Findings Of Fact Petitioner has submitted an application to the Respondent for a permit to fill a 140' x 200' area of a salt marsh near the San Sebastian River in St. Augustine, Florida. Petitioner is the owner of the land. Petitioner proposes to construct a seafood restaurant and parking lot. The parking lot would be placed on the landfill, and the restaurant would be built on pilings approximately 50' outward from the landfill. Petitioner's original application requested a permit to fill an area 140' x 300' but at the hearing Petitioner indicated that an area 140' x 200' would be adequate. The area which Petitioner proposes to fill is bounded on the east by U.S. Highway 1, and on the west by a railroad right-of-way. The area is bounded on the north and south by undeveloped salt marsh land. The area upland from the Petitioner's land, across the highway, has been commercially developed. Petitioner's property would be valuable for commercial uses if it were filled. Petitioner submitted her original permit application to the Respondent's Gainesville office. The permit had not been approved by the City Commission of St. Augustine, and the Petitioner was instructed to apply for such approval. The Petitioner requested that the building inspector issue a permit, but the inspector informed the Petitioner that they had no such permits. The Petitioner's request to the City Commission was agendaed, and he appeared before a regular City Commission meeting. The Commission voted unanimously to approve the Petitioner's request, but did not discuss the potential environmental impact of Petitioner's proposed landfill. Petitioner received formal notification of the City Commission's action by letter from the City Attorney to the Respondent dated February 24, 1976. The letter was received in evidence as a part of Hearing Officer's Exhibit 3. The letter provides as follows: "This is to inform you that the City Commission of the City of St. Augustine, Florida, approved the request of Mr. Manucy in regard to the above in accordance with your letter of February 2, 1976, without attempting to comply with any of the provisions of Chapter 253, Florida Statutes. It was the understanding of the City Commission and Mr. Manucy that in accordance with your letter, Mr. Manucy's only need was an approval by the City Commission without the necessity of any public hearing or compliance with Chapter 253." The referenced February 2 letter was received in evidence as Petitioner's Exhibit 1. The Respondent initially accepted the City Attorney's letter as adequate approval by the local government. Only through the filing of a motion (Hearing Officer's Exhibit 3) one week prior to the hearing did the Respondent contend that the local government's approval was insufficient. The site of Petitioner's proposed landfill is a salt marsh. The area is affected by tidal fluctuations. A tidal creek flows under the railroad tracks several hundred feet to the south of Petitioner's site. The primary vegetation covering the proposed site is cordgrass. Other species include saltgrass and glasswort. All of these plants are wetland plants. Approximately 75 percent of the proposed fill site is below the mean high water line. The only part of the proposed fill area which is not below the mean high water line is a portion of the site on the highway fill, and a portion of the site which has been used for a billboard. Although the marsh and the tidal flow in the marsh has been restricted by the railroad right-of-way and the highway, it is a viable and functioning salt marsh ecosystem. A salt marsh ecosystem is a rather fragile and unique system where fresh and salt water systems merge. A pooling of nutrients collects in such an area as a result of tidal flows and storm water runoff from uplands. Marshgrass, including cordgrass, absorbs these nutrients and utilizes them through a cycle of growth, death and decay which results in detritus, the most important food source in the salt marsh. A variety of marine species, including shrimp, mullet, and mollusks feed on the detritus. These species form a part of the food chain for larger marine species. Some small fish, shrimp and mollusks, spend their entire life cycle in the salt marsh. Others spend only the early part of their life cycle. Without a viable functioning salt marsh area, an essential link in the marine food chain would be lost. A landfill, such as that proposed by the Petitioner, would eliminate a portion of the salt marsh, and would inevitably damage the tidal flow to other portions of the salt marsh, thus reducing the functionability of the marsh as a marine habitat, and as a producer of detritus. A salt marsh ecosystem filters pollutants which enter the marsh from upland stormwater runoff. This filtering effect is essential in maintaining the water quality of nearby open bodies of water. The salt marsh serves as a filter system because the marsh grasses absorb potential pollutants, and utilize them in the food chain. Petitioner's proposed landfill would eliminate a part of this essential filtering system and would replace it with a parking lot from which additional runoff would be introduced into the marsh. The effect of Petitioner's isolated project upon the water quality of the salt marsh, and upon the marine habitat may not be susceptible of accurate measurement. It is apparent that Petitioner's proposed landfill would replace an ecologically positive salt marsh with a landfill that would introduce additional runoff into the water. It is also clear that any proliferation of such projects would cause an easily measured and extremely damaging impact upon the water quality, and the marine habitat.
The Issue Whether a consumptive use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant Phillips Petroleum Company submitted application Number 7500103 for a consumptive use permit for an average daily withdrawal of 9,000,000 gallons of water a day to be withdrawn from the Florida Aquifer in DeSoto County, Florida. The application is for a new use and the withdrawal is for industrial use from four withdrawal points. The center of withdrawals will be located at Latitude 27 degrees, 14 minutes, 40 seconds north. Longitude 82 degrees, 2 minutes, 48 seconds west, in DeSoto County. Notice of the September 3, 1975 public hearing was published in a newspaper of general circulation, to wit: The Arcadian on August 14 and 21, 1975, pursuant to Section 373.146, Florida Statutes. Notice of the continuation of the hearing held at 10:30 a.m., December 11, 1974 were duly noticed. Sarasota County was granted leave to intervene as a party to the proceeding. Evidence was received and testimony was heard by all parties at the September 3, 1975 hearing and evidence was received and testimony was heard by she Applicant and Intervenor at the December 11, 1975 hearing, and although the attorneys for the Southwest Florida Water Management District took no further part in the December 11, 1975 hearing on the merits, depositions of the Southwest Florida Water Management District staff members, James Mann and Barbara Boatwright, were received. Phillips Petroleum Company owns approximately 15,200 acres of land in DeSoto County and Manatee County and proposes to commence a phosphate mining operation on that property using a total of 15 million gallons of water per day, 9,000,000 gallons per day (MGD) from DeSoto County and 6 million gallons per day (MGD) from Manatee County. This application for a permit is for the 9 million gallons of water to be withdrawn from an 8,700 acre parcel owned by the Applicant in DeSoto County, Florida. As such it presumptively seeks withdrawal and consumptive use of no more than the average annual water crop for this parcel. Pursuant to the water crop theory, the water crop for the 8,700 acres contro led by the Applicant in the Southwest Florida Water Management District is 8.7 million gallons of water per day. However, as shown by correspondence of a hydrologist from Southwest Florida Water Management District, a phosphate mining operation is only 90 percent consumptive and therefore the actual consumptive use is 7.8 million gallons per day and falls within the water crop theory assumption set forth in Rule 16J-2.11(3), F.A.C., infra. The statutory criteria for granting a consumptive use permit is found in Section 373.223, Florida Statutes, which states: "(1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: Is a reasonable-beneficial use as defined in 474.019(5); and Will not interfere with any presently existing use of water; and Is consistent with the public interest. (2) The governing board of the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest." This statute has been supplemented by rules adopted by the Southwest Florida Water Management District and is found in Rule 16J-2.11, F.A.C.: "16J-2.11 Conditions for a Consumptive Use Permit. The intended consumptive use: Must be a reasonable, beneficial use. Must be consistent with the public interest. Will not interfere with any legal use of water existing at the time of the application. Issuance of a permit will be denied if the withdrawal of water: Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board. Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board. Will cause the level of the surface of water to be lowered below the minimum level established by the Board. Will significantly induce salt water encroachment. Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant. Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be three hundred sixty-five thousand (365,000) gallons per year per acre.") The United States Geological Survey and the Florida Department of Environmental Relation have received data supplied to Southwest Florida Water Management District with the application for a consumptive use permit. Throughout the course of the hearing testimony was heard and evidence was received as to the "leakance value" of the parcel of land in question. "Leakance value" was defined as the moving of water from the surface down into the deeper aquifer. A geologist, Mr. Donald S. Kell, with the Department of Environmental Regulation, and who testified at the request of the Intervenor, Sarasota County, was of the opinion that insufficient data to determine leakance value in connection with the mining operation had been submitted and therefore further tests were needed. Mr. Jack Hickey of the United States Geological Survey was of the opinion that leakance value had not been obtained. The technical staff members of the Southwest Florida Water Management District were uncertain as to whether reliable leakance value had been obtained. It was the position of the Intervenor, Sarasota County, that due to the geological conditions of the proposed mining operation, this leakance value or surface recharge into the aquifer was insufficient and was not in conformity with Southwest Florida Water Management District's water crop theory assumption of 1,000 gallons per acre per day. Although evidence was presented on this point, it is the finding of this Hearing Officer that such evidence was insufficient to establish the basis of, any finding of fact or to rebut the assumption contained in the above referenced rule. The validity of this rule was not challenged and the presumption is that the rule is valid. The water used in the flotation process of applicants mining and benefication process would be recycled and reused in other areas of the phosphate operation. A letter of objection by Donald T. Yeats was examined and considered in this Order. The Applicant presented evidence that the construction of the facility would be in excess of $94 million expended over a period of 3 years, 61 percent of which would be spent in the region. 350 people would be employed at full production. Additional support jobs would employe from 200-400 people. Evidence was presented by the Applicant and was not rebutted by the Intervenor or by the Southwest Florida Water Management District as to each of the applicable conditions for a consumptive use permit in Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, effectuating the provisions of Chapter 378, Florida Statutes.
Recommendation That the Southwest Florida Water Management District approve Phillips Petroleum Company's application for a consumptive use permit as requested, subject to the following terms and conditions: Prior to commencing withdrawals, Phillips Petroleum shall notify the District of said commencement; All production wells will be equipped with appropriate flow deters or other measuring devices; Phillips shall submit periodic reports of withdrawal to the District; and Phillips shall install appropriate observation wells or other monitoring facilities. DONE and ORDERED this 12th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jacob D. Varn, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler 2000 Exchange Bank Building Tampa, Florida Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida Richard E. Nelson, Esquire Richard L. Smith, Esquire Nelson, Payne, Hesse and Cyril 2070 Ringling Boulevard Sarasota, Florida
The Issue The issue is whether to approve an application by Respondent, Monroe County (County), to modify its Environmental Resource Permit (ERP) No. 44-00149-S (Permit) to authorize the construction and operation of Runway Safety Area (RSA) improvements for the existing 9/27 runway and associated wetland mitigation work at Key West International Airport (Airport).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Last Stand is a Florida not-for-profit corporation formed in 1987 for the purpose of protecting and preserving the natural environment and quality of life in the Florida Keys. It was organized to respond to development impacts being experienced in Key West in the 1980's, including an effort at that time by the County to expand the Airport runway. It is fair to say that the organization and its members have had a long-standing interest in the Airport and the surrounding area from an environmental perspective. The organization has approximately two hundred thirty members; the vast majority live in Key West. A substantial number of the members recreate, bird watch, and enjoy the natural habitats of the Florida Keys. The organization has regularly represented its members in administrative and judicial proceedings since its inception in opposing land use and permitting decisions that it believes have negative environmental impacts. In the 1800's, the Island of Key West had a single large salt pond "complex," with many fingers, comprising around one hundred acres, which was used in the production of salt through evaporation of seawater. (The testimony indicates that, besides the larger salt pond, other salt ponds were also located on the Island.) Due to filling activities over the years, the larger salt pond in particular, as well as the other ponds, have become fragmented, with multiple shallow-water tidal ponds, collectively known by their historical name, Key West Salt Ponds (Salt Ponds). The Salt Ponds in and around the Airport are one of the few "natural areas" remaining in the City of Key West. What is known today as Duck Pond (also identified as SW-7 on application drawings) was once part of the large salt pond and lies at the western end of the Airport on Airport property. The impacts on Duck Pond are the primary focus of this case. Most of the Salt Ponds are accessible to the public and members of Last Stand only by kayak or boat. In the case of Duck Pond, it lies just south of Government Road, a public roadway which runs in an east-west direction on the north side of the Airport, and is fenced off for security purposes. Although Duck Pond is not accessible by the public, one can stand on Government Road and observe it a short distance to the south through a chain link fence. Through live and deposition testimony, Last Stand identified thirteen members, or approximately five percent of the total membership, who regularly or occasionally enjoy bird watching from Government Road. Besides this activity, other members (unidentified by number or name) periodically visit the Salt Ponds area (but not specifically Duck Pond) primarily to engage in activities such as educational field trips, hiking, boating, kayaking, bicycling, fishing, and similar endeavors. Last Stand contends that the proposed improvements to the RSA will substantially reduce the number of birds and/or ducks that use Duck Pond for feed and rest, and that the improvements will cause the loss of unique habitat (fish) that is part of Key West's natural and cultural history and heritage. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. The project area is within the regulatory jurisdiction of the District. The County is a non-chartered county and a political subdivision of the state. It owns and operates the Airport on which the improvements are proposed. If approved, depending on funding availability, construction on the proposed Project will begin sometime between 2009 and 2012. The parties have agreed that the County has the financial, legal, and administrative capability to ensure that the Project will be undertaken in accordance with the terms and conditions of the permit, thereby meeting Florida Administrative Code Rule 40E-4.301(1)(j). The Project Site The Airport is located in the eastern portion of the City of Key West. There are Salt Ponds around the Airport and approximately sixteen wetlands and five surface waters in and around the Project area. The Salt Ponds are designated as Outstanding Florida Waters (OFWs) and must meet Class III water quality criteria. The existing (and only active) runway (Runway 9/27) at the Airport2 runs in an east-west orientation and is 4,801 feet in length. The County is proposing to construct an RSA for the existing runway. An RSA is a graded area surrounding the runway that is designed to reduce the risk of structural damage to the aircraft and injury to its occupants in the event of an overshoot or undershoot, or if the aircraft otherwise runs off of the paved runway surface. The RSA's stable surface also provides greater accessibility for firefighting and emergency rescue vehicles during such incidents. An RSA surrounds the entirety of a runway on all four sides. The existing RSA at the Airport is approximately three hundred feet in width along the length of the runway, extends approximately one hundred and ten feet in length beyond the west end of the runway (Runway 27), and extends in an irregular shape approximately two hundred to four hundred feet beyond the east runway end (Runway 9). It does not meet the FAA's current design standards for an RSA. The Airport has held a Part 139 certificate issued by the FAA since at least the 1970's, if not earlier.3 Part 139 certification authorizes the County to provide scheduled air carrier service at the Airport. As part of its obligation under Part 139, the Airport is required to provide an RSA that meets FAA design standards. The Airport has an Airport Reference Code (ARC) of C-III, which is determined by the size and type of aircraft that use the Airport. The FAA design standard for an ARC C-III runway requires an RSA that is five hundred feet in width along the length of the runway and extends one thousand feet beyond both ends of the runway. This is referred to as the "standard RSA" for the Airport. The existing RSA configuration at the Airport was previously grandfathered, primarily due to environmental and development cost issues. However, due to a major runway rehabilitation (resurfacing) project conducted in 2003, Part 139 now requires that the Airport provide an RSA that meets applicable safety standards. The RSA proposed for this project is smaller than the standard RSA. It is four hundred feet in width along the length of the runway and at both ends, except for a two thousand foot section on the north side of the runway where the width is reduced by fifty feet. On the west end of the runway, the RSA will extend six hundred feet beyond the runway end. On the east end of the runway the RSA will extend three hundred seventy-five feet beyond the runway end. The east end RSA is smaller than the west end RSA because the County will use an Engineered Materials Arresting System (EMAS) allowing it to reduce the footprint of the RSA from six hundred to three hundred seventy- five feet in length. An EMAS is a bed of lightweight, engineered, crushable concrete that works to slowdown and stop an aircraft that has overshot a runway, minimizing human injury and aircraft damage. An EMAS operates much in the same way as runaway truck ramps made of gravel. The FAA requires that an airport conform to the requirements in Part 139 "to the extent practicable." An RSA that does not meet Part 139 standards to the greatest extent practicable places an airport at risk of losing its Part 139 certification. In cases where full compliance with a standard RSA cannot be met, due to unique terrain or environmental conditions, the FAA evaluates and approves alternatives that improve safety through a non-standard RSA. In this case, the FAA approved the proposed alternative RSA configuration by its issuance of a Final Environmental Assessment. See County Exhibit 17. The FAA determined that the RSA footprint could not be made any smaller than the proposed Project or it would not improve safety at the Airport. In approving the design, the FAA noted that the new RSA "meets FAA design standards to the greatest extent practicable, thus improving safety for arriving and departing passengers and aircraft at [the Airport] while maintaining the utility and benefits of the [A]irport for the citizens of Monroe County." Id. It added that the RSA improvements were consistent with "the Council on Environmental Quality's regulations implementing the National Environmental Policy Act" and that it was unnecessary to prepare an Environmental Impact Statement for the project. Id. The Project will result in impacts to 6.38 acres of mangrove wetlands, 0.36 acres of exposed rock with marsh grasses, and 1.64 acres of bays and estuaries, for a total of 8.38 acres. The County proposes to implement a mitigation proposal at two different locations within and adjacent to the Airport that includes 11.30 acres of mangrove swamp and tidal flat creation, 3.64 acres of bay and estuary creation, 5.21 acres of wetland enhancement, and 0.96 acres of upland hammock enhancement, for a total of 21.11 acres. Mitigation Area No. 1 (4.44 acres) is located on Airport property at the west end of the proposed RSA and is designed to compensate primarily for impacts to Duck Pond. Mitigation Area No. 2 (17.27 acres) is located north of the Airport at the east end of the runway and is designed to help offset the functional losses of wetland habitats impacted by the Project. Last Stand has not contested the second mitigation area. The History of the Airport and the Salt Ponds The Airport is owned and operated by the County, and the Board of County Commissioners sets the policy for the management of the Airport. The Airport has operated as a commercial service airport since approximately the late 1950's, or long before ERP requirements were implemented. Prior to commercial service, the Airport was a training facility during World War II. (Military operations in the Key West area are now located at the Naval Air Station at Boca Chica Key, three miles east of the Airport.) Before its use by the military, it was known as Meacham Field and historic photos dating back to 1928 document its use as an airfield. Over the years, the Airport has undergone several improvements and renovations that were reviewed and permitted by the District, including taxiways and aprons, a terminal, car rental facilities, and a parking lot. Although Boeing 727s (operated by Eastern Airlines) and 737s (operated by Air Florida) once provided commercial service at the Airport, the largest commercial aircraft today are regional jets, which have been providing service since around 2002. The use of larger regional jets increases the dimensional standards for the RSA. The production of salt began in a portion of what is now known as the Salt Ponds in the 1830's and continued until the Civil War, at which time it ceased. Production began again after the Civil War and continued sporadically until 1876, when a large hurricane destroyed the works. Approximately one hundred acres were used for salt production, and as late as 1912 the salt works were still visible, albeit in a dilapidated condition. Duck Pond, which is the focus of this case, is located at the west end of the runway and was never a part of any of the salt works. Instead, the area now occupied by Duck Pond was open water through the end of World War II. Historically, Duck Pond was part of a larger system of salt ponds that was neither isolated nor impounded, but instead open with connections to the Atlantic Ocean. The modern-day Duck Pond was created at some point shortly after World War II and gradually enclosed into the man- made, semi-impounded, seasonally hypersaline water body that is present today. Its present-day configuration is not natural, but man-induced. It is a semi-impounded 2.81-acre, L-shaped pond that lacks a direct regular tidal connection, and is subject to tidal flushing only during storm tides. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Florida Administrative Code Rules 40E-4.301(1)(b), (c), (g), (h), (i), (j), and (k), and 40E-4.302(1)(a)5., (1)(a)6., (1)(c), (1)(d), and (2). At hearing, Petitioner also stipulated that the wetland impacts on the east end of the Project and Mitigation Area No. 2 are not being challenged. Remaining in dispute as to the impacts on the west end of the Project are the value of functions criteria (40E-4.301(1)(d) and BOR Section 4.2.2.); elimination and reduction criteria (40E-4.301(3) and BOR Section 4.2.1); secondary impacts (40E-4.301(1)(f) and BOR Section 4.2.7); mitigation criteria (40E-4.301(3) and BOR Section 4.3); cumulative impacts (40E-4.302 and BOR Section 4.2.8); water quantity criteria (40E-4.301(1)(a)); water quality criteria (40E-4.301(1)(e) and (2) and BOR Sections 4.2.4.4, 4.2.4, 4.2.4.1, and 4.2.4.2); and the public interest criteria (40E-4.302(1) and BOR Section 4.2.3). The following relevant provisions in Florida Administrative Code Rule 40E-4.301(1) require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; * * * will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources . . . . Florida Administrative Code Rule 40E-4.302 contains additional conditions for issuance of ERP permits, including the public interest test and the cumulative impacts analysis. These conditions are found in the following provisions: In addition to the conditions set forth in Rule 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District", incorporated by reference in Rule 40E-4.091, F.A.C.: Whether the activity will adversely affect the public health, safety or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; * * * 7. The current condition and relative value of functions being performed by areas affected by the proposed activity. * * * Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District", incorporated by reference in Rule 40E-4.091, F.A.C. Water Quality Florida Administrative Code Rule 40E-4.301(1)(e) requires the County to provide reasonable assurances that the proposed Project will not adversely affect the quality of receiving waters (the Salt Ponds) such that water quality standards will be violated. The Salt Ponds are designated as OFWs and must meet Class III water quality criteria. The existing runway and taxiway system for the Airport will drain as it has previously to adjacent surface waters. The only area that is being changed as a result of this permit modification is the RSA. The slope of the filled RSAs will be very gentle, with a grade a little over one percent. Nevertheless, these gently sloped areas will slow the water down sufficiently as it runs off, allowing it to percolate into the ground and allowing vegetation to uptake any pollutants before they reach the adjacent surface waters. The Staff Report also authorizes a temporary mixing zone in accordance with Section 4.2.4.4 of the BOR. This is intended as a temporary measure which allows some pollution to occur during the construction phase without necessarily requiring that the project be shut down. Temporary mixing zones are a customary feature of stormwater management systems of this sort. Section 4.2.4 of the BOR provides criteria requiring that "reasonable assurances regarding water quality must be provided for both the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal and abandonment of the system." To comply with this requirement, the County demonstrated that neither short-term nor long-term water quality impacts will occur. Short-term water quality considerations are discussed in Section 4.2.4.1 of the BOR and apply to practices undertaken during the construction phase. The County complied with the short-term requirements by (1) providing for turbidity barriers adjacent to the wetlands and surface waters during the construction phase; (2) providing a turbidity monitoring plan to be implemented during the construction phase; (3) stabilizing newly created slopes adjacent to wetlands or surface waters to prevent erosion and turbidity; (4) prohibiting the use of any vessels during construction to prevent any dredging or rutting; (5) establishing construction staging areas in uplands to ensure that oils, greases, gasoline, or other pollutants will not be released; and (6) utilizing any fill generated by the proposed Project to prevent any discharge from spoil sites. The Operational Plan for the Runway Safety Area Improvements (Operational Plan) also contains the water quality protection measures to be implemented during the construction phase. See County Exhibit 26. Long-term water quality considerations are discussed in Section 4.2.4.2 of the BOR. The County complied with the long-term water quality considerations by (1) increasing the internal connections of Mitigation Area Nos. 1 and 2 with the surrounding salt ponds, thereby improving water quality; (2) stabilizing any disturbed soils with vegetation to prevent erosion; and (3) preventing discharges and releases of pollutants from the system by implementing the Best Management Practices (BMPs) recommended in the Florida Department of Transportation's Florida Airports Stormwater BMPs Manual. The Operational Plan also addresses long-term measures by ensuring that all grass clippings are collected from the sodded RSA, prohibiting the use of any pesticides, fertilizers, or herbicides on the RSA, and ensuring that sediment barriers are installed as soon as possible after an emergency to reduce the potential for discharges to the adjacent waterbodies. Given all these measures, the proposed Project will not cause any violation of applicable OFW or Class III water quality standards. In fact, the volume and rate of stormwater runoff from the runway will be reduced if the Project is constructed. Last Stand did not present any testimony or evidence to the contrary. In addition to these water quality measures, the County provided reasonable assurances that (1) the proposed Project will not result in any new stormwater runoff to the Salt Ponds beyond existing conditions; (2) the RSA and the EMAS surface will not be used by aircraft or other vehicles; and (3) the proposed Project will not induce additional activity or alter the use of the airfield. Last Stand has questioned the overall adequacy of the water quality data relied upon by the County. Its allegation regarding water quality violations from nearby septic tanks is unsupported by the evidence. Further, a contention that salinity data alone is an inadequate gauge of water quality is contradicted by its own testimony that "[s]alinity is an excellent way of determining water quality, a parameter to learn about a water body or a series of connected water bodies." District witness Peekstok added that physical and biological indicators alone can and are used to determine the health of a system. In any event, Last Stand concedes that water quality in the Salt Ponds or the mitigation areas was not at issue. Although Last Stand alleges that an understanding of the ambient water quality of the Salt Ponds is critical to analyzing water quality, this assertion is unpersuasive. First, there is no evidence that any water quality standard is being violated. Nonetheless, Florida Administrative Code Rule 40E- 4.301(2) imposes additional water quality standards if the existing ambient water quality of the receiving waterbodies does not meet standards. The rule requires an applicant to comply with the requirements set forth in Section 4.2.4.5 of the BOR, which refers back to the short and long-term water quality considerations in Sections 4.2.4.1 and 4.2.4.2. The County has addressed these parameters. There is no documentation that the existing runoff has adversely affected the receiving waters. Given all the above precautionary measures, there will be no adverse water quality impacts to the receiving water bodies from the Project. To the contrary, dissolved oxygen levels should improve, as should the general water quality of the Duck Pond, as a result of connecting the culverts and increased flushing. The salinity regime of the reconfigured Duck Pond will also more closely mimic the surrounding conditions. The more credible testimony shows that water quality will not be degraded, and in fact, will likely improve. Therefore, the County has given reasonable assurances that the proposed Project complies with Florida Administrative Code Rule 40E-4.301(1)(e) and (2). Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that the County demonstrate that the proposed Project will not cause adverse water quantity impacts to receiving waters and adjacent land and not exceed the capacity of the downstream receiving water bodies. In this case, the receiving water bodies are the Salt Ponds. The County demonstrated compliance with these criteria through the unrebutted testimony of witnesses Johnson and Waterhouse. Together, they provided evidence that the proposed Project would not increase or change the amount of runoff or drainage coming off the property currently by rate, flow, or volume. In fact, the amount of surface water runoff will either remain the same or even be reduced. County Exhibit 7 includes a Drainage Report, which contains the analysis in support of this testimony. Based on these considerations, it is found that the County provided reasonable assurances the proposed Project will not result in adverse water quantity impacts. Functions To Fish, Wildlife And Listed Species Florida Administrative Code Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a system will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Section 4.2.2 of the BOR adds that an applicant must provide reasonable assurances that the project will not impact the values of wetland or other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife, and listed species; and (b) the habitat of fish, wildlife, and listed species. The manner in which an assessment of impacts on the value of functions is made is further described in BOR Section 4.2.2.3 as follows: The assessment of impacts expected as a result of proposed activities on the value of functions that any wetland or other surface water provides to fish, wildlife, and listed species will be based on a review of pertinent scientific literature, hydrologic information, and field inspection. When assessing the value of such functions, the factors which the District will consider are: condition, hydrologic connection, uniqueness, location, and fish and wildlife utilization. Id. This information, which supports the County's conclusions on the functional values, is contained in the RSA Environmental Report received in evidence as County Exhibit 36. The proposed Project impacts wetlands and surface waters that are part of the Salt Ponds. These wetlands include mangroves, open water shallow salt ponds, and exposed rock with marsh grasses. A total of 13.92 acres of wetlands and surface waters are within the Project site. The Project impacts 8.38 acres of these wetlands, which consist of 6.38 acres of mangrove habitat, 0.36 acres of exposed rock with marsh grasses, and 1.64 acres of Duck Pond. (Around 1.178 acres of Duck Pond will not be impacted.) The Salt Ponds are open water, tidally-influenced, estuarine environments with varying degrees of submerged aquatic vegetation. The mangrove communities immediately surrounding the open water Salt Ponds consist of red, black, and white mangrove species. The mangroves adjacent to the runway are trimmed in accordance with a Department of Environmental Protection (DEP) Permit and Consent Order. Florida Administrative Code Rule Chapter 62-345 requires impacts to the value and function of wetlands to be assessed using the Uniform Mitigation Assessment Methodology (UMAM). The UMAM provides a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions are reduced by a proposed impact, and the amount of mitigation necessary to offset that loss. See Fla. Admin. Code R. 62-345.100(2). The County prepared two UMAM assessments, one for the proposed wetland impacts, and one for the proposed mitigation areas. See County Exhibits 29 and 30. Last Stand did not conduct a UMAM assessment. The UMAM assessment for the wetland impacts, conducted by County witness Connor, calculated that 5.41 functional units would be lost. Last Stand focused solely on the potential impacts to Duck Pond from the proposed Project. It presented no evidence on any of the other wetlands or surface waters within the proposed Project. Duck Pond is at the west end of the runway and is located within the Airport property boundary. It has been impacted over the years by man's activities, such as road construction, military facilities, runways, and related development. It is surrounded by open areas, roadways, and a runway to the east. Its location at the end of a runway results in a high degree of disturbance (such as noise and wake turbulence) from aircraft landing at, or exiting from, the Airport. While all parties agree that Duck Pond provides resting and feeding functions, primarily to birds, the value of these functions is comparatively lower than the other surrounding salt ponds. Duck Pond suffers from limited internal circulation and connections with the other salt ponds due to years of filling and construction and lack of maintenance to two existing culverts. In its current state, Duck Pond is a very harsh environment due to extreme fluctuations in salinity, temperature, water levels, and dissolved oxygen. These fluctuations are not conducive to maintaining abundant fish and wildlife. Comparatively, the surrounding salt ponds do not experience these extremes because internal connections allow the circulation and exchange of water. As a result, the surrounding salt ponds support a larger and more diverse population of fish and wildlife. Last Stand's argument that these fluctuations are unique and ecologically beneficial to fish and wildlife is rejected. To demonstrate compliance with Section 4.2.2 of the BOR, the County presented various scientific analyses and sampling reports evidencing Duck Pond's lower functional value when compared to the surrounding salt ponds. The County conducted two separate salinity sampling events, one in December 2005 and a larger study in October 2007, entitled the Salt Ponds Salinity Sampling Report (Sampling Report). See County Exhibit The 2007 sampling event demonstrates the hypersalinty in Duck Pond, with salinity readings ranging from 32 parts per thousand to 57 parts per thousand. The other salt ponds registered salinity readings between 29 and 36 parts per thousand. The salinity of ocean water is 33 parts per thousand. The unrebutted evidence from the Sampling Report demonstrates the higher fluctuations of salinity in Duck Pond, as compared to the other salt ponds. To document bird usage within the Salt Ponds and Duck Pond, the County presented the Preliminary Wildlife Hazard Assessment Report, May 2005 (Report) received in evidence as County Exhibit 70. The Report provided a quantitative survey of birds observed at the Airport over a four-day period from December 6 through 9, 2004. The Report demonstrates that the Salt Ponds, in general, are used by a variety of birds, including migratory waterfowl and the reddish egret, and Duck Pond was not used by any one specific bird to the exclusion of the other Salt Ponds. Last Stand admits that Duck Pond does not provide an exclusive habitat to migratory waterfowl. The evidence indicates that Duck Pond has little or no submerged aquatic vegetation, thus lessening its feeding value for birds. The presence of submerged aquatic vegetation is indicative of a salt pond's higher functional value to fish and wildlife. As discussed by County witness Connor, Duck Pond has a five percent cover of submerged aquatic vegetation, while the salt pond to the north has about eighty percent coverage and the salt pond to the south has about thirty-to-forty percent coverage. The lack of seagrass is caused by harsher salinity regimes as well as wide temperature and water level fluctuations. The County also conducted a qualitative fish sampling in the Salt Ponds during December 2007 to determine the level and extent of fish present. A few species were observed in the Salt Ponds including the Key Silverside, a state listed threatened species. Mr. Connor, who physically conducted the fish sampling, noted that the abundance of fish in the large salt pond to the north of the Airport was the greatest, followed by the large salt pond to the south and west of the Airport. Duck Pond, where he was able to survey the entire pond, had the least amount of individual fish documented. The County provided copies of its sampling results to, and consulted with, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, two federal agencies having jurisdiction over fish and wildlife. The agencies both commented that the proposed Project would not adversely impact fish or wildlife. Section 4.2.2.4 of the BOR also requires an applicant to provide reasonable assurances that the project will not change the hydroperiod (the time when a wetland or surface water is covered with water) of a wetland or other surface water so as to adversely affect wetland functions or surface water functions. The evidence demonstrates that the water levels within the remaining portion of Duck Pond and Mitigation Area No. 1 will improve because they will not fluctuate as widely. In any event, to comply with BOR Section 4.2.2.4(c), the County is required to maintain and monitor Mitigation Area No. 1 to ensure no adverse impacts. Last Stand contends that Duck Pond is a "unique" habitat, different from the other salt ponds because there was only "one original natural salt pond," which Duck Pond is a part of, and the only place that migratory waterfowl can stop to rest on their migration south during the wet season. However, this argument is not supported by the evidence. While Last Stand agrees with the County's evidence regarding Duck Pond's historical connections to the other salt ponds and the Atlantic Ocean, it still maintains that the pond should remain in its semi-impounded state because of its current unique attributes. Uniqueness is defined in Section 4.2.2.3(c) of the BOR as "the relative rarity of the wetland or other surface water and its floral and faunal components in relation to the surrounding regional landscape." The evidence demonstrates that the floral and faunal components of Duck Pond are limited due to the mangrove trimming and the high fluctuations in salinity and water levels. Its relationship to the surrounding salt ponds is likewise limited and diminished. Although Last Stand contends that Duck Pond is "unique," it acknowledges that there are "hundreds" of other ponds in the Lower Keys used by migratory waterfowl. If Duck Pond has unique characteristics, they are not ecologically beneficial or positive when compared to the habitat in the surrounding salt ponds. Therefore, Duck Pond is not unique, as defined by the BOR. Last Stand presented only twenty-year-old data in support of its contentions. The data consisted of two twenty- year-old photographs of migratory waterfowl purportedly using Duck Pond and one salinity report from 1986, with no salinity data from Duck Pond. It did not sample the salinity in Duck Pond, did not conduct a UMAM analysis, did not conduct a secondary or cumulative impacts analysis, did not conduct any fish sampling, and did not conduct any macroinvertebrates sampling to support its position. In contrast, County witness Connor has visited Duck Pond approximately fifteen times since 2001, while District witness Peekstok has been on the site more than twenty times. The preponderance of the credible evidence supports a finding that the County provided reasonable assurances that the proposed Project will not cause adverse impacts to fish, wildlife, or listed species, as required in Section 4.2.2 of the BOR. Elimination and Reduction Florida Administrative Code Rule 40E-4.301(3) requires an applicant to explore and implement practicable design modifications to eliminate and reduce wetland and surface water impacts. BOR Section 4.2.1 provides that: Design modifications to reduce or eliminate adverse impacts must be explored, as described in subsection 4.2.1.1., which states that except as provided in subsection 4.2.1.2., if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of sections 4.2.2 through 4.2.3.7, then the District in determining whether to grant or deny a permit, shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts. Section 4.2.1.1 of the BOR adds that Except as provided in section 4.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of sections 4.2.2 through 4.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts. The term modification shall not be construed as including the alternative of not implementing the system in some form, not shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is not technically capable of being done, is not economically viable or which adversely affects public safety through the endangerment of lives or property is not considered "practicable." To comply with this requirement, before it filed an application, the County prepared an Alternatives Analysis Working Paper, exploring twenty design modifications for the RSA. See County Exhibit 23. In assessing the various modifications, the County considered the level to which a particular design would improve safety at the Airport, the degree of environmental impacts, and the constructability, cost, and operational feasibility. Because the purpose of the RSA project is to improve safety at the Airport, any design modifications that did not substantially improve safety, that is, increase the width of the RSA beyond its current three-hundred-foot width, were rejected. Using the standard RSA as the baseline, modifications that resulted in substantially higher wetland impacts or impacts to historic resources were rejected, including the standard RSA option. The standard RSA would have resulted in approximately twenty-four acres of wetland impacts. Instead, the County chose Alternative No. 18 as the proposed Project. Alternative No. 18 impacts 8.38 acres of wetlands and surface waters. This is a sixty percent reduction in wetland impacts (from 24.5 acres to 8.38 acres) when compared to the standard RSA. Impacts to the highest quality wetlands and surface waters (Wetlands 1A, 4, 5, 6A, 8 and Surface Waters 1, 6A, 6B, 8) were eliminated. The impacts to high quality surface waters 6A and 6B were eliminated by creating the notch in the northern length of the runway. The County reduced the amount of impacts to Wetlands 1B, 2, 3, 7a, 7b, and Duck Pond. Notably, by reducing the width of the west end RSA to four hundred feet, the impacts on Duck Pond were reduced from 1.93 acres to 1.64 acres. Accordingly, it is found that Alternative No. 18 best balances the need to improve safety while eliminating and reducing wetlands impacts through practicable design changes. Last Stand contends that impacts to Duck Pond should have been eliminated completely or reduced further. At hearing, it presented two alternative modifications: (1) shifting the runway to the east to avoid impacting Duck Pond, and (2) reducing the footprint of the west end RSA by using EMAS material, similar to the east end RSA. As to the first alternative, Last Stand suggests shifting the runway to the east to avoid impacting Duck Pond, but at the expense of the east-end mangroves. However, the mangroves to the east of the proposed Project are of higher function and value than Duck Pond. Last Stand's main contention is that the east-end mangroves are already trimmed under a DEP Consent Order. While it is true that the County trims mangroves around the runway, including those adjacent to Duck Pond, the mangroves affected by this suggested alternative can only be trimmed to fifteen-to-twenty feet under the Consent Order, as opposed to the mangroves surrounding Duck Pond, which are trimmed more extensively. Further, Mr. Connor stated that the east-end mangroves are some of the most highly functioning mangroves on the entire island of Key West. Even Land Stand admitted that the east-end mangroves have "a lot of functional value," and it presented no data, analysis, or UMAM assessments on the function and value of the eastern mangrove wetlands. The more credible evidence demonstrates that shifting the runway to the east would result in an increased amount of impacts to higher quality wetlands, in violation of the elimination and reduction criteria. Further, shifting the runway to the east is beyond the scope of the elimination and reduction criteria. The elimination and reduction criteria pertain to proposed projects. See § 4.2.2.1, BOR. The proposed Project in this case involves the RSA, not the runway, an already existing and permitted feature of the Airport. The District has never interpreted this rule to require modifications to already existing facilities. Therefore, shifting the runway to the east to eliminate impacts to Duck Pond is not a practicable modification, as defined in BOR Section 4.2.1. Alternatively, Last Stand argues that an EMAS should have been used on the west end RSA to reduce impacts to Duck Pond. It contends that if an EMAS was acceptable on the east end, then it should be appropriate on the west end. In order to use an EMAS on the west end of the runway, however, a "standard EMAS" application of six hundred feet in length and four hundred feet in width is needed. Since an EMAS crushes under the weight of an aircraft to slow planes down, it is not appropriate for aircraft to land in the EMAS. Because of prevailing winds, the predominant flow of air traffic is from west to east, and the west end is more susceptible to undershoots. Placing an EMAS immediately adjacent to the west runway end would pose a significant safety concern for aircraft that undershoot the runway, potentially landing in the EMAS bed. A standard EMAS application on the west would require more graded surface adjacent to the runway for planes landing short. Thus, this configuration results in a footprint that is essentially the same as the proposed Project and does not lessen wetland impacts. As such, the modification of installing an EMAS on the west end in the same size as the east end is not a practicable modification because it adversely affects public safety. A standard EMAS on the west does also not lessen wetland impacts. Besides these two modifications, Last Stand questions the general "need" for an RSA at the airport, citing a number of reasons, including the Airport's historical low accident rate; the sufficiency of the current RSA; the FAA's inaction over the years regarding the County's Part 139 certification even though the Airport has a non-standard RSA; and the predominant landing pattern of aircraft from west to east, making an RSA on the west end unnecessary. None of these arguments is persuasive. The evidence establishes that an airport's safety record is not a factor in whether an RSA is required; that the flow of traffic is irrelevant because an RSA is required around the entirety of the runway; and that due to runway improvements in 2003, the FAA did mandate the County to investigate and implement RSA improvements to the extent practicable, as documented in the FAA's Environmental Assessment. See County Exhibit 17. Finally, Last Stand questions whether the "financial feasibility" of various modifications was adequately considered. The BOR provides that modifications which are not financially feasible are not practicable, giving an applicant the opportunity to demonstrate the feasibility of a modification with respect to its financial impact. In making this argument, Last Stand relies upon a Recommended Order entered in the case of Captiva Civic Association, Inc., et al. v. South Florida Water Management District, et al., DOAH Case No. 06-0805, 2006 Fla. Div. Adm. Hear. LEXIS 527 (DOAH Nov. 8, 2006). (In response to the Recommended Order, an Order of Remand was entered by the District on December 15, 2006, but no further action was taken as the case eventually settled and the file was closed by the Administrative Law Judge on February 14, 2008.) In that case, the Administrative Law Judge ruled that the District had not adequately considered the financial feasibility of additional elimination and reduction before accepting the applicant's claim that it could not eliminate or reduce any further due to the financial impact. Id. at *62. However, it was the applicant who raised the financial feasibility as its basis for not exploring additional modifications. As District witness Peekstok explained, financial feasibility is simply an option in the elimination and reduction criteria similar to the other options in the rule. There is no requirement that the District investigate financial feasibility for every single ERP application, but only for those applicants who raise this as a reason why they cannot modify a project. Here, there is no evidence that the County failed to explore or implement any modifications due to cost. In fact, the contrary is true, because the RSA improvement project was given a maximum feasible cost of $10.3 million by the FAA, while the proposed Project is estimated to cost $11.8 million. More importantly, Last Stand's reliance on the Captiva case was misplaced, because as found above, Last Stand did not present one practicable modification that cost more than the proposed Project, yet resulted in fewer impacts. Even though the County conducted an exhaustive elimination and reduction analysis, the County's agreement to place approximately fifty-five acres of salt pond wetlands under a perpetual conservation easement triggered the so-called "out provision" of the elimination and reduction criteria. That provision is found in Section 4.2.1.2(b) of the BOR and states The District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when: * * * (b) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In addition to Mitigation Area Nos. 1 and 2, which on their own offset the wetland impacts, the County agreed to preserve an additional fifty-five acres of salt pond habitat, as added reasonable assurances. These fifty-five acres are referred to as Preservation Area No. 3. It is clear that the restoration and preservation of the Salt Ponds has been a long- standing regional restoration plan in Key West, championed primarily by Last Stand. The evidence demonstrates that Preservation Area No. 3 adds to the regional plan to preserve the Salt Ponds and provides greater long-term ecological value than Duck Pond, in accordance with Section 4.2.1.2(b) of the BOR. In summary, the evidence supports a finding that the County explored and implemented practicable design modifications. As established by an FAA representative, an RSA smaller than the proposed Project would lose the project's safety benefits and improvements; therefore, it would not be a practicable modification. The County properly analyzed and explored practicable design modifications in accordance with Section 4.2.1 of the BOR. In addition, since the addition of Preservation Area No. 3 meets the criteria in BOR Section 4.2.1.2(b), it is also found that compliance with the elimination and reduction criteria in Section 4.2.1 of the BOR was not mandated. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurances that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.2.8 through 4.2.8.2. Section 4.2.8 requires an applicant to provide reasonable assurances that the regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters "within the same drainage basin as the regulated activity for which a permit is sought." If an applicant mitigates wetland impacts within the same drainage basin as the impacts, and the mitigation fully offsets these impacts, the project will be considered to have no unacceptable cumulative impacts. See, e.g., Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298 (DOAH Aug. 27, 2002); 2002 Fla. ENV LEXIS 297 (SFWMD Nov. 14, 2002). The proposed Project is within the Atlantic Ocean Drainage Basin. It is undisputed that the wetlands impacts and the mitigation are proposed within the same drainage basin. Since the impacts are being offset within the same drainage basin, and the mitigation offsets the impacts, the County provided reasonable assurances that the proposed Project will not result in any unacceptable cumulative impacts, in accordance with BOR Section 4.2.8. Secondary Impacts Florida Administrative Code Rule 40E-4.301(1)(f) and Sections 4.1.1(f) and 4.2.7 of the BOR require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources. Section 4.2.7 of the BOR states in part that "an applicant must provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource . . . ." De minimis or remotely related secondary impacts will not be considered unacceptable. See § 4.2.7(a). The secondary impacts analysis has been stated as impacts that occur outside the direct footprint of the project, but which are very closely linked and causally related to the activity to be permitted. See, e.g., The Conservancy, Inc., et al. v. A. Vernon Allen Builder, Inc., et al., 580 So. 2d 772, 779 (Fla. 1st DCA 1991). To comply with this criterion, the County is mitigating for the secondary impacts associated with Wetland No. The proposed Project directly impacts 0.68 acres of Wetland No. 2, leaving 0.17 acres unaltered, but hydrologically isolated. The County is therefore mitigating for the remaining 0.17 acres to address the hydrological secondary impact. No other secondary impacts are anticipated. Duck Pond is habitat for several species of fish, including the Key Silverside, a listed state fish in the Salt Ponds. During the dry season, when the water level drops, these fish become more concentrated, providing feeding opportunity for wading birds. While there are no formal management guidelines or rules adopted for the Key Silverside, the County reviewed the conservation recommendations contained in the Florida Natural Areas Inventory, "Field Guide to Rare Animals of Florida." See County Exhibit 62. The County implemented the conservation practices recommended in this document, which include (a) preventing loss of mangrove habitats by eliminating impacts to the east-end mangroves, and (b) the installation and opening up of three culverts to allow fish access to Mitigation Area No. 1, Duck Pond, and Preservation Area No. 3. By incorporating these conservation recommendations, the County complied with BOR Section 4.2.7(b), providing reasonable assurances that no adverse secondary impact would occur to this listed species. Last Stand further contends that the proposed Project will result in an increase in airport operations, and this increase in activity generates a need for a secondary impacts analysis on the related impacts. The unrebutted testimony of the County and FAA established that the proposed Project will not result in any increases in airport operations. To the contrary, the evidence showed that the proposed Project will not increase the length of the runway or its pavement strength, both of which are primary factors in airport capacity. Also, it will not change the ARC designation assigned by the FAA. Thus, there is no causal relationship or close link between the RSA and increased airport traffic. As to this issue, then, a secondary impacts analysis was not required. Therefore, it is found that the County provided reasonable assurances that no adverse secondary impacts will occur, as required by BOR Section 4.2.7. G. Mitigation Florida Administrative Code Rule 40E-4.301(3) requires an applicant to address the mitigation requirements in the BOR. Section 4.2.1 of the BOR provides that any adverse impacts remaining after design modifications have been implemented may be offset by mitigation. Section 4.3 of the BOR specifies that mitigation is required only to offset the adverse impacts to the functions of wetlands. The proposed Project will impact a portion of Duck Pond. To offset the functions provided by Duck Pond, the County has proposed creating Mitigation Area Nos. 1 and 2. The UMAM for the wetland impacts calculated 5.41 functional units to be offset. The same analysis indicates that Mitigation Area Nos. 1 and 2, together, will generate a functional gain of 6.02 units. The gain of 6.02 units more than offsets the loss of 5.41 units. Mitigation Area No. 1 is located on the west end of the proposed RSA and is primarily intended to replace the functions lost by impacting 1.64 acres of Duck Pond. This mitigation creates 1.73 acres of open water salt pond that will be contiguous with the remaining 1.17-acre portion of Duck Pond. A mangrove fringe will also be constructed around the mitigation area. In total, Mitigation Area No. 1 will be 4.44 acres in size and consist of 2.71 acres of mangrove habitat surrounding 1.73 acres of open water pond. The bottom elevations of the mitigation area will match that of Duck Pond, with a depth of minus one-foot elevation. The planting plan includes mangroves and salt-water grasses, planted at elevations that correspond with the existing topographic elevations of Duck Pond. The mitigation plan includes opening up two existing culverts (which are now essentially blocked with silt) and adding a third culvert from Mitigation Area No. 1 and Duck Pond to the salt ponds to the south and west of the Airport. These culvert connections are intended to increase the internal circulation of water from Mitigation Area No. 1 to the other salt ponds, stabilizing the salinity and water level fluctuations and thereby stabilizing the habitat for a larger array of species. Last Stand acknowledges that Mitigation Area No. 1 will provide resting and feeding habitat for wading birds and migratory waterfowl. Although Duck Pond currently has sparse seagrasses, the County and District expect that seagrasses will grow more abundantly in Mitigation Area No. 1 and the remaining portion of Duck Pond as a result of the proposed Project allowing seed source to travel into Mitigation Area No. 1. Because the mitigation will not be immediately adjacent to the runway, the mangroves will not require trimming. The combination of seagrasses, mangroves, and their detrital export, and the ability for fish to move in and out of the mitigation area, is expected to provide more feeding opportunities to birds and other wildlife. Also, Mitigation Area No. 1 will not be located at the end of the center of the runway (as Duck Pond is currently); therefore, the mangrove fringe around the open water portion of the area will be allowed to grow much larger, which will provide greater foraging opportunities. Finally, birds using Mitigation Area No. 1 will not experience the turbulence and noise emanating from the aircraft as they do currently. Preservation Area No. 3 adds an additional fifty-five acres of salt pond habitat that will be connected to Mitigation Area No. 1. The County's UMAM assessment of this area generated an additional 1.5 functional units above and beyond the 6.02 units calculated from Mitigation Area Nos. 1 and 2. In total, the County is proposing 7.52 functional units to offset the loss of 5.41 functional units. This more than offsets the impacted functions. In all, the Salt Ponds comprise between four and five hundred acres. (As noted above, the original salt pond near the Airport was approximately one hundred acres.) The three mitigation areas to be preserved equal approximately seventy- five acres of salt pond habitat, which amounts to close to twenty percent of the salt pond habitats. Although not precipitated by the mitigation criteria, conserving Preservation Area No. 3 adds additional reasonable assurances that whatever functions are provided by Duck Pond will be offset. Mitigation Area Nos. 1 and 2, along with Preservation Area No. 3, will be placed under a perpetual Conservation Easement in favor of the District. Last Stand presented no evidence contesting the adequacy or appropriateness of these Conservation Easements. Last Stand has questioned the adequacy and potential success of Mitigation Area No. 1 in several respects. First, it asserts that Mitigation Area No. 1 is not "like-kind" mitigation because it does not create a replica of Duck Pond's unique habitat, an impounded water body. This argument, however, misstates the purpose of mitigation by essentially advocating that only a replica of Duck Pond would be acceptable. Mitigation offsets the value of the function provided by the impacted resource and does not need to be a replica of the impacted resource, just similar. The evidence demonstrates that Mitigation Area No. 1 was designed using similar details from Duck Pond. For example, the plants will be planted at the same elevations; the extracted bottom of Duck Pond will be placed in the planting zones of Mitigation Area No. 1; and the two existing culverts will be restored at the same elevations and sizes, resulting in resting and feeding functions similar to Duck Pond. Most of the restoration projects that have occurred in the Salt Ponds have included restoring water circulation to the Salt Ponds and have been supported by Last Stand. The 1990 Conservation and Recreational Lands Report, which Last Stand witnesses Borel and Kruer contributed to, recommends restoration of the Salt Ponds through increased water circulation. See Petitioner's Exhibit 1. The County's mitigation efforts are consistent with this principle. Alternatively, Last Stand claims the design of Mitigation Area No. 1 will not allow internal circulation of water with the other salt ponds. More specifically, it contends the design of the channel connecting Mitigation Area No. 1 to Preservation Area No. 3 is flawed because it is a five-foot-wide ditch and will only allow water to "leak out." This assumption is incorrect. Mitigation Area No. 1 will actually have a ten foot wide channel at the bottom, while sloping up to a width of eighteen feet at the top of the bank, connecting to Preservation Area No. 3 and allowing adequate flow and interchange of water between the two. This is confirmed by the signed and sealed engineering drawings of the County, which were not contradicted. The County is also required to abide by the maintenance and monitoring requirements contained in the Staff Report to ensure the success of the mitigation. Section 4.3 of the BOR states that in certain cases, "mitigation cannot offset impacts sufficiently to yield a permittable project" when the regulated activity significantly degrades an OFW, adversely impacts habitat for listed species, or adversely impacts wetlands or other surface waters not likely to be successfully recreated. The County demonstrated that the project will not degrade the OFW, that it will not adversely affect a listed species, and that the mitigation will be successful. Accordingly, it is found that the County provided reasonable assurances that the proposed Project will offset its impacts in accordance with Section 4.3 of the BOR. G. The Public Interest Test In addition to complying with the requirements of Florida Administrative Code Rule 40E-4.301, the County must also address the criteria contained in the so-called Public Interest Test, which are found in Florida Administrative Code Rule 40E- 4.302(1)(a)1.-7. and Section 4.2.3 of the BOR. See also § 373.414(1)(a), Fla. Stat. Because the proposed Project discharges to an OFW, the applicable standard is whether the Project is "clearly in the public interest." In interpreting the Public Interest Test, the District looks at the seven factors in the rule and balances the potential positive and potential negative effect of a project to determine if it meets the public interest criteria. In applying this test, the District is limited to a consideration of matters within the substantive jurisdiction of the District. The seven factors are balanced, and need not be weighed equally. Fla. Admin. Code R. 40E-4.302(1)(a). Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others The County provided reasonable assurances that the Project will not adversely affect public health, safety and welfare. To the contrary, the project is intended to improve public health, safety, and welfare by improving the RSA at the Airport. Similar to the examples in Section 4.2.3.1 (a) of the BOR, the Project will reduce impacts to the surrounding wetlands and surface waters by preventing an aircraft from overshooting or undershooting into the surrounding salt ponds and surface waters. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats The District's public interest review of this criterion is encompassed within the review of the system under BOR Section 4.2.2. As found, the mitigation will offset impacts to fish and wildlife, particularly the resting and feeding functions. The more credible testimony indicates that the mitigation plan would improve the abundance and diversity of fish and wildlife in the Salt Ponds. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E- 4.302(1)(a)2. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling The Project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the proposed Project's construction would result in harmful erosion, shoaling, or impede the flow of water. Instead, it will improve the flow of water, and numerous precautionary measures will ensure no harmful erosion or shoaling. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)3. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity Last Stand's witnesses agreed that Duck Pond does not provide any fishing, boating, kayaking, skiing, or hunting uses because it is located within the Airport property and is inaccessible to the general public. The proposed Project does not support any marine productivity uses such as fish nursery habitat. The only recreational use discussed by Last Stand is bird watching, which members do from Government Road through a chain link fence. Last Stand acknowledges that its members will still be able to bird-watch from this road when Mitigation Area No. 1 is constructed. Therefore, the Project is deemed positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the regulated activity will be of a temporary or permanent nature or affect archaeological resources The parties have stipulated that the Project is permanent in nature and there are no significant archeological or historical resources that will be adversely affected by the Project. Therefore, the Project is considered neutral as to these factors. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity The current condition and relative value of functions currently provided by Duck Pond are lower than the surrounding Salt Ponds. While the Project will affect the current condition of Duck Pond and other wetlands and surface waters for the purposes of construction, the County proposes mitigation which will improve and enhance these functions. On balance, the testimony has demonstrated that the internal circulation of water within the Salt Ponds is ecologically beneficial as opposed to maintaining the current semi-isolated and impounded conditions experienced by Duck Pond. Therefore, the Project is positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value of the functions provided by Duck Pond and other affected wetlands and surface waters. See Fla. Admin. Code R. 40E- 4.302(1)(a)7. Overall, the Project is positive when the criteria are weighed and balanced. The importance of improving safety at the Airport by reducing the potential for fatalities and injuries cannot be overlooked or underestimated. This is clearly an important goal and one which is in the public's interest. When weighed and balanced against all the factors, it is determined that the proposed Project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting the County's application to modify its existing ERP No. 44-00149-S to authorize the construction and operation of Runway Safety Area improvements to the existing runway and associated wetland mitigation work at the Key West International Airport. DONE AND ENTERED this 20th day of April, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2009.
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
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 Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
Findings Of Fact The Hearing Officer's findings of fact in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order. The Florida Audubon has filed 80 pages of exceptions comprising 98 exceptions to findings of fact and 33 exceptions to conclusions of law. I have grouped these exceptions and ruled on them under the categories listed below. Scope of Remand and Hearing Officer's Preliminary Statement. Florida Audubon's Exceptions No. 1(A)-1(G), 2(A)-2(M), 3(A)-3(C), 4(A)- 4(B), 5(A)-5(C) and 9(A)(3) in whole or in part take exception to the Hearing Officer's preliminary statement of the background of the case and the scope of the issues on remand. My review of the record in this case leads me to conclude that the Hearing Officer's factual summary and statement of the issues on remand in her preliminary statement is an accurate and concise description of the background of this case and is based on matters of record and competent substantial evidence. Accordingly, I reject these exceptions. Furthermore, the Hearing Officer's preliminary statement comprises neither findings of fact nor conclusions of law. Therefore, a ruling on these exceptions is not actually required. 5/ Nature of the Proposed Development. Florida Audubon's Exceptions 8(A)-8(I) in whole or part take exception to the Hearing Officer's description in F.O.F. Nos. 1-9 of the nature of the proposed development. These exceptions do not assert that F.O.F. Nos. 1-9 are not supported in the record by competent substantial evidence. Rather, the gist of these exceptions is that the Hearing Officer overlooked or did not give proper weight to evidence that may suggest a contrary finding. It is well settled that where a Hearing Officer's finding of fact is supported in the record by competent, substantial evidence. I am not at liberty to reject or modify it. See e.g., Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Nor may I reweigh the evidence considered by the Hearing Officer. Heifetz, supra. My review of the record shows that the Hearing Officer's F.O.F. Nos. 1-9 are supported in the record by competent, substantial evidence. The following summarizes F.O.F. Nos. 1-9 and the competent substantial evidence in the record which supports them. The proposed development on the island has been approved by the City of Naples and involves the refurbishment and expansion of existing Keewaydin Club facilities along with the construction of 42 single family homes within the city's jurisdictional boundaries. (F.O.F. No. 1: App. Remand Ex. 2). The Applicant is limited in its improvement of the Keewaydin Club facilities as follows: Construction must occur within the existing club property boundaries. A maintenance facility, firehouse, helipad and additional tennis courts are to be constructed. In addition, two buildings containing guest units and a building with 21 staff units can be built. Existing buildings can be remodeled to continue in their present functions and the clubhouse can be expanded by an additional 4,400 square feet. (F.O.F. No. 2: Stipulation of Respondents; DER Remand Ex. 2.). Marina expansion has been proposed by the Applicant, along with elevated walkways through jurisdictional wetlands, but are not essential to the proposed development. For purposes of consideration of secondary impacts the hearing on remand assumed that the marina expansion and walkways would be constructed so that the secondary impacts of the potential development could be considered during the current dredge and fill permit review. (F.O.F. No. 3: DER Remand Ex. 2; DER Remand Ex. A at 18-19). The 42 single family homes are planned for specific locations south of the club property. These homes will be on 15,000 square foot lots. It is anticipated that they will be landscaped with native vegetation and that residents will move around the island via golf carts on cart paths. (F.O.F. No. 4: App. Remand Ex. 2 at 1-1, 1-5, 1-16, 1-38, 2-7 to 2-9, and 5-2; App. Remand Ex. 11 at 6; Tr. at 413-15). Because the city has limited the planned development to the 42 residential units and the improvements to the club, both the Department of Natural Resources and South Florida Water Management District have approved permits specifically tailored to this development plan. (F.O.F. No. 5: App. Remand Exh. 2; App. Remand Ex. B at 6-10, App. Remand Ex. 11). The privately owned portion of the island cannot be developed further because of the city's approval conditions for this project. These two conditions are: (1) City Ordinance 89-5843 mandates all of the property in the land options involved with future development must be annexed into the city; and Once the property is annexed, the Applicant will give the city a conservation easement over 2,270 acres. This acreage is to be retained in its natural state and is expected to be maintained as suitable habitat for fish, plants and wildlife. (F.O.F. No. 6: App. Remand Ex. 2 at 1-3, 1-30; App. Remand Ex. 6; App. Remand Ex. 11; App. Remand Ex. A at 11-12). The City of Naples requires the developer to eliminate all septic tanks serving the Keewaydin Club as one if its conditions for approval of the current project. This has the potential to positively impact and improve current water quality on the island. (F.O.F. No. 7: Tr. at 317, 323-24; App. Remand Ex. D at 12; App. Remand Ex. F at 13 and 15; App. Remand Ex. 2). Specific measures have been proposed to minimize development impacts on the wildlife known to inhabit the island. Preservation of the osprey nest zone, upland gopher tortoise habitat, control of wheeled traffic on the beach, use of indirect lighting to avoid disorientation of baby atlantic loggerhead turtles as they hatch from nests, and trapping programs to control the raccoon population are prepared and ready for implementation. (F.O.F. No. 8: App. Remand Ex. 2; DER Remand Ex. A. at 22; DER Remand Ex. 2). The vast number of natural plant species on the island will be protected in designated areas. The preservation has been planned so representatives of species of interest will continue to thrive. (F.O.F. No. 9: App. Remand Ex. F at 16; DER Remand Ex. A at 22; DER Remand Ex. 2; App. Remand Ex. 2 at 1-25, 2-7, 2-16, and 2-17). Since the above findings of fact are supported in the record by competent substantial evidence, I can not disturb these findings of fact. I therefore reject the above noted exceptions. The MSSW Permit and Reasonable Assurance As To Water Quality. Florida Audubon's Exceptions No. 1(C)-1(F), 8(G)(3), 9(A), 9(I)(1)-(3) and 30(D) in whole or part take exception to the Hearing Officer's findings of fact and conclusions of law that the applicant has provided reasonable assurance that the project will not cause violations of water quality standards. (F.O.F. Nos. 10-20; Conclusion of Law No. 42). 6/ The gist of these exceptions is that the Department erred in relying on the assumption that in issuing its Management and Storage of Surface Water ("MSSW") permit, the South Florida Water Management District ("SFWMD") properly determined that the surface water management system for the island development provided reasonable assurance that the system would not result in violations of state water quality standards. There is competent substantial evidence in the record supporting the Hearing Officer's finding that the Department did not independently evaluate whether the development's surface water management system provided reasonable assurance that it would not violate state water quality standards. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-13). It is therefore necessary to decide whether the Department properly relied on the MSSW permit for reasonable assurances that the surface water management system would not result in water quality violations, or whether the de novo hearing rendered the reliance moot in any event. Before the Department may issue a dredge and fill permit, it must determine that the applicant has provided reasonable assurances that the project, when considered with cumulative and secondary impacts, will not cause violations of water quality standards. Section 403.918(1), Florida Statutes. See also Conservancy v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991) and authorities cited therein. 7/ Where development is a secondary impact of a dredge and fill project, and the development will have a related surface water management system, the Department must also determine whether reasonable assurances have been provided that the surface water management system will not cause water quality violations. The first issue presented by this case is whether the Department may properly rely on a water management district's MSSW permit as the needed reasonable assurances, or whether the Department must "look behind" the water management district's MSSW permit and make a separate and independent evaluation of whether the necessary reasonable assurances have been provided. I note that in 1989 the Legislature enacted Ch. 89-279, Section 15, Laws of Florida, which created Section 373.418, Florida Statutes, providing in part that: It is the intent of the Legislature that stormwater management systems be regulated under this part [i.e., Part IV of Chapter 373] incorporating all of existing requirements contained in or adopted pursuant to Chapters 373 and 403. * * * (3) The department or governing boards may adopt such rules as are necessary to implement the provisions of this part. Such rules shall be consistent with state water policy and shall not allow harm to water resources or be contrary to the policy set forth in s. 373.016. The rules of SFWMD require that surface water management systems not cause violations of state water quality standards. Rule 40E-4.301(1)(c), Fla. Admin. Code. Also, State water policy requires that MSSW permits not cause violations of state water quality standards. Rule 17-40.420(3)(a), (b)1.a., Fla. Admin. Code. Although the Department is authorized to issue MSSW permits under section 373.418, it is the intent of Chapter 373 that Department powers be delegated to the water management districts to the greatest extent practicable. Section 373.016(3), Florida Statutes. The Legislature has ,thus established a scheme where strong preference is given to the regulation of surface water management systems by Water management districts through Chapter 373 MSSW permits. 8/ This scheme includes a mechanism in which the Department, the applicant, or a substantially affected person can petition the Land and Water Adjudicatory Commission for a determination of the validity of the permit. See Section 373.114, Florida Statutes. If the Department in the context of a Chapter 403 dredge and fill permit evaluation were to second guess and make an independent assessment of whether a surface water management system which had already received a water management district MSSW permit actually provided the necessary reasonable assurances, it could lead to a collateral attack on the validity of the MSSW permit and defeat the Legislative intent expressed in Sections 373.418 and 373.114, Florida Statutes. I therefore conclude that where an MSSW permit issuance by a water management district has become final, the Department may accept the MSSW permit as reasonable assurance that, as to the operation of the system within the scope of the dredge and fill permit, the surface water management system will not cause violations of state water quality standards. Of course, the Department will continue to make an independent determination of whether the remaining aspects of the project, taking into consideration cumulative and secondary impacts, provide the necessary reasonable assurances. I note that in this case the MSSW permit has not yet become final, as it is pending review before the Land and Water Adjudicatory Commission. 9/ A second issue raised is whether the de novo hearing rendered moot any question as to the propriety of the Department's reliance on the MSSW permit. I note that in the remand hearing in this case expert testimony was introduced to the effect that the development's management and storage of surface water system would not cause violations of state water quality standards. (App. Remand Ex. B, Prefiled Test. of Means at 6-12, 14-17.). Since this proceeding on remand is a de novo determination of the issues on remand, if there was any error by the Department in relying on the MSSW permit, it is moot because the Hearing Officer found that the necessary reasonable assurances were provided based on competent substantial evidence in the record. Since the Hearing Officer's finding that reasonable assurances have been provided is supported in the record by competent substantial evidence, I may not disturb it. Accordingly, the above noted exceptions are rejected. Reasonable Assurances As to Water Quality. Florida Audubon's Exceptions No. 1(C)-(F), 8(D)(2)-8(D)(3) , 8(E)(1), 8(F), 8(G)(1)-8(G)(3), 8(H) and 9(A)-9(K) in whole or in part take exception to the Hearing Officer's finding of fact that the Applicant has provided reasonable assurances that the proposed project, including the secondary impacts of the expected development, will not cause violations of water quality standards. (F.O.F. Nos. 10-20). Once again, Florida Audubon's exceptions do not assert the Hearing Officer's findings of fact are not supported in the record by competent substantial evidence, but essentially contend that the Hearing Officer did not give proper weight to what Florida Audubon contends is conflicting evidence. As I noted above, the standard which I must apply in ruling on exceptions to findings of fact is whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. Florida Dept. of Corrections; Heifetz; supra. If I find any competent substantial evidence in the record to support a finding of fact I must accept the finding of fact even if there are contrary facts in the record and even if I would have weighed the facts differently. Heifetz, supra. 10/ As noted in Part III(3) above, the Department did not independently evaluate whether the design of the project's surface water management system provided reasonable assurance that the system would not violate state water quality standards. Rather, the Department relied on the issuance of the MSSW permit by the South Florida Water Management District. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-713). Florida Audubon suggests that SFWMD did not in fact review the impact of the surface water management system on water quality, and that the Department's reliance on the MSSW permit precludes a finding that the Applicant has provided reasonable assurances that the project will not violate water quality standards. I disagree for the reasons stated in Part III(3) above. In particular, I note that the record on remand contains competent substantial evidence that the surface water management system will not result in violations of water quality standards. (App. Remand Ex. B, Prefiled Test. of Means at 6-12, 14-17). This proceeding on remand is a de novo determination of whether reasonable assurances have been provided that the project, taking into consideration the expected development of the island, will not result in violations of water quality standards. Therefore, regardless of whether the Department initially erred in relying on the MSSW permit, any error has been rendered moot by this de novo proceeding on remand in which the Applicant introduced competent substantial evidence that reasonable assurances have been provided that the stormwater management system will not cause violations of water quality standards. As to F.O.F. Nos. 11-20, the following summarizes the findings of fact and the competent substantial evidence in the record supporting them. In its review of the proposed development the Department identified several areas of potential adverse water quality impacts. Specifically, the Department investigated impacts from a potential marina expansion; the creation of all planned cart paths, proposed house pad construction, boardwalk and canoe launches, exempt docks, and beach renourishment. (F.O.F. No. 11: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 7-9, 11-25; DER Remand Ex. B, Prefiled Test. of Llewellyn at 5-13). The marina expansion, boardwalks, and canoe launches will impact existing jurisdictional mangroves, thereby affecting water quality. If later permitted, however, the Applicant can reasonably minimize such impacts and offset them in a suitable fashion. (F.O.F. No. 12: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2). 11/ The primary impacts from exempt docks are minimized by the development plan. The secondary potential impacts are negligible. (F.O.F. No. 13: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2). The cart paths will not be paved. Urban runoff from these surfaces will have an insignificant quantity of pollutants that are accounted for in the surface water management system design. (F.O.F. No. 14: App. Remand Ex. F, Prefiled Test. of McWilliams at 14; Applicant's Remand Ex. B, Prefiled Test. of Means at 6-12, 16; Applicant's Remand Ex. D, Prefiled Test. of Missimer at 11). The secondary impacts from the house pad construction and the urban runoff from associated impervious surfaces are minimal. Nevertheless, they are accounted for in the surface water management system design. (F.O.F. No. 15: Applicant's Remand Ex. 2 at 1-16, 5-2; App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 13-14). The agreements entered into between the Applicant, the City of Naples, and the Department of Natural Resources prohibit any additional shore hardening. The beach management plan includes periodic beach renourishment. (F.O.F. No. 16: DER Remand Ex. A, Prefiled Test. of Dentzau at 16; App. Remand Ex. 11; App. Remand Ex. E at 10, Prefiled Test. of Stephen at 10; Tr. at 368-369). A review of the surface water management plan presented at the remand hearing reveals that the potential for adverse secondary impacts is significantly limited due to the low density and minimal infrastructure for the proposed development. The 42 new homes will be spread over 430 acres. A series of swales, collection ponds and surface water treatment areas have been designed to minimize the impacts of development on the surface water. The use of fertilizer or pesticides by residents will be strictly limited. (F.O.F. No. 17: App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 12-19; App. Remand Ex. 6). The surface water management system meets the Department's water quality standards. (F.O.F. No. 18: App. Remand Ex. B, Prefiled Test. of Means at 6-14; App. Remand Ex. 6; Tr. at 185-89, 197-215). Potable water is already conveyed to the island from the city. Once the septic tanks are removed, the overall affect of the planned development on ground water will be negligible. (F.O.F. No. 19: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 16, 23-24). I conclude that the Hearing Officer's F.O.F. Nos. 10-20 are supported in the record by competent substantial evidence and therefore I will not disturb them. Accordingly, the above noted exceptions are rejected. Reasonable Assurances As to Public Interest Test. Florida Audubon's Exceptions No. 10(A)-10(O)(2) in whole or in part take exception to the Hearing Officer's findings of fact that reasonable assurances have been provided that the proposed project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest. (F.O.F. Nos. 21-34). As with the previous exceptions, Florida Audubon is essentially arguing that the Hearing Officer improperly weighed the evidence. My task is to determine whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. If they are, I may not reject them. The following summarizes F.O.F. Nos. 22-33 and the competent substantial evidence in the record supporting them. All new construction is required to meet flood protection standards even though the owners will not be eligible for flood insurance. Home construction standards take into consideration many of the effects of hurricanes. (F.O.F. No. 22: App. Remand Ex. 2: App. Remand Ex. F at 15). The hurricane evacuation plan has been approved by the city and Collier County emergency management authorities. (F.O.F. No. 23: App. Remand Ex. 2 at Ib, 1-29; App. Remand Ex. A at 17-21). Public funds are protected as the proposed development is not dependent upon federal, state or local funding or insurance. The city has passed an ordinance that requires property owners to acknowledge that the city has no liability for rebuilding any damaged infrastructure or improvements. The monetary risk associated with the development will be borne by the developer and the residents. (F.O.F. No. 24: App. Remand Ex. 2 at 1-3 to 1-8). The 42 single family homes will be located within the island's Coastal Barrier Resources Act (CBRA) unit boundaries. The evidence adduced at hearing indicated that the CBRA designation will not be jeopardized by the proposed development. (F.O.F. No. 25: Tr. at 106-7; App. Remand Ex. A at 21-33; App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. E at 16). The proposed development will have negligible secondary impacts on fish and wildlife. The project protects or enhances various fish and wildlife habitats. All wetlands will be preserved. The beach dune system will be improved through removal of exotics and dune restoration. As a result, the interdependence of the estuarine area on the coastal barrier resource will not be adversely affected by the project. (F.O.F. No. 26: DER Remand Ex. A at 15- 16; App. Remand Ex. E at 19; App. Remand Ex. F at 10, 13-14, 15-16; Tr. at 414, 825-26, 829-30). Gopher tortoises will be relocated to an upland preserve on the same island. The removal of exotic plants, the introduction of native herbaceous plants and control of the raccoon population should positively effect the gopher tortoise population. (F.O.F. No. 27: DER Remand Ex. 2; DER Remand Ex. A at 21- 22; App. Remand Ex. F at 15-16; Tr. at 855-60). Indirect lighting and the reduction of raccoons should benefit the atlantic loggerhead turtle population. (F.O.F. No. 28: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. 2). Threatened or endangered plant species on the site include golden leather fern, assorted orchids and bromeliads, golden polypody fern, shoestring fern and prickly pear cactus. Representatives of these species will be protected in preserve areas, according to conditions in the development plan approved by the city and conditions established in other permits. (F.O.F. No. 29: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. F at 16). The proposed project preserves all identified habitats which contribute to marine productivity. Low density development and other limitations already placed on the project were designed to minimize the adverse impacts on fishing and marine productivity. Recreational values will be enhanced by the project because of the proposed canoe launches and habitat restoration. (F.O.F. No. 30: App. Remand Ex. F at 16). The development is permanent in nature. Design limitations on the project, existing permit conditions and the low density aspect of the development combine to assure that the project has limited adverse impacts. (F.O.F. No. 31: App. Remand Ex. 2; App. Remand Ex. F at 17-18; Tr. at 872-73). There will be no adverse impacts on historical or archaeological resources. The Caloosa Indian Midden located on the property is to be preserved undisturbed. The Keewaydin Club Lodge is a designated structure on the National Historical Register and will be maintained as a historical building. (F.O.F. No. 32: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. A at 16-17). Except for the creation of 42 single home residencies for people willing to spend a million dollars for a home on an island with access only by boat or helicopter and all monetary risk for infrastructure and improvements damaged by any cause, the current condition of the island will not be changed significantly. All high quality resources and their functions have been preserved by project design. (F.O.F. No. 33: App. Remand Ex. F at 17-18; Tr. at 872-73). The above findings of fact which are supported in the record by competent substantial evidence support the Hearing Officer's F.O.F. No. 21 that the project will not adversely affect public health, safety or welfare or the property of others. Since the above noted findings of fact are supported in the record by competent substantial evidence, I shall not disturb them and the above noted exceptions are therefore rejected. However, as to the Hearing Officer's "finding" that the project is not contrary to the public interest, this is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991), rev. den. 583 So.2d 1035 (Fla. 1991). Although the factors found in the Hearing Officer's F.O.F. Nos. 26-30 help alleviate the adverse impacts of the project, when I balance the public interest criteria I conclude that the project would be contrary to the public interest without the mitigation offered by the preservation conservation easement to be placed over 2,270 acres. When I take the mitigation into consideration, I conclude that the project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest. Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA). Florida Audubon's Exceptions No. 1(G), 3(A)-3(C), 5(A), 8(D)(1), 8(E)(1), 9(A)(3), 9(B)-9(D), 10(E)(1) (3), 10(J) 10(N)(3), 17 (A)-17(D), 21, 22, 24 and 25 in whole or in part take exception to the Hearing Officer's finding of fact that the federal Coastal Barrier Resources Act (CBRA) designation of Keewaydin Island will not be jeopardized by the proposed development (F.O.F. No. 25) and to the Hearing Officer's conclusion of law that the development is not prevented by Governor Graham's Executive Order No. 81-105. (C.O.L. No. 43). My review of the record shows that competent substantial evidence was admitted supporting the fact that Keewaydin Island's Coastal Barrier Resource System ("CBRS") unit designation does not prohibit the development of Keewaydin Island. It just precludes federal funds to facilitate such development. Therefore, that development would not jeopardize the CBRS unit designation. (App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. A at 21-23; App. Remand Ex. E at 16; Tr. at 106-107) Accordingly, I shall not disturb this finding of fact. Although I note that Executive Order No. 81-105 may have some weight in the balancing of the public interest criteria under Section 403.918(2), Florida Statutes, I concur with the Hearing Officer's conclusion of law that Executive Order No. 81-105 does not per se preclude the development of coastal barrier islands where government funds will not be used to create the infrastructure that promotes development on the barrier island. In view of the above, the above noted exceptions are rejected. Exceptions Lacking Particularity. Florida Audubon Exceptions No. 6 and 7 lack sufficient particularity. Rule 17-103.200(1), Fla. Admin. Code, provides in part: Exceptions shall state with particularity the basis for asserting that the Hearing Officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation ... The reason for the above requirement is clear. It is impossible for the parties to respond, or for me to rule, when the basis for a purported error is not clearly stated. Exceptions No. 6 and 7 fail to state how the Hearing Officer has erred in a finding of fact, conclusion of law, or recommendation. Such exceptions do not comply with Rule 17-103.200(1), Fla. Admin. Code, and therefore must be rejected. For this reason, I reject these exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW The Hearing Officer's conclusions of law in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order as modified by the court's opinion in Conservancy v. A. Vernon Allen, Builder, supra. Scope of Remand. Florida Audubon's Exceptions No. 11-14 in whole or in part take exception to the Hearing Officer's Conclusions of Law No. 36-39. The gist of these exceptions is that the Hearing Officer misconstrued the scope of the remand and consequently lacked jurisdiction. There is no merit in the contention that the Hearing Officer lacked jurisdiction. Jurisdiction was conferred by the court's mandate that the matter be remanded to the Division of Administrative Hearings for further proceedings consistent with the court's opinion. See Conservancy v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991). Nor do I agree that the Hearing Officer misconstrued the scope of remand. The opinion of First District Court of Appeal stated: In the instant case, we disagree with appellee that the contemplated development of 75 estate homes is speculative and is not closely linked or causally related to the proposed dredging and filling. We perceive there to be little difference between the Department's aforestated need to "consider what will be at the end of the bridge or road," and the necessity here to consider what will be at the end of the pipeline, especially when the evidence, proffered or admitted, suggests that the development enabled by the dredge and fill permit could have devastating environmental impacts. Such evidence would be highly relevant to the Department's consideration of whether the applicant has carried its burden of giving reasonable assurances under section 403.918 that water quality standards will not be violated and the project is not contrary to the public interest. Thus, the Department's consideration of the proposed development solely in relation to the design of the pipeline system itself neglected the necessity in this case to consider potential secondary impacts. Consequently, it was error for the Hearing Officer to exclude the evidence proffered by appellants for the reasons set forth in her recommended order. Accordingly, this cause must be reversed and remanded for further proceedings and re-evaluation of the proffered evidence in a manner consistent with this opinion. 12/ Conservancy v. A. Vernon Allen Builder, 580 So.2d at 779 (quoting McCormick v. City of Jacksonville, (12 FALR 980, 981 (DER Final Order, Jan. 22, 1990); footnote omitted). I conclude that the Hearing Officer properly construed the scope of remand to require the consideration of "the secondary impacts associated with the development of Key Island, which the Court determined were closely linked and causally related to the proposed permit." (R.O.R., C.O.L. No. 37) I also note that this administrative proceeding on remand is a de novo determination of the issue of the secondary impacts, and that Florida Audubon has fully participated and submitted testimony and evidence on the issue of the secondary impacts. I therefore conclude that the administrative hearing fully complied with the scope of remand, and accordingly reject the above noted exceptions. Reasonable Assurances As To Water Quality. Exceptions No. 14, 15(A)-15(C), 16, 18, 24 and 30(D) in whole or part take exception to the Hearing Officer's conclusions of law that reasonable assurances have been provided that the project and its cumulative and secondary impacts will not cause violations of water quality standards. (C.O.L. Nos. 40, 41, 42). Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration cumulative and secondary impacts, provides reasonable assurance that water quality standards will not be violated. I therefore reject the above noted exceptions. Reasonable Assurances As To The Public Interest Test. Florida Audubon's Exceptions No. 15(A)-15(C), 16, 17, 18, and 21-24 take exception to the Hearing Officer's conclusions of law that reasonable assurance has been provided that the project together with its cumulative and secondary impacts are not contrary to the public interest. (C.O.L. No. 43) As I noted above, the determination of whether reasonable assurances have been provided as to the public interest test is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990). Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration the cumulative and secondary impacts and the offered mitigation of the preservation conservation easement over 2,270 acres, has provided reasonable assurance that the project is not contrary to the public interest. Therefore the above noted exceptions are rejected. Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA). Florida Audubon's Exceptions No. 17(A)-(D), 21, 22, 24 and 25 in whole or in part take exception to the Hearing Officer's conclusions of law that Executive Order No. 81-105 and the Federal Coastal Barrier Island Resource Act do not preclude the proposed development on Keewaydin Island. Based on the Hearing Officer's findings of fact which I have accepted, and for the reasons stated in Part III(6) above, I concur with the Hearing Officer's conclusions of law and reject the above noted exceptions. Evidentiary Issues Official Recognition of Hurricane Andrew and Amendment to Rule 28-21.003 Florida Audubon's Exceptions No. 25, 30(A)-30(C) do not take exception to any specific finding of fact or conclusion of law. Rule 17-103.200(1) requires rulings only to exceptions to findings of fact, conclusions of law or recommendations. Although lacking in specificity, these exceptions apparently assert that the Hearing Officer erred in an implied conclusion of law when she declined to take official recognition of (1) an amendment to Department of Natural Resources Rule 18-21.003 relating to leases or consent to uses of sovereign submerged lands incident to the development of undeveloped coastal barrier islands, and (2) the effects of Hurricane Andrew on Keewaydin Island. The Hearing Officer, relying on the authority of Collier Medical Center v. Department of Health and Rehabilitative Services, 462 So.2d 83, 86 (Fla. 1st DCA 1985), denied these motions on the ground that the evidentiary hearing had ended. I note that the decision to give official recognition, like judicial notice, lies in the discretion of the Hearing Officer. See ., Huff v. State, 495 So.2d 145, 151 (Fla. 1986)("It is upon the wisdom and discretion of the judges of our courts that the doctrine of judicial notice must rest."). Even assuming that the Hearing Officer's decision to deny official recognition is an implied conclusion of law to which an exception is appropriately made, I cannot say that I believe the Hearing Officer abused her discretion in declining to take the requested official recognition. Florida Audubon has suggested no competent substantial evidence in the record which would be a basis for determining whether the amended Rule 18-21.003 would be applicable to the proposed development on Keewaydin Island. Furthermore, even if the rule was applicable to Keewaydin Island, the effect of the rule would be relevant to the necessary permit, easement or consent to use from the Board of Trustees of the Internal Improvement Trust Fund. The Department's permit does not remove the applicant's need for a Board of Trustees permit over sovereign submerged lands. 13/ As to the request for official recognition of Hurricane Andrew, it cannot be said that it is generally known and not subject to dispute how Hurricane Andrew would have effected Keewaydin Island if the proposed project has been in place. Therefore official recognition of Hurricane Andrew is neither appropriate nor material for the purposes sought by Florida Audubon. Accordingly, I conclude that the Hearing Officer did not abuse her discretion in denying official recognition. I therefore reject the above noted exceptions. Official Recognition of Facts In the MSSW Permit Proceeding Before SFWMD. Florida Audubon's Exception No. 27, although lacking in specificity, appears to be taking exception to the Hearing Officer's implicit denial of taking official recognition of facts in the administrative proceedings of another case, i.e., the MSSW permit proceedings before the SFWMD. Apparently Florida Audubon is contending that the Hearing Officer erred in not taking official recognition of Florida Audubon's assertion that the SFWMD did not consider impacts on water quality when it issued the MSSW permit. As I noted in my discussion in Parts III(3) and III(4) above, the Department may properly rely on the issuance of an MSSW permit as reasonable assurance that the surface water management system will not cause violations of water quality standards. Regardless of whether the SFWMD properly considered water quality impacts when it issued the MSSW permit, in this case the issue is moot because a de novo proceeding was held where the record contains competent substantial evidence that the surface water management system provides reasonable assurance that the system will not cause violations of water quality standards. This exception is therefore rejected. Miscellaneous Exceptions. Exception 13 takes exception to the Hearing Officer's C.O.L. No. 38 describing the nature of the proffers made in the previous hearing. Since the hearing on remand was a de novo hearing on the issue of secondary impacts of the island development in which Florida Audubon presented all of its evidence related to the issue, I find no error that is relevant or material to this proceeding. Exception 13 is therefore rejected. Exception 14 takes exception to the Hearing Officer's C.O.L. No. 39 holding that the Department acted in good faith in its pre-hearing review of the information regarding the development. Once again, since the hearing was a de novo proceeding to establish the secondary impacts of the development I find no relevant or material error. Exception 14 is therefore rejected. Exceptions No. 19(A)-19(C) take exception to the Hearing Officer's C.O.L. No. 45, which concluded that the Department witnesses who disagreed with the proposed project did not apply the tests set forth in the statutes as did the Department witnesses who actually made the initial determination of whether the permit should issue. This exception also looses sight of the fact that this remand proceeding is a de novo determination of the facts. Florida Audubon presented witnesses who opposed the permit, and the Applicant presented witnesses and evidence in favor of the permit. The Department presented witnesses as to the Department's initial determination of the matter. I find no error and reject the exception. Exceptions 20(A) to 20(C) taking exception to the Hearing Officer's recommendations. These exceptions essentially are attacks on the Hearing Officer's findings of fact and conclusions of law as to reasonable assurances. The exceptions are denied for the same reasons stated in Parts III(3), (4) and (5) and IV(2) and (3). Exceptions 28 and 29 take exception to the Hearing Officer's acceptance of proposed findings of fact in the proposed recommended orders of the Applicant and the Department. These exceptions are redundant and are rejected for the same reasons stated in Parts III and IV(1)-(5) above.
Recommendation Based upon the foregoing, it is RECOMMENDED: That a Final Order be entered approving Respondent Builders' dredge and fill permit in DER File No. 111486645 filed August 31, 1988, subject to the following modifications: Specific condition number 6 should be amended to read: 6. Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the weeks of July 1st through September 30th of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX TO RECOMMENDED ORDER Rulings on the proposed findings of fact filed by Petitioners are addressed as follows: Accept that John Remington holds the option on the property. See HO #1. Reject the rest of paragraph 1 as contrary to fact. See HO #6. Accept the description of the project locale. See HO #7. The rest is rejected as irrelevant. Outside scope of hearing. Accepted. See HO #7. Accepted. See HO #7. Rejected. Irrelevant. Outside scope of hearing. Rejected. Irrelevant. Outside scope of hearing. Rejected. Irrelevant. Outside scope of hearing. Accepted. Accepted. Rejected. Argumentative. Rejected. Improper summary. Irrelevant. Accepted. See Ho #2. Accepted. See Preliminary Matters. Rejected. Improper summary. Rejected. Immaterial. Accepted. Rejejcted. Improper summary. Accepted. Rejected. Immaterial. Rejected. Legal argument. Rejected. Beyond the reasonable assurances standards. Accepted as a reasonable possibility. See HO #11. Accept the first sentence. See HO #11. The rest is rejected as argumentative. Accept as a fact summary. The assumption portion is rejected as argumentative. Rejected. Premature analysis of future sewer treatment plant permit. Accept first sentence. The rest is rejected as argumentative and beyond scope of hearing. Accepted. Accepted to the point that such information could be known, based upon the methods used to form the opinion. Rejected. Argumentative. Respondent Builders' proposed findings of fact are addressed as follows: Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #2. Accepted. Accepted. See HO #7. Accepted. See HO #10. Accepted. See HO #7 and #9. Accepted. See HO #11. Accepted. See HO #8. Accepted. See HO #21. Rejected, except that there is no evidence of scour activity. There was insufficient evidence for the conclusion that the pass is very stable. Accepted. See HO #7. Accepted. See HO #4. Accepted. See HO #13. Accepted. See HO #21. Accepted. Rejected. Premature in this proceeding. Accepted. See HO #16 and #17. Accepted that reasonable assurances provided. See HO #11 and #16. Accepted. See HO #33. Accepted. See HO #13 through #16. Accepted. See HO #16 and #17. Accepted. Rejected. Repetitive. Accepted. See HO #31. Accepted. See HO #18. Rejected. Contrary to fact. See HO #21 and #29. Accepted. See HO #23-#25. Rejected. Contrary to fact. See HO #21, #22 and #29. Accepted. See HO #30. Accepted. Accepted. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #4 and HO #7. Accepted. See HO #5. Rejected. Contrary to fact. See HO #4. Accepted. See HO #4. Accepted. See HO #15. Accepted. See HO #16. Rejected. Contrary to fact. See HO #8. Accepted. Rejected. Conclusionary. See HO #21 and #29. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #23. Accepted. Rejected. Contrary to fact. See HO #22. Accepted. See HO #22. Accepted. See HO #16. Accepted. Accepted. Accepted. See HO #13. Rejected. Speculative. Accepted. See HO #16. Accepted. Rejected. Speculative. Accepted. See HO #17. Accepted. See HO #5. Accepted. See HO #6. Rejected. Outside of scope of hearing. COPIES FURNISHED: Joseph Z. Fleming, Esquire 620 Ingraham Building 25 Southeast Second Avenue Miami, Florida 33131 Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire MESSER VICKERS CAPARELLO FRENCH AND MADSEN Suite 301 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact Mr. Savino owns a parcel of land at the intersection of two mosquito control canals in Flagler County, Florida. The portion which he desires to fill is no higher than 0.5 feet above mean high water. It is flooded by the canals several times a year. In his original application to fill Mr. Savino said that he wanted to make his land suitable for the construction of two residential houses. Later, in response to a Department request for further information, he changed his plans for the filled area. He now intends it to be only the backyard of his residence. Prior to the time of the pending application, Mr. Savino had filled some of the same area involved here. Because he had no permit, an enforcement action was begun by the United States Corps of Engineers. As a result of that action part of the original fill was removed. The remainder of the fill is still in place and is within the scope of the pending application on an after- the-fact basis. 1/ The area projected to be filled is 6,000 square feet along the edge of the mosquito control canals. The fill would consist of 450 cubic yards of clay- type soil to be stabilized by planting Bahia or St. Augustine grass on it. This filling would raise the land level to an elevation of three feet along the immediate edge of the canals and two feet over the rest of the filled area. The fill would be placed in a band beginning five feet back from the water's edge and extending 50 feet landward. The project site is near Smith Creek and the Intercoastal Waterway. These are state waters into which the mosquito control canals flow directly. The surrounding area of the site consists of tidal lagoons, bayous and spoil islands which were created by the construction of the Intercoastal Waterway. The immediate fill site is covered by salt-tolerant vegetation which consists of salt grass (Distichlis spicata, marshhay cordgrass (Spartina patens), sea purslane (Sesuvium portulacastrum), marsh elder (Iva frutescens), saltwort (Batis maritima), glasswort (Salicornia virginica), and groundsel (Baccharis halimifolia). The foregoing species are the dominant plant community there. This vegetation is part of the Smith Creek salt marsh system which provides several benefits in terms of water quality. The transitional marshlands provide water filtration and nutrient uptake for runoff from the adjacent uplands. During periods of inundation they also provide both habitat and forage area for juvenile estuarine fish. Mr. Savino proposes to stabilize the fill by planting St. Augustine or Bahia grass. No showing was made, however, that the grass will grow on the fill which is on land periodically inundated by salt water. It is probable that there will be runoff from the fill into the mosquito control canals which will then convey suspended solids and man induced nutrients into Smith Creek and the Intercoastal waterway. Mr. Savino has not provided for a plan which will reasonably prevent that runoff. The receiving waters of Smith Creek and the Intercoastal Waterway are Class III waters. On April 1, 1980, the Department responded to Mr. Savino's fill application by issuing a notice of intent to deny it on the grounds that valuable transitional marshland would be destroyed and a degradation of local water quality would be expected. In reaching its conclusion the Department relied in part on Petitioner's earlier intention to build two residences on the filled site. He has not deleted that part of his plan. That deletion does not, however, remove the major objections by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application for Mr. Savino to fill in a transitional zone of state waters. 2/ DONE AND ENTERED this 22nd day of January 1981 in Tallahassee, Leon County, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1981.
Findings Of Fact Grace L. Waldron owns the property in Osceola County where the proposed project is located. Carl Wagner leases a portion of the property and operates a fish camp/bait and tackle shop on the property. On August 22, 1986, the Petitioners submitted an application, designated DER File No. 49-124177-4, to dredge an access canal which would connect an existing elongated borrow pit with Lake Cypress, and to construct two commercial piers, 300 feet long by 4 feet wide, with sixty finger piers, 12 feet long by 2 feet wide. The borrow pit, also called the "existing canal" is approximately 50 feet wide by 800 feet long. The dredging would create a dead end finger canal approximately 1160 feet in length. Approximately 5,800 cubic yards of muck, hard pan and clay would be dredged to create the canal and channel into the waters of the lake.. Lake Cypress is located in the Kissimmee "chain of lakes" a series of lakes connected by man-made canals or by the Kissimmee River. The system is a popular fishing and recreational area. It also has been adversely affected by intense development and volumes of effluent flowing into the lakes. Cypress Lake has very poor water quality. Chlorophyll a consistently runs around 90-160 milligrams per liter (mg/1). DER has a policy of allowing no wasteload allocation if chlorophyll a is greater than 60 mg/1. Biochemical Oxygen Demand (BOD) is also extremely high. A BOD level of 2-3 mg/1 is deemed acceptable. Samples taken by Petitioner's consultants in December 1986, reflected a BOD level of 9.8 mg/l in the lake and 27 mg/1 in the borrow pit. Some violations, though not as serious, were found in the Dissolved Oxygen (DO) standard of 5 mg/1. The creation of a finger canal will create a more serious water quality problem than currently exists. This is evidenced by experiences with such canals throughout the state. Dead-end canals prohibit effective exchange of water and after a period of build-up within the basin, a winter storm event or unusually heavy summer thunder-shower will create a sloshing effect, the toxic plug will be released and the polluted water will flush into the lake, creating a potential fish kill. After a period of buildup, boaters are reluctant to use dead-end finger canals as it is impossible to keep the boats clean. The proposed channel dredging would eliminate approximately 0.25 acres of densely vegetated littoral zone habitat. Such zones provide spawning, nursery and feeding habitat for a wide variety of fish species. Lesser concerns, but nonetheless negative impacts from the project, are a short term increase in turbidity from the dredging of the channel, and the effect on endangered or threatened species of birds found on or near the site. The U.S. Department of the Interior, Fish and Wildlife Service and the U.S. Environmental Protection Agency have commented negatively on the proposed project. These agencies have cited the same concerns with water quality, effect on the littoral zone and effect on wildlife described above, and explained in depth in the testimony of DER's expert witnesses. The Florida Game and Fresh Water Fish Commission, also commenting on the project, has a policy of encouraging development and use of public access facilities and discouraging all private channel construction. On Lake Cypress there exists a public boat ramp and launching facility approximately 300 feet to the north of the proposed project. Other access to the lake is provided through facilities on other lakes in the chain, although these facilities are a considerable driving distance from the proposed site. The public boat ramp on Lake Cypress does not have lights nor restrooms. Parking is limited and Waldron provides parking for boaters at his commercial establishment for $7.00 a year. Carl Wagner presented six pages of signatures obtained from his posting a "Petition" in support of the project at his bait and tackle shop. The Petition cites deficiencies in the existing public facility. Carl Wagner has lived and worked on the Kissimmee chain of lakes for 37 years. He worked for the South Central Florida Flood Control District maintaining pumps and locks for eleven years, and has fished and served as a fishing guide for the remainder. He has an intimate familiarity with the wildlife, fish species, drift and flow of the lakes and weather patterns in the area. His knowledge is valid, though not so technical as that of the various agency experts. His position is that he is just trying to make a living, that if the public ramp and facilities were adequate, he could make a living with a tackle shop, but the public access is not adequate. He concedes that the water quality is bad, but argues that the impact of his project would be so minimal as to be a mere "drop in the bucket". While the applicant has not suggested alternatives, the Department has suggested that a boardwalk could be constructed with a dock extending into the lake, with finger piers. This would avoid the need to dredge a canal and channel, but the environmental impact of the pilings and any navigational hazards have not been fully studied. The applicant has not Suggested mitigation measures to improve water quality, nor is it likely that such measures would be effective.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying permit application number 49-1241774. DONE and RECOMMENDED this 19th day of August, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Grace L. Waldron Post Office Box 1341 St. Cloud, Florida 32769 Carl W. Wagner Post Office Box 975 KenanSville, Florida 32739 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
