.5 feet (26 feet less 5.5 feet), according to Applicant's expert. Again, the absence of site-specific data undermines the validity of conclusions based on logical analysis. The regional experience of Applicant's expert supports his adjustment to friction, but this experience is unrelated to the site in question. Other sources in the record support the regional existence of such a phenomenon. But the available site- specific data do not suggest that regional characteristics apply to the subject site, and, on balance, the record compels a conclusion that Petitioner's expert was correct in assuming a proportional relationship.15/ There are site-related hydrogeological questions for which, notwithstanding the existence of powerful models, scientific laws, and capable experts, sufficient data do not exist to provide reasonable assurances. As noted above, data do not exist concerning the present recharge rate of the Floridan aquifer at the site. Data concerning the potentiometric surface of the Floridan aquifer at the site are variable, reflecting perhaps seasonal changes or the necessary inexactness of measurements. Applicant's expert used 16 feet at the hearing, which he indicated was from the Ardaman report used in connection with the sprayfield application. Ardaman reports a potentiometric surface of 16.2 feet, although the report warns that the number may vary somewhat. Applicant Exhibit 11, Tab 2, page 5. As the February 13, 1990, Jammal report notes, the pressure head of the Floridan aquifer--at the proposed site One of the predicted effects of the sprayfield operation is to increase the recharge of the Floridan aquifer due to the introduction of more water into the surficial aquifer with the effect of raising the water table. This is the conclusion of the Law Environmental report dated January 10, 1989 (Applicant Exhibit 11, Tab 1, page 23) and the Ardaman report dated November 14, 1988. The Ardaman report states: An increase in deep recharge to the Floridan aquifer at [the sprayfield] site results from the rise of the groundwater level caused by increased recharge to the surficial aquifer. The magnitude of deep recharge increase is a function of the increased head in the surficial aquifer and the permeability of the confining layer. Applicant Exhibit 11, Tab 2, page 13. Both of these reports were prepared by an engineering firm handling the sprayfield project. The same engineering firm also became involved in the subject application when it sent Jammal a letter dated February 21, 1990, asking three questions. The February 21 letter to Jammal asks: What potential aspects of intermixing of surface waters into the aquifer might be involved due to the reduction of thickness of the aquaclude resulting from the lake construction? As you know, the aquaclude could be thinned appreciably by the lake construction and thus the hydraulic path length, and, therefore, head loss between the two minimized and some potential of pollution of the aquifer by surface waters may occur. Are there upwelling concerns due to the reduction of the aquaclude thickness? Is it likely that the potentiometric surface of the aquifer at elevation 13 and the proposed pond bottom at elevation -20 might cause breaching of the thinner layer of aquaclude postconstruction and thus intermixing of the two zones. What might the long-term effects on the shallow ground water table both on and off site be? Reduction of the aquaclude thickness may cause the aquaclude at that particular location to leak more readily, thus, the lake level of 24 proposed on our plans may not be maintainable and a lower lake level might result. This in turn may create a hydraulic gradient which would affect the shallow ground water table both onsite, in terms of viability of wetlands, and offsite in terms of both viability of offsite wetlands as well as potential drying up of shallow wells on onsite properties. ... Applicant Exhibit 9, Tab 6, In response to the first question, the Jammal letter, which is dated March 1, 1990, notes that the only source of contaminants would be stormwater runoff. The Jammal letter reports that the District had previously determined that a three- foot sand bottom was sufficient in the Ocala area for filtration prior to water entering underlying limestone formations. The answer concludes that "due to the sensitive nature of water supply in the vicinity of the site [and the ensuing scrutiny to be given the proposed separation of 7-10 feet], . . . it is our opinion that any increase in separation distance between lake bottom and the underlying aquifer will be better." Applicant Exhibit 9, Tab 6. With respect to the second question concerning "upward vertical leakage," the Jammal letter discusses the vertical leakage during lake excavation and dewatering. The response notes that dewatering is now limited to 0 feet,16/ after which wet excavation must take place through draglining or hydraulic dredging. Later, the Jammal letter asserts: "The intermixing of waters between the aquifers is not considered to be a problem since natural seepage of groundwater from the surficial aquifer to the Floridan aquifer will not be altered except during dewatering and excavation." Id. The Jammal response to the third question mentions stabilized pool elevations of the filled pit, as discussed above: The potential for long term lowering of water level in the excavated lake is a concern at this site due to a reduction in the hydraulic barrier between the shallow aquifer and the underlying Floridan aquifer. The current hydraulic head difference of approximately 12 feet between the two (2) aquifers is the result of head losses between the surficial aquifer to the underlying Floridan aquifer due to groundwater seepage. The primary head loss is anticipated to occur in the sands and clayey sands of the shallow aquifer. Theoretically, removing approximately two- thirds of these sands may decrease the hydraulic head difference by as much as two- thirds. Consequently, the hydraulic head between the two aquifers may create a stabilized lake level 4 to 5 feet above the potentiometric surface elevation (+17 to +18 feet NGVD). In reality, the theoretical proportioning presented herein may not be accurate. In order to estimate this potential head difference, a piezometer can be installed with a screen interval extending from the bottom of the clayey sands to the bottom of the lake excavation. The piezometer will need to be grouted in order to isolate this clean zone and measure the new potential head elevation at that depth. In this manner, it will be possible to evaluate the potential stabilized lake level more accurately. If the lake level stabilizes at elevations of +17 to +18 feet NGVD, it will create a cone of depression around the lake. Specific modelling was not conducted at this time to determine the exact extent and shape of the cone of depression. However, based on our preliminary evaluation, we estimate that the cone of depression may extend laterally 400 to 500 feet around the perimeter of the lake. Therefore, if existing wells are installed into the shallow aquifer and are located within this cone of depression, the water level in the wells may be expected to decline 1 to 4 feet depending on the location of the well. Wells located outside the 500 foot area surrounding the lake should not experience a drawdown effect from the long term drawdown of the lake. Applicant Exhibit 9, Tab 6. The three responses involve the issue of the hydraulic conductivity of the overburden remaining after excavation. The first answer, which concerns filtration, acknowledges that more separation means more filtration. Although more separation was later added to the proposal, the letter offers no guidance as to the practical limits of this principle. The second response is unsatisfactory and unsupported by the record. It defies logic to assert that the removal of 70% of the overburden does not "alter" the "natural seepage of groundwater from the surficial aquifer to the Floridan aquifer," even without regard to transient alterations taking place during excavation itself. The District's witness primarily responsible for the subject application alluded to this deficiency when he testified that he would like information concerning the recharge rate to the Floridan aquifer. A sufficient disturbance to the present hydraulic relationship could produce a spring-fed borrow pit, as the Floridan aquifer could seep into the pit if enough confining soils are removed and head difference between the aquifers (or the Floridan aquifer and free water of the pit) is lost.17/ The third response addresses an issue that has been considered at length above. The response rather casually acknowledges the possibility of a stabilized pool elevation for the filled pit of 17 to 18 feet and fails even to attempt to quantify the extent to which confining soils may offer more resistance closer to the limestone formation of the Floridan aquifer. The response identifies a means by which to estimate the potential head difference and readily concedes the possibility of a 1-4 foot reduction in the water table elevation extending a distance of 400-500 feet from the filled pit. Although these estimates and projections might have been refined by the time the response materials were submitted in the fall of 1991--about 18 months later--Jammal continued to project even then a stabilized pool elevation of only 20.5 feet, as contrasted with the testimony at hearing of Applicant's expert, who is an employee of Jammal, that the stabilized pool elevation would be higher. As discussed in the Conclusions of Law, it is possible to divide the proposed project into two phases. The first phase (Phase I) is the excavation of a little more than half the original proposed pit to an elevation of 0 feet, which would mean the removal of about 20 feet of overburden, rather than 37 feet as originally proposed. The remainder of the original pit, except for a wetland setback of 100 feet, would be excavated during Phase I, but only to an elevation of 21 feet, which would mean the removal of no overburden.18/ The second phase (Phase II) is the excavation of an additional 17 feet from Area A, 38 feet from the already- excavated area outside Area A (including 37 feet of confining sediments), and 52 feet of confining sediments from the area outside Area A within the Phase I 100-foot wetland setback. Based on TSR-4 with the six-inch drawdown provision, Applicant has provided reasonable assurance in all respects that excavation of Phase I will not adversely affect the Upper Floridan aquifer. The record fails to provided a basis for serious concern that removal of about 38% of the overburden from a little more than half of the original pit area will so disturb the hydraulic relationship between the Upper Floridan and surficial aquifers as to allow possible sprayfield contaminants to enter the Upper Floridan aquifer, or Geneva bubble at this location, or adversely alter the current recharge rate to the Upper Floridan aquifer or Geneva bubble. There are various factors underlying the reasonable assurance provided by the record as to the contamination and recharge issues through Phase I. First, as to the contamination issue, based on the record, it is unlikely that contaminants will reach the Upper Floridan aquifer through the pit and it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer. Because of the unlikelihood of contaminants traveling through the surficial aquifer and entering the pit coupled with the unlikelihood of any such contaminants reaching the pit passing through the relatively thick confining sediments, Phase I excavation leaves a wide margin for safety within which the hydrogeological limitations of the record do not raise a serious concern. Second, as to the recharge issue, based on the record, it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer and, notwithstanding the proximity of the wells of the Mullet Lake Water Association and Seminole Woods, it is unlikely that the small area covered by the pit relative to the area of the Geneva bubble or even its smaller recharge area would disturb the water budget on which the Geneva bubble depends for recharge to maintain its freshwater properties. Because of the unlikelihood of a significant impact to the site's recharge capacity coupled with the unlikelihood of the relatively small area of the pit disturbing withdrawals from the Geneva bubble, Phase I excavation leaves a wide margin for error within which the hydrogeological limitations of the record do not raise a serious concern. Based on TSR-4 with the six-inch drawdown provision Applicant has not provided reasonable assurance that excavation of Phase II will not adversely affect the Upper Floridan aquifer. The elimination of the additional overburden likewise eliminates the above-described margins of error within which the hydrogeological limitations of the record could, in effect, be ignored.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Governing Board of the St. Johns River Water Management District enter a final order denying the issuance of TSR-4, with the six-inch drawdown, for Phase II and approving the issuance of TSR-4, with the six-inch drawdown, for Phase I, as the phases have been identified in Paragraphs 128- 129 of the Findings of Fact. ENTERED this 14 day of July, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of July, 1992.
Findings Of Fact The Petitioner, E. F. Guyton, has filed an application for a permit which would allow the dredging of a boat slip and construction of a sedimentation basin with boat storage, specifically requiring the excavation of a boat basin, access canal, and access channel on his property which is located on the west shore of Crescent Lake, in Putnam County, Florida. The permit application number is 54-6806. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has the responsibility of appraising those applications such as the one submitted by the Petitioner, E. F. Guyton, and making a decision to grant or deny that permit. The authority for such action on the part of the Respondent resides in Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code. This cause comes on for consideration based upon the Respondent's letter of intent to deny the application, as dated August 22, 1978, after which the Petitioner has filed its petition challenging that intent to deny and requesting that the permit be granted. The petition in behalf of the Petitioner was received by the office of the Respondent on September 8, 1978. It was subsequently assigned to the Division of Administrative Hearings for consideration and that Notice of Assignment was dated September 28, 1978. The proposal for permit calls for excavation of a boat basin 100 feet wide and 480 feet long, leading into an access canal 25 feet wide and 500 feet long. This excavation is in the vicinity of an existing intermittent natural stream. The proposal would call for the removal of approximately 21,000 cubic yards of silt and sand, landward of mean high water. The excavation would be accomplished by use of a dragline to a depth of -2.0 feet MSL. The basin and canal slopes would be 2:1 and stabilization of slopes would be assured by riprap and grassing. A concrete spillway would be constructed at the upper end of the basin to direct the stream flow into the basin. In addition, the proposal calls for the dredging of an access channel through the shallow littoral zone of Crescent Lake to the mouth of the proposed access canal. The dredging involved with the access channel would cause the removal of 400 cubic yards of sediment from an area 250 feet long and as wide as 30 feet. The proposed depth of the channel is 2.0 feet MSL and slide slopes would be 5:1. The spoil would be pumped to a dike holding area on adjacent uplands. The Respondent's Exhibit No. 1, which is the permit application, offers a sketch of the boat basin with secondary sedimentation feature and the attendant access canal and channel. The project lies between U.S. Highway 17 and Crescent Lake, Areas to the south and west of the site are pasture and bayhead wetlands and they serve as a watershed for the aforementioned intermittent stream. Other upland areas in the vicinity are dominated by fully-drained flat woods and well-drained sand hill and messic oak terrain. The project site waterward of the mean high water is part of a shallow littoral zone of the west shore of Cresent Lake. The intermittent stream receives the runoff from the pastureland and drainage from U.S. Highway 17. There is a pronounced change in elevation during the course of the intermittent stream. The submerged littoral zone of the lake, which includes the proposed site of the access canal, falls away at a gentle slope and includes a number of supporting hardwoods, predominantly bald cypress. The area also includes submerged emergent vegetation, which is found in the shallows offshore. These shallows are exposed to favorable sunlight from the point of view of the health of this vegetation. The vegetation includes an emergent bed of oft stem bulrush (Sicrpus validus) which is in line with the proposed channel. Within the photic zone there is submerged tape grass (Valisneria americana) and naiad (Najas sp.). On the shore of Crescent Lake at the project site is found a hardwood swamp in its natural form, together with a creekbed which divides into numerous channels fanning out in the direction of the lake itself. This area of the creekbed contains bald cypress (Taxodium distichum), red maple (Acer rubrum), swamp ash (Fraxinus panciflora), black willow (Salix nigra), black gum (Nyssa biflra), water hickory (Carya aquatica), and wax myrtle (Myrica cerifera). The herbs and ferns in this area include penny wort (Hydrocotyl umbellata), arrow- arum (Peltandra virginica), leather fern (Acrostichum danaeifolium), and royal fern (Osmunda regalis). The sediments found in the creek area are sandy to silty sand. In the area where the boat basin/sedimentation facility would be located, the present intermittent stream is much more confined than in the area of the creekbed. Only in times of heavy rainfall does the water come outside the banks of the intermittent stream and inundate the surrounding territory. This portion of the stream is densely vegetated by a mixture of hydrophytes, facultative hydrophytes, an optimally situated upland species. These include sweet bay (Magnolia virginiana), black gum (Nyssa biflora), and red maple (Acer rubrum). Additionally, there are slash pine (Pinus elliotii), long leaf pine (Pinus palustris), dahoon (Ilex cassine), wax myrtle (Myrica cerifera), water oak (Quercus nigra), wild azalea (Ericaceae), and saw palmetto (Serenoa repens). The sedminets in this area range from very sandy in the slightly higher elevations adjacent to the stream bed to a heavy peat which is found predominantly in the bay tree locations. The uplands in the agricultural area are dominated by water oak, slash pine, long leaf pine, live oak and saw palmetto. A more graphic depiction of the project site and in particular as it relates to the intermittent stream, shore line upland agricultural area, and U.S. Highway 17 may be found in the Petitioner's Exhibits 1 and 2 and the Respondent's Exhibits 2 through 15, which are photographs of the project site. There are numerous varieties of fish in the area of Crescent Lake through which the access channel would be routed. These include: Seminole killifish (Fundulus seminolis), naked goby (Gobiosoma bosci), black bullhead (Ictalurus melas), brook silversides (Labidesthes sicculus), sunfish (Lepomis sp.), large-mouth bass (Micropterus salmoides) and Atlantic needlefish (Strongylura marina) . In addition, there are 35 species of invertebrates which were collected in the studies made by employees of the Respondent in their assessment of this permit application. The names of those invertebrates may be found in the Respondent's Exhibit No. 19 which was admitted into evidence in the course of the hearing. The vegetation and shallow water with a sandy bottom, together with the numbers and species of macro invertebrates, small fishes and immature game fishes point to the fact that this part of the lake serves as a valuable site for the propagation of fish, otherwise referred to as a spawning ground. The water quality in Crescent Lake at the site of the project is good, from the standpoint of gross observations. However, there have been some indications of eutrophication in Cresent Lake. A more complete understanding of the water quality may be gained from an examination of the Respondent's Exhibits 21 through 41 admitted into evidence. These exhibits are constituted of certain water quality reports rendered after extensive testing in Crescent Lake. The rainfall in the area exceeds 54 inches a year, with 50 percent of that rainfall being recorded in the wettest quarter, in which over 7 inches a month would fall. July has recorded 15 inches as a mean measurement over the last 80 years, with the month of May showing less than 2 inches, the month of September showing less than 2 inches and the month of October less than 1 inch. In considering the proposed project, a beginning point would be an examination of the ability of the primary filtration pond and secondary filtration function found in the boat basin, to adequately disperse the pollutants which will come into the system from the agricultural area and U.S. Highway 17. That treatment system is inadequate. The inadequacy exists because in periods of low rainfall the pollutants will settle to the bottom of the siltation system and will not be dispersed evenly. This cycle of low rainfall when followed by heavy rainfall, such as occurs in July, will cause the pollutants to be rapidly discharged from the system into the basin of the lake, either in a dissolved form or a free form, causing an unreasonable dilatorious effect to water quality and creating possible turbidity. The confined nature of the proposed channel which empties into the lake will promote scouring because the water is coming out in a more confined area than the natural access allows at present. In addition, the flow velocity in the secondary siltation system is not strong enough to flush out the pollutants in an efficient manner. Finally, channelization promoted by the system would remove a certain percentage of the biological treatment that occurs in the natural intermittent stream, thereby introducing a greater quantity of pollutants into the lake and reducing oxidation that this biological treatment and natural course of the intermittent stream bed now provides. The project, as contemplated, is very similar in its nature to the canal system in Dunns Creek, a body of water adjacent to Crescent Lake. A study conducted on that canal system revealed a very poor quality of dissolved oxygen, which falls below the water quality standards for Class III waters. (A copy of this report may be found as Respondent's Exhibit No. 20 admitted into evidence.) These are the same standards that would apply to Crescent Lake. In addition, there is a lack of flushing and the development of aquatic weeds deterimental to the fish and invertebrates located in the area of the Dunns Creek canals. Therefore, a similar problem could be expected in the project now under consideration. If the project were completed, the excavation of the material would cause disruption of the sediment and water quality degradation if precipitation occurred during the excavation. Efforts at turbidity control would not protect against a heavy rain and the maturely vegetated stream bed and productive littoral vegetation and substrates would be lost. The long term effects of the project would cause degradation of the water quality and a loss of fish and wildlife resources in the impact area. The filtrative assimilative capacity provided by the algae, shrubs, trees and associated substrates involved in the process of absorption and in aerobic bacterial metabolism, would be eliminated by the project and replaced by an intermittently flushed, highly nutrified shallow water lagoon and canal. Pollutants associated with boat operations would further compound the water quality problems and perpetual sediment disruption would occur because of a natural result of shallow water maintenance and use of the system. Siltation and periodic discharge of degraded basin water into the littoral zone of the lake would adversely effect the productive potential and the habitat potential offered by this area in its present form. Based upon a full assessment of the project, it is established that there would be increased and harmful erosion, shoaling of the channel and the creation of stagnant areas of water. It would also cause an interference with the conservation of fish, marine and wildlife to an extent that is contrary to the public interest. It would promote the destruction of natural marine habitats, grass flats suitable as nurseries or feeding grounds for marine life and established marine soils suitable for producing plant growth of a type useful as a nursery or feeding ground for marine life or natural shoreline processes to an extent contrary to the public interests. These failings are in direct contravention of Chapter 253, Florida Statutes. The project would be contrary to State Water Quality Standards, as developed pursuant to authority of Chapter 403, Florida Statutes. Thus, the Petitioner has failed to give reasonable assurances that the immediate and long term impacts of the project would not result in a violation of the State Water Quality Standards, as required by Rule 17-4.28(3), Florida Administrative Code.
The Issue The issue for determination in this proceeding is whether Respondent, E. Speer and Associates, Inc. (the "Applicant"), should be granted a permit for the construction of a permanent docking facility pursuant to Sections 403.91-403.929, Florida Statutes, and Florida Administrative Code Chapter 17.
Findings Of Fact Whether Quantified Hydrographic Studies Are Necessary For All Marina Applications To Provide Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards Speer's Exceptions Nos. 1, 4, 5, 6, 7 and 8 in whole or in part take exception to the Hearing Officer's conclusion (stated as a finding of fact) that it is not possible to demonstrate adequate flushing without "quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data." (R.O. at 20, 22-24, 47, 49-50, 54, 57-58; F.O.F. Nos. 33, 35, 38-39, 40, 43-45, 64, 66, and 69) It is clear from the tenor of the entire recommended order that the Hearing Officer believes that as a matter of law an expert's opinion is not sufficient to provide reasonable assurances that flushing will be adequate to prevent violations of water quality standards unless that opinion is based on quantified conclusions generated by objective methods and appropriate hydrodynamic data. (R.O. at 47, 49-50, 57-58) Thus, for example, the Hearing Officer opines that quantification of flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data is an essential element of the prima facie showing required to be made by the applicant. (R.O. at 47; C.O.L. No. 11) The Hearing Officer places great significance an the following excerpt from the opinion in 1800 Atlantic Developers v. Department of Environmental Reculation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990): 1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order . . . . The final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons there for are significant to the issues on this appeal. (emphasis added) We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies how productive the marine habitat may be in this case, and no record support for the suggestion that there would be some quantifiable diminution in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added) Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity . . . The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . (emphasis added) 1800 Atlantic, 552 So.2d at 951-952. I do not concur that 1800 Atlantic stands for the proposition that quantified hydrographic measurement of flushing is in all cases an essential element of a prima facie showing that a marina project will not cause violations of water quality standards. Notwithstanding the above noted statement of the court in 1800 Atlantic that "there is no finding of fact . . . that quantifies 'how productive the marine habitat may be' . and no record support . . . that there would be some quantifiable diminution in the quality of marine habitat attributable to [the] project," 552 So.2d 951, the court did not reject the finding that the project adversely affected the conservation of fish and wildlife, fishing or recreation values, and marine productivity. Indeed, had the court rejected the above finding due to lack of quantified findings the court would never have gone on to reach the issue of mitigation because in 1800 Atlantic mitigation could only become relevant if the applicant was unable to provide reasonable assurance that the project satisfies the public interest criteria of Section 403.918(2) (a), Florida Statutes. See Section 403.918(2)(b), Florida Statutes. I do agree that in some cases quantified hydrographic studies of flushing may be required in order to provide reasonable assurances. Thus, in Rudloe v. Dickerson Bavshore, Inc., 10 FALR 3426 (DER Case No. 87-0816, June 9, 1988), my predecessor held that a dye tracer study was necessary to provide quantitative information about dilution rates and directions on dispersion of pollutants emanating from a proposed marina site which was in "close proximity" to Class II waters approved for shellfish harvesting. 10 FALR at 3447-48. However, the need for such quantified studies must be determined on a case by case basis and is not required as a matter of law for all marinas. 5/ Far me to determine as a matter of law that experts may establish a fact only by certain types of evidence would be an unwarranted and unwise intrusion into the scientific domain of the expert. Thus, in Kralik v. Ponce Marine, Inc., 11 FALR 669, 671 (DER Final Order, Jan. 11, 1989), my predecessor held that expert testimony with regard to flushing does not lack credibility just because a hydrographic study had not been conducted. Of course, the finder of fact has the ultimate say on how much weight an expert opinion should be given if it is not based on a quantified study. Thus, whether an expert testifying on adequacy of flushing has conducted a quantifiable hydrographic study merely goes to the weight of the evidence. Kralik, 11 FALR at 671. I only conclude that a quantified hydrographic study for a proposed marina is not in all cases essential for a showing of reasonable assurances that water quality standards will not be violated. Accordingly, to the extent that the Hearing Officer's findings of fact state that a quantified hydrographic study is required in all cases as a prima facie element of a showing of reasonable assurance that a project will not violate water quality standards, I reject such statement as a mislabled and incorrect conclusion of law. Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards I read Speer's Exceptions Nos. 1, 3, 4, 5, 6, 7 and 8 in whole or in part as taking exception to the Hearing Officer's finding that under the facts of this case a quantified hydrographic study was needed in order to provide reasonable assurance that the project would not cause violations of water quality standards, and that because such a quantified hydrographic study had not been conducted, reasonable assurances had not been provided. (F.O.F. Nos. 33, 35, 38- 39, 40, 43-45, 64, 66 and 69) As noted by the Hearing Officer, the applicant's expert testimony concerning the adequacy of the flushing consisted of general statements describing visual observations of river and tidal flows which, together with past experience and knowledge of the general area of the project, formed the basis for the experts' opinions that a quantified hydrographic study was not necessary for this project. (R.O. at 22-23) Thus, far example, Mr. Charles C. Isiminger, accepted as an expert in marina design and hydrographic engineering testified that based on his knowledge of the area, its riverine and tidal flows, a hydrographic documentation was not needed to provide reasonable assurance that the project would not cause water quality violations. Mr. Isiminger also testified that any pollutants entering the water from the marina would be flushed out of the area within one tidal cycle. (Tr. at 65-66, 70, 77- 79, 93, 110, 125, 128, 134) Mr. Thomas Franklin, an environmental supervisor from the Department testified that: the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this area, plus the fact that it was further enhanced by flushing due to the St. Lucie River being -- basically coming around Hell Gate point [sic] and funneling out into this estuary. (emphasis added) TR at 437. Other experts also testified that the area was well flushed and that a quantified hydrographic study was not needed in this case. (Jacqueline Kelly, Tr. at 187; John Meyer, Tr. at 319, 322, 341; Gerald Ward, Tr. at 44749) 6/ Speer asserts that the Hearing Officer's finding that a quantified hydrographic study is required in this case cannot stand in light of the unrebutted expert testimony that the marina site will be well flushed and that the rate of flushing provides reasonable assurances the water quality standards will not be violated. I have found no competent substantial evidence in the record which would support a finding that under the facts of this case a quantified hydrographic study is required. I did note that in Footnote 21 of the Recommended Order (R.O. at 20) the Hearing Officer states: Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. (citing testimony of Mr. Isiminger at Tr. 88-94) At first blush this may appear to be competent substantial evidence supporting a finding that a quantified hydrographic study is necessary in this case. However, when the testimony is read in its complete context, it is clear that Mr. Isiminger is testifying as to what is necessary to do a hydrographic study when one is needed, and is not testifying that such a study is needed in this case. (Tr. 88-94). I also note that the record contains a memo written by Dr. Kenneth Echternacht, a hydrographic engineer employed by the Department. (Tr. at 67-70) This memo was admitted without objection. (Tr. at 23) The memo states in part that "without . . . hydrographic documentation, reasonable assurance cannot be given that the project will not cause problems." (Tr. at 70; Pet. Exh. No. 10) 7/ Dr. Echternacht was not called as a witness at the hearing and the letter was not offered as evidence of the opinion of Dr. Echternacht or the Department at the time of the de novo hearing. To the contrary, the above noted testimony of Mr. Franklin and the testimony of Jacqueline D. Kelly, an environmental specialist of the Department accepted as an expert in evaluating impacts of environmental dredge and fill projects (Tr. at 187, 195; R.O. at 3), clearly establish that at the time of the de novo hearing the Department was of the opinion that further hydrographic documentation was not needed. The Hearing Officer noted that Mr. Meyer testified that the flushing is a "very, very complicated dynamic situation." (Tr. at 320). The testimony was as follows: Q. So you don't know for sure whether the currents here impact this at all or stay offshore from it? A. Oh, the currents definitelv affect it, and you do have interchange -- as I mentioned before, a very high rate of interchange on a daily basis on every tide. Q. Are you saying that the current that flows through here every day flows right through the site? A. We're dealing with two different things here. We're dealing with your currents, your general migration of waters from the estuary from the inland areas down. You're also dealing with tidal effects coming in and out, and it's a very, very complicated dynamic situation. For me to try to tell you exactly how these things work would be impossible without having a very, very long drawn-out expensive study done on the entire area, and I have not reviewed any studies like that. Tr. at 319-20 (emphasis added) When taken in its context it is clear that Mr. Meyer is testifying that there is a very high rate of exchange on a daily basis on every tide. The fact that he viewed the exact details of the flushing as very complicated in no way retracted his statement that there was a very high rate of exchange on every tide. My review of the record leads me to concur with Speer that no testimony, either on direct, cross-examination, or examination by the Hearing Officer, nor any other evidence was introduced to rebut the expert testimony presented by Speer and the Department that flushing on the site was adequate to provide reasonable assurance that water quality standards will not be violated. 8/ As a general rule, the trier of fact may not arbitrarily reject uncontroverted evidence as proof of a contested fact. Merrill Stevens Dry Dock Co. v. G. & J. Investments, 506 So.2d 30 (Fla. 3d DCA 1987), rev. den., 515 So.2d 229 (Fla. 1987); City of St. Petersburg v. Vinoy Park Hotel, 352 So.2d 149 (Fla. 2d DCA 1977); In Re: Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984). This does not mean that a mere scintilla of unrebutted evidence is sufficient to establish a contested fact in an administrative hearing. At least in the context of administrative proceedings, the unrebutted evidence still must be competent substantial evidence to support a finding of fact. 9/ There is no suggestion that the Hearing Officer rejected the unrebutted testimony of the experts of Speer and the Department as not being competent substantial evidence. In fact, in the light of the testimony of Mr. Isiminger (Tr. at 65- 66), Mr. Ward ( Tr. at 447-449), Mr. Meyer (Tr. at 238- 239), and Mr. Franklin (Tr. at 345-350), it is beyond peradventure that there is competent substantial evidence to support a finding that flushing is adequate to provide reasonable assurance that the marina will not cause violations of water quality standards. It is clear from the context of the Recommended Order that the Hearing Officer believed that reasonable assurance had not been provided only because he believed that a quantified hydrographic study was required as a matter of law. Although I reject the Hearing Officer's conclusion that a quantified hydrographic study must be conducted as a matter of law for all marina applications, I must still determine whether a quantified hydrographic analysis is required under the facts of this case. In Rudloe v. Dickerson Bayshore, 10 FALR 3426 (DER Final Order, June 9, 1988) it was held that a hydrographic study was not adequate because it did not include a quantified dye tracer study. Id., 10 FALR at 3448. In Rudloe, as in this case, the marina was located in Class III waters, but near Class II waters. However, in Rudloe, the marina site was much closer to the Class II waters (approximately 1,700 feet in Rudloe (10 FAIR at 3430) as compared to approximately 8,000 feet in this case). (R.O. at 16, F.O.F. No. 26) Also, the Rudloe case is significantly different from this case in that competent substantial expert opinion was presented in Rudloe that the marina would adversely impact the Class II shellfish harvesting area. See Rudloe, 10 FALR at 3433-35, 3437-38 (testimony of DNR expert that operation of marina would result in closure of waters to the harvest of shellfish; testimony of Dr. Robert Livingston that the hydrographic drogue studies conducted were inadequate.) In this case, neither expert nor lay testimony was offered by Barringer to show that operation of the marina would result in violation of water quality standards or have any adverse impact on the Class II shellfish waters. 10/ I conclude that the facts of this case as found by the Hearing Officer are not sufficiently similar to the facts of Rudloe so as to justify holding as a matter of law a quantified hydrographic study is necessary to establish the required reasonable assurances. Since the record contains competent substantial evidence that flushing is adequate to provide reasonable assurance that the marina will not cause water quality violations, and since there is no competent substantial evidence in the record to support the Hearing Officer's contrary finding, I must accept the exception of Speer and reject the Hearing Officer's findings of fact to the contrary. In this case I note that I am not so much rejecting findings of fact as rejecting a conclusion of law. As I noted, the Hearing Officer's finding is really based on a conclusion of law which I reject. This leaves only unrebutted competent substantial evidence that there will be adequate flushing to provide reasonable assurance that the operation of the marina will not result in water quality violations. There is no rational basis to reject this unrebutted competent substantial evidence. Therefore, I must accept as proven that the applicant has provided the reasonable assurances that operation of the marina will not result in water quality violations. Merrill Stevens Dry Dock; City of St. Petersburg; Estate of Hannon; supra, Effect On Class II Waters Speer's Exceptions Nos. 7 and 8 take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the marina would not have a "negative effect" an the Class II waters of the St. Lucie Inlet and the Great Pocket. (F.O.F. No. 43) Rule 17-312.080(6)(b), Fla. Admin. Code provides: The Department also shall deny a permit for dredging and filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. In this case expert testimony was presented by Speer and the Department that due to the distance of the marina site from the Class II waters (8,000 feet) the marina site was not in close proximity to the Class II waters, and due to the rapid flushing of the area, the construction and operation of the marina would neither have a negative effect nor would result in violations of water quality standards in the Class II waters of St. Lucie Inlet and the Great Pocket. (Isiminger, Tr. at 96, 126-27; Meyer, Tr. at 254-55) I find that the record contains no competent substantial evidence to rebut the evidence introduced by Speer and the Department that the marina will have no negative effect on Class II waters and will not result in violation of water quality standards in Class II waters. Accordingly, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In Re: Estate of Hannon; supra. Reasonable Assurance That Operation Of The Marina Will Not Result In Prop Dredging Or Violations Of The State Water Quality Criterion For Turbidity Speer's Exceptions Nos. 1, 2, 9-12, and 16 in whole or in part take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the boat traffic from operation of the marina would not cause prop dredging or violations of the water quality criterion for turbidity. (F.O.F. Nos. 33-34, 45, 48, 52-53, 64, and 67) 11/ On one hand, there was testimony that the depths of the marina, in combination with the size of boats allowed in the various slips, would allow for a one foot clearance from the bottom of the boats to the bottom of the marina, and that this clearance, in combination with speed limits in the marina, would provide reasonable assurance that operation of the marina would not result in prop dredging or turbidity violations. (Isiminger, Tr. at 104-107, 118; Meyer Tr. at 263-65, 299, 304- 305; Kelly, Tr. at 189-190; Ward, Tr. at 460) On the other hand, Bruce Graham, admitted as an expert in marine biology testified that: "A large boat, three feet from the bottom, I think would resuspend sediment." (Graham, Tr. at 378). The Hearing Officer, noting that when asked if one foot clearance is sufficient to prevent prop dredging and resultant turbidity violations, a Department witness, testified: I would have to say that we simply don't have enough documentation to know this for a fact. We know that a foot gives us a degree of comfort that there will not be prop wash. In certain instances -- a tug boat, for instance, you know, with huge engines, you're going to have prop wash over a much -- over a large area and with probably much more than a foot of clearance. But for the normal, typical marina a foot, as I say, gives us a degree of comfort that we have settled on. Neyer, Tr. at 264. The Hearing Officer concluded that the witnesses of Speer and the Department could not explain the reasons or efficacy of the "one foot policy" except to say that in their experience the one foot policy was adequate to prevent prop dredging and turbidity violations. (R.O. at 28 n.35)0 The Hearing Officer thus found that Speer and the Department failed to "prove up" the one foot policy -- i.e., failed to elucidate and explicate the reason for the policy. 12/ Clearly the Hearing Officer placed more weight on the testimony of Mr. Bruce Graham than that of Isiminger, Meyer, Kelly and Ward. Since I cannot say that the testimony of Graham was not competent substantial evidence, I am not at liberty to reweigh the evidence or reject the Hearing Officer's finding of fact. See, Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Speer contends that Barringer presented no evidence that prop dredging will cause sufficient turbidity to violate the state water quality turbidity criterion of 29 NTUs. 13/ That contention misses the point. The burden is on Speer to establish by the preponderance of evidence that reasonable assurance has been provided that operation of the marina will not result in violations of the water quality criterion for turbidity. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Hearing Officer, as the finder of fact, concluded that Speer failed to do so. Accordingly, I reject the exception of Speer and accept the Hearing Officer's finding of fact that Speer failed to provide reasonable assurance that operation of the marina would not cause prop dredging or violations of the state water quality criterion for turbidity. Manatee Impacts and the Public Interest Test Speer's Exceptions Nos. 13 and 17 take exception to the Hearing Officer's finding that Speer failed to do a quantified study of impacts to manatees and therefore failed to provide reasonable assurance that the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat. (F.O.F. Nos. 61, 64 and 68) The Hearing Officer reasoned as follows: Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters covering approximately 20,800 square feet. It could be argued, or course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study. (R.O. at 35, n. 51) As Speer's exception notes, there was testimony that because of the width of the river and boat speed restrictions in the project area, there would be no adverse impacts an the manatee from the marina. (Kelly, Tr. at 162; Meyer, Tr. at 255-56, 331- 32; Isiminger, Tr. at 130) The St. Lucie/Jupiter/Hobe Sound waterways are a major travel corridor for manatees. (DER Exh. No. 4) Between 1974 and December 1990, there were ten water craft related manatee fatalities within the boating sphere of influence of the project. (DER Exh. No. 4) In order to reduce impacts on the manatees, the proposed permit contains the following specific conditions: S.C. No. 13: The permittee agrees to install and maintain a minimum of one manatee education/display on the main access pier during and after construction. S.C. No. 15: The permittee agrees that any collision with a manatee shall be reported immediately [to DNR and U.S. Fish and wildlife Service]. S.C. No. 18: The permittee shall post four (4) manatee area/slow speed signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility. (DER Exh. No. 3) 14/ There was testimony that the piers, once constructed, would not impair the passage of manatees. (Isiminger, Tr. at 114- 115) On the other hand, there was some testimony that manatees may have to go around the project rather than through it. (Meyer, Tr. at 311) The existing boat traffic past the site of the project to the Inlet was "rough1y estimated" at 50 to 100 boats a day. (Meyer, Tr. at 337) The U.S. Fish and Wildlife Service determined that "while [the project] may negatively affect, it is not likely to jeopardize the continued existence of the West Indian Manatee." (Tr. at 120-21) The Hearing Officer concluded that reasonable assurance as to adverse impacts on manatees could not be provided absent a quantified traffic study. (R.O. at 35, n. 51) In Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order March 9, 1990), the Department held that the information needed to determine a marina's impact on manatees and the necessary actions to mitigate such impacts must be decided an a case by case basis. For example, in Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Final Order, Aug. 24, 1989), 15/ a marina sought to expand by adding 113 new wet slips. The marina was required to develop a manatee protection plan far the surrounding portions of the Caloosahatchee River, all new slips were limited to sail boats until the manatee protection plan was implemented and enforced, and power boat occupancy was limited to 75% of the total 174 wetslips in any event. The marina also made available a wet slip for use by the Florida Marine Patrol. In this case there is evidence of significant boat related manatee fatalities in the boating sphere of influence of the proposed marina. There is also evidence of existing traffic of 50-100 boats per day past the project site. In view of the fact that this project would add 86 slips and a public fueling facility, it seems likely that that the project will significantly increase both boat traffic and the threat of manatee collisions. Accordingly, I concur with the Hearing Officer that there is competent substantial evidence to support a finding that further studies are needed to determine what, if any, additional manatee protection conditions are needed to provide reasonable assurance that manatees will not be adversely affected. I conclude that the applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public interest. Therefore, I reject the exception of Speer. Cumulative and Secondary Impacts Speer's Exception No. 15 takes exception to the Hearing Officer's finding that the applicant failed to provide reasonable assurance that there will be no adverse cumulative pacts created either by the cumulative effects of the object and existing similar projects, or by secondary pacts of the project itself. (F.O.F. No. 66) 16/ Cumulative impact analysis takes into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Conservancy v. A. Vernon Allen Builder, supra; Section 403.919, Florida Statutes. Secondary impact analysis considers the impact of the project itself and of any other relevant activities that are very closely linked or causally related to the permitted project. Conservancy, 580 So.2d at 778; J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980. 17/ Thus, in Conservancy the secondary impact analysis was required to consider the environmental impacts of development of 75 estate homes on an island where the development would be reasonably expected as a result of the permitted laying of a subaqueous sewer line. Similarly, in del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), the Department was required to consider the environmental impacts of the foreseeable development of an island facilitated by the permitted building of a bridge to the island. In this case there is competent substantial evidence that there are other marinas located 1,750 feet downstream in Willoughby Creek, and 5,000 feet downstream in Manatee Pocket. (R.O. F.O.F. 31; Isiminger, Tr. at 112; Meyer, Tr. at 261) The record contains competent substantial evidence that the cumulative impact of the project and the existing marinas in Willoughby Creek and Manatee Pocket will not result in violations of state water policy. (Isiminger, Tr. at 125; Kelly, Tr. at 167) I cannot say that the testimony of Isiminger and Kelly on cumulative impacts is not competent, substantial evidence. In light of the fact that there is no competent substantial evidence to indicate that cumulative impacts would result in water quality violations, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersbur; In re: Estate of Hannon; supra. As to secondary impacts, the Hearing Officer pointed out that Speer did not introduce any evidence as to whether there would be secondary impacts to water quality as the result of further development or increased utilization of the uplands facilities. (See F.O.F. 66, n.59, R.O. at 39) Such further development or increased utilization of upland facilities is reasonably foreseeable and would be very closely linked or causally related to the building of an 86 slip marina with public fuel services. As noted above, the applicant has the burden of providing reasonable assurances as to cumulative and secondary impacts. Brown v. DER, supra; Conservancy, supra. However, neither the pleadings nor the pre-hearing stipulation raised the issue of the adequacy of the secondary impact analysis. In a case such as this where the Department's notice of intent to issue a permit has been challenged by a third party, the applicant's prima facie case need only include the application and the accompanying documentation and information relied on by the Department as the basis of its intent to issue. Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The petitioner challenging the permit must identify the areas of controversy and allege a factual basis for its contentions that the applicant did not provide the necessary reasonable assurances. J.W.C., 396 So.2d at 789. See also Woodholly Assoc. v. Department of Natural Resources, 451 So.2d 1002, 1004 (Fla. 1st DCA 1984). Since Barringer did not identify this issue and did not allege any factual basis for a contention that the secondary impact analysis was inadequate or incorrect, I may not rule on the issue in this order. Miscellaneous Exceptions To Findings of Fact Speer's Exception No. 14 takes exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the project will have no adverse impact on (1) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish, and (2) recreational and commercial values in the vicinity. (F.O.F. No. 64) Speer contends that this finding is not supported in the record by competent substantial evidence and is contrary to unrebutted testimony of Ms. Kelly and Mr. Isiminger. (Kelly, Tr. at 159, 161-62, 165-67; Isiminger, Tr. at 73) I cannot say that the testimony of Isiminger and Kelly is not competent, substantial evidence, and I find no evidence in the record to rebut the testimony of Kelly and Isiminger. Therefore, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In re: Estate of Hannon; supra. Speer's Exception No. 3 takes exception to the Hearing Officer's finding that Speer failed to provide a current water quality analysis. (F.O.F. No. 35) A water quality analysis was submitted in April of 1990, shortly after the permit application was filed. (R.O. at 2, 19; F.O.F. No. 34) I find no competent substantial evidence in the record to suggest any reason for believing that the water quality has changed since April of 1990. I agree with Speer that, absent some specific reason for believing that the water quality has changed since the date of a study conducted contemporaneously with the permit application, there is no requirement to provide an updated water quality analysis. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Need For Quantified Hydrographic Study Speer's Exceptions Nos. 1, 7 and 9, in whole or in part, take exception to the Hearing Officer's conclusions of law that a quantified hydrographic study was needed to provide reasonable assurances that the operation of the marina would not result in violations of water quality standards and would would not have a negative effect on Class II waters. For the reasons stated in Parts III(1), (2) and (3) above, I accept this exception and reject the above noted conclusions of law. Introduction Of Issues Not Set Forth In Pleadings Or Pre-Hearing Stipulations Speer's Exceptions Nos. 1, 2, 3, and 5, in whole or in part, take exception to the Hearing Officer's consideration of issues of (1) the need for a quantified hydrographic study, (2) the proximity of the site to Class II waters, (3) turbidity and prop dredging, (4) cumulative impacts, and (5) the need for a quantified study on manatee impacts. For the reasons set forth in Part 111(6) above, I agree that, absent waiver, a petitioner challenging an intent to issue a permit may not raise issues at the hearing which were not raised in the pleadings or pre-hearing stipulations. However, in this case the issue of manatee impacts was raised in the pleadings, and Speer was on notice that it had the burden of proof on that issue. As to the other issues, even if I accepted far the sake of argument that they were not raised in the pleadings or pre-hearing stipulations, Speer failed to timely object to the raising of these issues at the hearing and therefore waived any objection. See Sarasota County and Midnight Pass Society v. Department of Environmental Regulation, 13 FAIR 1727 (DER Final Order, April 4, 1991). Therefore, I reject the above exceptions. Proximity To Class II Waters Speer's Exception No. 2 takes exception to the Hearing Officer's conclusion of law that Speer was required to submit a plan which demonstrated that the marina would not have a negative effect on Class II waters. (C.O.L. Nos. 12 and 13) I do not agree that where a proposed marina site is 8,000 feet from Class II waters and where the site is rapidly flushed as noted in Parts 111(1), (2) and (3) above, that the site is in close proximity with the Class II waters within the meaning of Rule 17-312.080(6), Fla. Admin. Code. Accordingly, I accept this exception and reject the above note conclusion of law. Public Interest Test Speer's Exception No. 4 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurance that the project was not contrary to the public interest. (C.O.L. Nos. 17 and 20) For the reasons set forth in Parts III(4) and (5) above, I reject this exception. Cumulative Impacts Speer's Exception No. 5 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurances that cumulative impacts would not result in water quality violations, and that such assurances could only be provided by a quantified study. For the reasons set forth in Parts III (1), (2), (3) and (6) above, I accept this exception and reject the above noted conclusions of law. Modification Of Permit Conditions Speer's Exception No. 6 takes Exception to the Hearing Officer's conclusions of law Nos. 24-34. These conclusions of law concern questions of the authority of the Hearing Officer and me to modify the conditions of the permit. I agree with Speer that since none of the parties have requested any modifications, these conclusions of law are irrelevant. 18/ Therefore I accept the exception and reject the above noted conclusions of law as irrelevant. Miscellaneous Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that Speer and the Department failed to provide reasonable assurance as to prop dredging and turbidity violations because neither Speer nor the Department sufficiently proved the basis for the one-foot clearance policy. For the reasons set forth in Part III(4) above, I reject this exception. Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that the question of whether mitigation is adequate is a question of law. I agree with the Hearing Officer and reject this exception. See 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Environmental Regulation, enter a Final Order denying the application for a permit to construct the proposed project and denying the request for determination of improper purposes. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of June, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 1550 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992.
The Issue The issue is whether Respondent Koreshan Unity Foundation, Inc., is entitled to a environmental resource permit for the construction of a wooden footbridge over the Estero River east of U.S. Route 41 and authorization to obtain by easement a right to use sovereign submerged lands.
Findings Of Fact Respondent Koreshan Unity Foundation, Inc. (Koreshan) is a not-for-profit corporation dedicated to the preservation of the Koreshan heritage. Koreshan derives its heritage from a largely self-sufficient community that occupied land in south Lee County. For several years, Koreshan has owned a parcel of 14.56 acres at the southeast corner of U.S. Route 41 and the Estero River. This parcel is bounded on the south by Corkscrew Road and contains an amphitheater and historical house, midway between the river and Corkscrew Road. The south end of this parcel contains a museum and parking area with access to Corkscrew Road. The approximate dimensions of the 14.56-acre parcel are 544 feet along the river, 496 feet along Corkscrew Road, and about 1273 feet along the west and the east property lines. The west property line is U.S. Route 41. The right-of-way for U.S. Route 41 is wider at the southern two-thirds of the parcel than the northern one-third of the parcel. A sidewalk runs on the east side of U.S. Route 41 from north of the river, across the U.S. Route 41 bridge, along the west boundary of Koreshan's property, at least to an entrance near the middle of the 14.56-acre parcel. In October 1996, Koreshan acquired 8.5 acres of land at the northeast corner of the U.S. Route 41 and the river. The purpose of the acquisition was to provide parking for persons coming to Koreshan-sponsored events, such as music performances, at the 14.56-acre site. Koreshan rents a small portion of this northerly parcel to a canoe-rental business, which operates where the bridge and river meet. To assist their visitors-some of whom are elderly and disabled--in gaining access to the 14.56-acre site, on November 26, 1996, Koreshan filed an application for a permit and authorization to construct a wooden footbridge across the Estero River about 315 feet east of the U.S. Route 41 bridge. The source of the Estero River is to the east of the U.S. Route 41 bridge and the location of the proposed bridge. After passing under the U.S. Route 41 bridge, the river runs along the Koreshan state park, which is a short distance east of U.S. Route 41, before it empties into the Gulf of Mexico at Estero Bay, which is a state aquatic preserve. The portion of the river at the site of the proposed bridge is an Outstanding Florida Waterway (OFW) and a Class III water. The river is popular with canoeists and kayakers. Persons may rent canoes and kayaks at the canoe rental business operating on the 8.5-acre parcel or the Koreshan state park. Although most canoeists and kayakers proceed downstream toward the bay, a significant number go upstream past the U.S. Route 41 bridge. Upstream of the bridge, the river narrows considerably. Tidal currents reach upstream of the U.S. Route 41 bridge. At certain tides or in strong winds, navigating a canoe or kayak in this area of the river can be moderately difficult. Even experienced canoeists or kayakers may have trouble maintaining a steady course in this part of the river. Less experienced canoeists or kayakers more often have trouble staying on course and avoiding other boats, the shore, vegetation extending from the water or shoreline, or even the relatively widely spaced supports of the U.S. Route 41 bridge pilings, which are about 30 feet apart. Mean high water is at 1.11 feet National Geodetic Vertical Datum. The deck of the proposed footbridge would be 9 feet, 6 inches wide from rail to rail and 16 feet wide in total. The proposed footbridge would extend about 180 feet, spanning 84 feet of water from shore to shore. The bridge- ends would each be about 50 feet and would each slope at a rate of 1:12. The proposed footbridge would rest on nine pilings: four in the uplands and five in the submerged bottom. The elevation of the bottom of the footbridge from the water surface, at mean high water, would be 8 feet, 8 inches. The distance between the centers of the pilings would be 14 feet, and each piling would be of a minimum diameter of 8 inches. According to a special permit condition, the pilings would be treated with chromated copper arsenate, as a preservative, but they would be wrapped in impermeable plastic or PVC sleeves so as, in the words of the proposed permit, "to reduce the leaching of deleterious substances from the pilings." The proposed permit requires that the sleeves shall be installed from at least 6 inches below the level of the substrate to at least 1 foot above the seasonal highwater line and shall be maintained over the life of the facility. The proposed permit also requires that the footbridge be limited to pedestrian traffic only, except for wheelchairs. The permit requires the applicant to install concrete-filled steel posts adjacent to the bridge to prevent vehicles from using the bridge. The proposed permit requires that Koreshan grant a conservation easement for the entire riverbank running along both shorelines of Koreshan's two parcels, except for the dock and boat ramp used by the canoe-rental business. The proposed permit also requires Koreshan to plant leather fern or other wetland species on three-foot centers along the river banks along both banks for a distance of 30 feet. The proposed permit states that the project shall comply with all applicable water quality standards, including the antidegradation permitting requirements of Rule 62-4.242, Florida Administrative Code. Respondents did not raise standing as an affirmative defense. It appears that Petitioners or, in the case of corporate Petitioners, members and officers all live in the area of the Estero River and use the river regularly. For instance, Petitioner Dorothy McNeill resides one mile south of the proposed bridge on a canal leading to the Estero River, which she uses frequently. She is the president and treasurer of Petitioner Estero Conservancy, whose mission is to preserve the Estero River in its natural state. Petitioner Ellen W. Peterson resides on Corkscrew Road, 300-400 feet from the proposed footbridge. For 26 years, she has paddled the river several times weekly, usually upstream because it is prettier. She formerly canoed, but now kayaks. The record is devoid of evidence of the water- quality criteria for the Estero River at the time of its designation as an OFW or 1995, which is the year prior to the subject application. Koreshan has not provided reasonable assurance that the proposed footbridge would not adversely affect the water quality of the Estero River. Although the site of the proposed footbridge is devoid of bottom vegetation and there is no suggestion that this is anything but a natural condition for this part of the riverbottom, there is evidence that the proposed footbridge would adversely affect the water quality in two respects: turbidity caused by the pilings and leaching from the chromated copper arsenate applied to the pilings. The turbidity is probably the greater threat to water quality because it would be a permanent factor commencing with the completion of the installation of the pilings. The leaching of the heavy metals forming the toxic preservative impregnated into the pilings is probable due to two factors: damage to the PVC liner from collisions with inexperienced boaters and high-water conditions that exceed 1 foot over mean high water and, thus, the top of the liner. Both of these factors are exacerbated by flooding, which is addressed below. Koreshan also has failed to provide reasonable assurance that the proposed footbridge is clearly in the public interest under the seven criteria. The proposed footbridge would adversely affect the public health, safety, or welfare and the property of others through exacerbated flooding. South Lee County experienced serious flooding in 1995. In response, Lee County and the South Florida Water Management District have attempted to improve the capacity of natural flowways, in part by clearing rivers of snags and other impediments to flow, including, in the case of the Imperial River, a bridge. One important experience learned from the 1995 floods was to eliminate, where possible, structures in the river, such as snags and pilings, that collect debris in floodwaters and thereby decrease the drainage capacity of the waterway when drainage capacity is most needed. Longer term, the South Florida Water Management District is considering means by which to redirect stormwater from the Imperial River drainage to the Estero River drainage. The addition of five pilings (more as the river rose) would exacerbate flooding. On this basis alone, Koreshan has failed to provide reasonable assurance. Additionally, though, the HEC II model output offered by Koreshan does not consider flooding based on out-of-banks flows, but only on the basis of roadway flows. In other words, any assurances as to flooding in the design storm are assurances only that U.S. Route 41 will not be flooded, not that the lower surrounding land will not be flooded. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect the conservation of fish and wildlife, for the reasons already stated with respect to water quality. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect navigation or the flow of water. The flow of water is addressed above. Navigation is best addressed together with the next criterion: whether the proposed activity would adversely affect fishing or recreational values or marine productivity in the vicinity of the activity. Despite the presence of only two public launch sites, boating is popular on the Estero River. Reflective of the population growth of Collier County to the south and the area of Lee County to the north, the number of boaters on the Estero River has grown steadily over the years. The canoe- rental business located on the 8.5-acre parcel rented canoes or kayaks to over 10,000 persons in 1996. Many other persons launched their canoes or kayaks for free from this site and the nearby state park. Lee County businesses derive $800,000,000 annually from tourism with ecotourism a growing component of this industry. The Estero River is an important feature of this industry, and the aquatic preserve at the mouth of the river and the state park just downstream from the proposed footbridge provide substantial protection to the scenic and environmental values that drive recreational interest in the river. It is unnecessary to consider the aesthetic effect of a footbridge spanning one of the more attractive segments of the Estero River. The proposed footbridge and its five pilings effectively divide the river into six segments of no more than 14 feet each. This fact alone diminishes the recreational value of the river for the many canoeists and kayakers who cannot reliably navigate the U.S. Route 41 bridge pilings, which are more than twice as far apart. As to the remaining criteria, the proposed footbridge would be permanent and the condition and relative value of functions being performed by areas affected by the proposed activity is high. There is conflicting evidence as to whether the proposed footbridge would adversely affect the remnants of an historic dock, but it is unnecessary to resolve this conflict. The mitigation proposed by Koreshan does not address the deficiencies inherent in the proposed activity.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner Council of Civic Associations, Inc., and denying the application of Respondent Koreshan Unity Foundation, Inc., for an environmental resource permit and authorization to obtain an easement for the use of sovereign land. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Kathy Malone Vice President and Treasurer Council of Civic Associations, Inc. Post Office Box 919 Estero, Florida 33919-0919 Reginald McNeill Dorothy McNeill, President Estero Conservancy, Inc. 26000 Park Place Estero, Florida 33928 Mark E. Ebelini Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Phyllis Stanley, President 12713-3 McGregor Boulevard Fort Myers, Florida 33919 Cathy S. Reiman Cummings & Lockwood Post Office Box 413032 Naples, Florida 34101-3032 Francine M. Ffolkes Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
Findings Of Fact Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.
Recommendation From the foregoing, it is RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William W. Carpenter, Esquire 830 East Highway 434 Longwood, Florida 32750
