The Issue The issues to be resolved in this proceeding concern whether the Respondent Gate Petroleum Company (Gate) has provided reasonable assurances that Water Quality Standards will not be violated by the proposed modification of Gate's dredge and fill permit No. 160462149 and whether Gate has provided reasonable assurances that the proposed modification of that permit will not be contrary to the public interest, nor be the occasion of adverse cumulative impacts to water quality or public interest considerations so as to make this project contrary to the public interest.
Findings Of Fact The Respondent Gate Petroleum Company, by and through its wholly-owned subsidiary, Gate Maritime Properties, Inc., proposes to construct a ship- berthing facility for two ships adjacent to Blount Island Channel, along the southeastern portion of Blount Island, in the St. Johns River, in Duval County, Florida. The proposed facility would provide for the berthing of two ships of the United States Navy Military Sea-Lift Command in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed facility would be located along the southeasterly portion of "Cut A" of the Blount Island Channel and will consist of a "T-head Pier", a breasting dolphin and cat walk and two mooring dolphins. The pier would be connected to the land by an approach trestle. The facility involved will be constructed by the insertion of concrete pilings into the bottom of the Blount Island Channel and in the adjacent upland, which would support concrete decks and caps. Removal of dredged material will be necessary to accomplish the project and will be performed by a floating hydraulic dredge with associated "Cutter Head." The resulting dredged material would be disposed of in a diked spoil area on either Blount Island or at the Dayson Spoil Site adjacent to the mouth of Clapboard Creek. The Respondent Gate currently holds a DER dredge and fill permit, No. 160462149, authorizing the removal of approximately 3.4 million cubic yards of dredged spoil and the installation of an associated 5,000 feet of shoreline bulkhead. The proposed installation of the pier and mooring facilities would result in a modification of that permit so that approximately 1,000 feet of shoreline bulkhead and most of the related dredging will be unnecessary and not performed. Instead, approximately 7,100 cubic yards of dredging would be necessary, without the necessity for bulkheading. The remaining shoreline bulkhead and dredging authorized under the above permit would be rendered unnecessary and replaced by the addition of two additional T-head piers and associated dredging at some indefinite time in the future. The additional piers and dredging are not involved in this permit modification application and are not before the Hearing Officer at this time. The Blount Island Channel of the St. Johns River, the St. Johns River and Clapboard Creek are classified as Class III surface waters of the state pursuant to Sections 17-3.081 and 17-3.121, Florida Administrative Code. It has been established by stipulation of the parties that the proposed modification of the dredge and fill permit will not adversely affect navigation nor the flow of water in the Class III state waters involved. It is also stipulated that the proposed modification will not adversely affect historical and archaeological resources pursuant to Section 267.061, Florida Statutes. It is stipulated as well that the discharge of effluent from the Dayson spoil site will not violate water quality standards at the point of discharge in the Fulton-Dames Point Cut. On March 22, 1989, the Florida Department of Environmental Regulation issued its intent to approve the proposed permit modification so as to allow the elimination of the previous requirement in the permit to monitor for copper at the site of the effluent discharge; the relocation of the Blount Island spoil site effluent discharge and the construction of a T-head pier on the southeast side of Blount Island adjacent to the Blount Island Channel. The Department did not initially grant the request to relocate the Dayson spoil site effluent discharge from the Corps of Engineer Channel (Dames Point Cut) to the mouth of Clapboard Creek. On January 31, 1986, Gate was issued permit No. 160462149, pursuant to Chapters 403 and 253, Florida Statutes, with an expiration date of January 31, 1991. It authorizes the dredging and filling on and adjacent to Blount Island referenced above. The permit authorizes those operations in two phases, consisting of new dredging of approximately 300,000 cubic yards in the existing slipway and test area to obtain a project depth of 40.2 feet mean low water. Maintenance dredging was authorized in the amount of approximately 1,850,000 cubic yards in the slipway to maintain the above-noted project depth. New dredging of no more than 3 million cubic yards from the northeastern and southern margins of Blount Island to a depth of 38 feet mean low water (MLW) and 20 feet MLW on the northeastern and southern portions of Blount Island respectively, with attendant maintenance dredging, was authorized. The permit also allowed he construction of shoreline bulkheads along the eastern and southern margins of Blount Island. That 1986 permit also required disposal of dredged material from both phases of the project into diked areas on Blount Island and the existing diked off-site disposal area known as the Dayson Site, near the mouth of Clapboard Creek. Effluent from both sites was to be discharged to the Fulton-Dames Point Cut. Effluent from the Dayson site was to be discharged to the Fulton-Dames Point Cut or routed by pipeline to the Blount Island disposal site for additional treatment prior to discharge. All dredging under the 1986 permit was to be done via a suction, cutter-head dredge apparatus, with the speed of the cutter-head to be controlled so as to prevent excessive turbidity; and with all dredged material to be placed in diked areas, with the effluent discharge being conducted over adjustable weirs. The dredging of the approximately 7,100 cubic yards of material associated with the modification application at issue will be performed with the same type of equipment. Both spoil disposal sites have sufficient capacity for disposal of the material involved with the construction of the T-head pier. The effluent or "de-watering water" generated from the disposal of the dredged material at the Dayson on site will be discharged through a pipe under the St. Johns River to a point near the confluence of the Dames Point Cut and the Old River Channel. That material will consist of approximately 10 percent dredged solid material and 90 percent water. The Dayson disposal site is surrounded by dikes 24 feet high and 120 feet wide at their base. They are so constructed that there will be no discharge of effluent from the Dayson disposal site to Clapboard Creek. Since 1974, over four and one-half million cubic yards of material have been disposed of at the Days on site without any violation of state water quality standards in the creek or the adjacent salt marsh. The entire 7,100 cubic yards of dredged material, together with related water could be placed in the Dayson disposal site without causing any discharge. Gate Maritime Properties, Inc. has a five-year lease agreement with Leadermar, Inc. which will operate the T-head pier as a berthing facility for the two ships. The lease was scheduled to commence July 22, 1989. Under the terms of the contract awarded by the Navy to Leadermar, Inc., Gate, or its lessee, is required to maintain a 110 foot, safe working area surrounding the vessels for operation of tugs, lighterage vessels and fendering operations. The contract with the Navy does not require, however, that the safe working area be maintained at a depth of minus 32 feet "mean lower low water" as shown by Gate Exhibit 6 in evidence. 1/ Given the findings made infra., concerning the lack of adverse water quality or public interest impacts caused by the dredging, and the paucity of any attendant suspension of bottom materials in the operation of the ships to be berthed at the proposed facility, the issue of whether the contract with the Navy requires a depth of minus 32 feet "mean low water" or "mean low low water", a reputed difference of 1.03 inches according to the rebuttal exhibit of Respondent Gate, neither Gate's position nor the Navy's reputed position regarding this apparent contractual dispute item, if carried out, would have any adverse water quality or public interest impact in the context referenced in these findings of fact and conclusions of law. The fact remains that Gate has applied for authority to recede from the massive dredging project presently authorized in the existing permit, to stipulate by this modification application that it only seeks to dredge 7,100 cubic yards of material in the area involved. Based upon the depth established by the marine survey conducted by Bennett, Wattels and Associates, there will be an adequate safe working area for tug boats, fuel barges and lighterage vessels, as well as the ships themselves, for operations involving the berthing facilities. See Gate Exhibit 5 in evidence. If the requested modification is granted, Gate will not dredge more than 7,100 cubic yards of material for construction of the pier and related facilities and in order to provide a safe working area as required under Leadermars contract with the Navy. Indeed the amount of material to be dredged for the construction and operation of the T-head pier was based upon the above- referenced Marine survey, unrefuted evidence in this record. The volume of material was calculated by using the Marine Survey depths and the "average end area method," a widely accepted method of such calculation in the marine engineering and construction field. Further, Gate adduced the only substantial evidence in this record concerning the issue of the amount of dredging involved or the extent of the dredged area, as that relates to the "safe working area" and other issues. Water Quality Gates' consulting experts performed various chemical and sediment analyses in the project area in order to establish a general composition of bottom sediments and to establish the likelihood of suspension of any toxic substances or pollutants in those sediments as a result of the dredging operation or the operation of the ships and berthing facilities. Those analyses, and their results, in evidence in this record, were unrefuted. The bottom sediments in the vicinity of the project area are predominantly fine sand with small fractions of silt. In general, the dredged material is most likely to be free from chemical or biological pollutants where it is composed of sand, gravel or other naturally occurring inert materials, as opposed to large percentages of organic materials, which were not shown to exist in the vicinity of the project site. Based upon the characteristics of the bottom sediments in the project area, there will be no re-entrainment of toxins or pollutants which night presently be sequestered in the sediments due to construction, dredging operations or the operations of the berthing facility and ships involved. An elutriate test was performed to predict the effect on water quality from temporary suspension of the bottom sediments during the dredging operation itself. Elutriate testing is a widely recognized, conservative estimate of contaminant releases, caused by dredging, into a water column. The parameters tested for are those specified in the Department's rules for Class III waters and include cyanide, mercury, silver cadmium, selenium, barium, beryllium, nitrogen, (unionized NH3, NO2, total TKN), fluoride, copper, iron, nickel, zinc, aluminum, pesticides, herbicides and PCBs (polychlorinated biphenyls). The elutriate test results did not reveal any excess ion of any of these parameters in terms of the state water quality standards or as to prevailing natural background levels. There are no PCBs, hydrocarbons, heavy metals or pesticides shown to be sequestered in the bottom sediments of the Blount Island Channel in the vicinity of the proposed project. The chemical analyses was performed on composite elutriate samples of sediments which came from the area of the T- head pier location and the area north of the pier, where the propellers of the ships will be located and operated during test trials, after the ships are berthed at the site. Site specific chemical analyses and core borings were taken and compared with historical data or studies for these sites and found to be consistent with them. There is no likelihood of sequestered contaminants in the bottom sediments which would be released, with deleterious effect on water quality, as a result of the action of the dredge equipment or the operation of the ships after the facility is installed. Cutter-head, hydraulic pipeline dredges are not significant generators of turbidity. They are an efficient means of performing dredging and are designed to loosen and remove material from the bottom substrate, without disturbing or redistributing the dredged material around the dredge apparatus in the water column. The use of the hydraulic pipeline dredge will result in minimal water quality disturbance and any dredge-induced turbidity will be of a transitory, short-term nature. It would be localized in the immediate vicinity of the dredge's cutterhead in any event. Ambient water quality conditions can be expected to return to normal background levels in a matter of hours following cessation of the dredging activity. It is estimated by Gate's consultant witnesses that the dredging activity might be accomplished in approximately one day. It has thus been established that the relevant stage water quality standards will not be violated by the action of the dredging equipment and the dredging operation itself. Water Quality Impacts of Facility Operation The two ships of the military sealift command which are to be berthed at the proposed T-head pier are 948 feet in length and approximately 105 feet in beam. They are equipped with two main engines and two propellers. The propellers are 22 feet, 11 and 9/16 inches in diameter. The ships will be in what is known as "reserved operating status". The ships will go through a dry- docking procedure at a local shipyard approximately every two years for major overhauls, repairs and painting. Such maintenance work will not be performed at the project site. The ships will, however, undergo periodic "dock trials" while berthed at the facility. The dock trials will be conducted on a quarterly basis if the vessels have not been out on a mission in that quarter of the year. The dock trial procedure calls for the main propulsion powerplants of the ships to be put into operation and evaluated. Both main engines are tested under this procedure for approximately one hour, at ten revolutions per minute (rpm) ahead and astern. The tests are to be conducted by civilian personnel retained by the Navy or its contractor, with all appropriate safety precaution being taken. These include, but are not limited to, the manning of the bridge during tests by a master or chief mate and by rotating one engine ahead simultaneously with the other engine being rotated astern. The ships are also equipped with onboard, internal sewage treatment plants so as to prevent the discharge of pollutants to state waters. Only routine maintenance or repair work will be performed on the ships at the lay birth facility. The ships will be refueled at the facility from time to time with "bunker c" or diesel fuel brought in by barges. The barges will be conveyed by tugboats of no more than 16 feet draft. The fueling operation will be governed by the U.S. Coast Guard regulations and are performed by Coast Guard certified and licensed personnel. Dr. Neal Boehnke was accepted as an expert in the field of chemical analysis of water and testified on behalf of the Petitioner. In his opinion, water quality in the facility of the proposed project is poor and may contain elevated hydrocarbon levels. His opinions, however, are based upon 1982 and 1983 reports of sampling results allegedly obtained by the City of Jacksonville Bioenvironmental Services Division and the DER, as well as the study entitled "Survey of Hydrocarbons and the Lower St. Johns River in Jacksonville." These documents were not introduced into evidence. While it is true that an expert may base his opinion on facts and data made known to him in the normal course of his practice at or before trial and that those facts or data may be relied upon by him in formulating his opinions, it must be demonstrated that those facts and data are "of a type reasonably relied upon by experts in the subject to support the opinions expressed." See Section 90.704, Florida Statutes. In this proceeding, it was not established by competent evidence or testimony at hearing that the facts or data derived from these documents were of such a type as to be encompassed by this statutory section and thus they cannot serve as a legitimate basis for Dr. Boehnke's opinion. They otherwise constitute inadmissible hearsay, not sufficient to support a finding of fact on the water quality impacts from the proposed project and they do not constitute corroborative or explanatory hearsay related to any accepted, competent, substantial evidence in this record for purposes of the hearsay admissibility provision in Section 120.58, Florida Statutes. Therefore, Dr. Loehnke's opinion concerning alleged elevated levels of hydrocarbons in the water at the project site is not credited and is rejected. Dr. Allan Niedororda was accepted as an expert in the fields of oceanography, hydrology and hydrologic assessment. He conducted a study on the potential impact to water quality in the Blount Island Channel which might result from the dock trials to be carried out as a part of the routine maintenance and testing of the ships. His study evaluated the degree to which the propeller wash from the dock trials might entrain and transport bottom sediments, any related pollutants and the effect of this entrainment on water quality in the surrounding water column. His study consisted of field sampling and measurements of currents in the area, laboratory analysis and related data analysis. Bottom sediment samples from the project area were analyzed for particle size and grain size distribution according to standard, scientifically accepted procedures. The bottom sediments in the area of the project site are characterized by a sandy sediment of a fine to medium particle size characteristic. The bottom sediments largely consist of clean sand and small gravels, with some silt composition. The propeller wash which will be generated by the testing of the ships engines was computed to have a speed of approximately one half foot per second. Maximum speed will occur about three propeller diameters behind the plane of the propeller itself or about 72 feet behind the propellers. The bottom tip of the propeller with which the ships are equipped will be six feet off the bottom of the channel at low tide. At the point the propeller wash contacts the bottom, its speed will be approximately two tenths of a foot per second. Such a velocity will not be of sufficient force to produce such sheer stress on the bottom sediments as to entrain them or, that is, to displace them upward into the water column. Dr. Niedororda established that, even if the propeller wash is added to the natural velocity of the water currents at the project site, there would be no entrainment of the bottom sediments which he sampled in the project area. It has also been established that the routine, minor maintenance of the ships and dockage facilities involved in the permit application and the fueling and other operations associated with the berthing, testing, entry and egress of the ships from the proposed berthing facility will occasion no water quality violations, so long as appropriate Coast Guard regulations attendant to fueling and the prevention of the deposition of refuse and other wastes into the waters involved are observed. Any grant of the proposed permit modifications should be conditioned upon the strict observance of those regulations and procedures, especially with regard to the potential for spillage during fueling operations. Public Interest Standards Section 403.918(2), Florida Statutes provides that a permit may not be issued unless the applicant provides the department with reasonable assurances that the project is not contrary to the public interest. In determining whether this is the case, the Department must consider and balance the following criteria: Whether the project will adversely affect the public health safety or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; The current condition and relative value of functions being performed by areas affected by the proposed activity. It has been established by stipulation that the project will not adversely affect navigation or the flow of water and that the project will not adversely affect significant historical or archaeological resources. Unrefuted evidence adduced by Gate and the Department have established that the project will not adversely affect the public, health, safety, welfare or the property of others, if the project is constructed, installed and operated as proposed in the modification application and as proved in this case. The conservation of fish and wildlife, including endangered or threatened species, or their habitats, as well as fishing and recreational values and marine productivity in the project area will not be adversely affected. No harmful erosion or shoaling will be caused by the installation or operation of the project facility. In this connection, Dr. A. Quinton White, a member of the Board of Directors of the Petitioner, C.E.S., acknowledged in his testimony that the Manatee Protection Plan and Manatee Watch Program proposed to be inaugurated by Gate will adequately protect any Manatees frequenting the area. Manatees are an endangered species, but it has been established that the permit modification proposed, if installed and operated, will not adversely affect the conservation of Manatees or their habitat. The Petitioner adduced no evidence on this issue or any of the public interest criteria enumerated above. The area at the project site is characterized by fairly firm consolidated bottom substrata, characterized by very few submerged grasses. Due to the sandy, hard bottom in the project vicinity, there is a paucity of marine grass upon which Manatee could feed. Consequently, Manatees do not and are not likely to frequent the area involved at the project site as that might reflect on the likelihood of their injury or destruction due to operation of the ships and any attendant vessels. Dr. Niedoroda established that the project and the attendant operations of the ships will not cause harmful erosion or shoaling and witness Gary Tourtellotte, testifying for Gate, established that the effects of the construction and operation of the T-head pier on the benthic community and marine productivity in the vicinity of the project will not induce any adverse effect on those elements of the public interest standards involved. The Petitioner offered no credible or credited evidence of equivalent value which could contradict the evidence adduced by Gate on this aspect of the public interest standards. It is true that dredging of the bottom substrata will temporarily eliminate the benthic community within the dredged area itself. It was established by expert testimony, however, that the benthic community will rapidly re-colonize itself with similar organisms to a naturally occurring degree within approximately 6-12 months. The benthic community in the project vicinity is of a low density nature, with a low diversity of organisms. Those organisms occurring in the project site area are estuarine, marine benthic species commonly associated with sandy or silty bottom substrates. Because the area to be dredged is quite small or approximately .25 acres, and the dredging operations will be of short duration, approximately one day, the dredging operations will not have a significant adverse effect on the benthic communities occurring in the project area or in the adjacent St. Johns River. The dredging associated with the project will likewise not have a significant long-term adverse impact on fisheries resources or marine productivity of the Blount Island Channel or the St. Johns River. This is because the area to be dredged is minimal in size and does not contain critical marine benthic habitat. The turbidity generated will be minimal because the sediments are predominantly coarse sands and gravels. Because of this, any turbidity occasioned by the installation and operation of the proposed facility will be very brief and not of a sufficient significance as to violate water quality standards. In view of the hydrologic analysis in evidence concerning propeller wash effects, the bottom sediments at the ship mooring area will not be entrained or suspended in the water column to any significant degree due to propeller operation of the ships. Thus the benthic community in the mooring area for the ships will not be disturbed due to currents created by the operation of the propellers. In a similar vein, it has been shown that the dredging and operation of the T-head pier and mooring facilities, including the attendant conduct of periodic dock trials and the entry and egress of the ships will not violate the water quality criteria for biological integrity. Indeed, the periodic dock trials are shown to have no impact on the benthic community, the fisheries or marine habitat involved at the project site. It was neither shown that the dredging associated with the construction of the pier and berthing facilities will have any adverse impact on fin fish or shellfish in the project area. It has been established that the project will be of a permanent nature, but it has not been established that the current condition and relative value of the functions being performed by the areas affected by the proposed activity in terms of their functions as productive marine habitat, as furnishing fishing or recreational values and the like, will be adversely affected by the proposed project and attendant activity. Deletion of Copper Monitoring Requirement The 1986 permit authorizing the removal of approximately 3.4 million yards of dredged material with attendant extensive bulkheading in the Blount Island Channel requires also that Gate Monitor for copper every two weeks during discharges at the downstream boundary of the mixing zone for each point of a effluent discharge. Effluent from both the Blount Island and Dayson Disposal Sites is discharged into the Fulton Dames Point Cut. The Petitioner has stipulated that the discharge of effluent from the Dayson Spoils Site will not violate any water quality standard at that discharge point. Elutriate testing and other analyses submitted in support of the permit modification request to delete the copper monitoring requirement in the present permit have shown that there will be no violation of water quality standards as to copper, or any of the other water quality parameters involved due to any re-suspenions of bottom sediment during dredging. There will be no violation of water quality standards for copper, caused by the deposition of spoil, consisting of those bottom sediments, and the draining of effluent from the spoils site into the Dames Point Cut. The Department has independently verified the data submitted by Gate as a result of this testing and it has been established that there is no occurrence of any man induced pollutants in the sediments at the project site which will be deposited in the spoil site, (from which the effluent will be disposed of in the Dames Point Cut) which represents any elevation over natural background levels. The sediments to be dredged from the berthing area are not distinguishable from naturally occurring sediments and the copper values in the sediments to be dredged are no higher than those naturally occurring throughout the area. Thus there will be no adverse impact on the water quality occasioned by discharge of the effluent from the spoil site to the Dames Point Cut area due to copper occurring in the sediments or as to any of the other pollutants enumerated above. Thus, there has been no demonstrated necessity to continue monitoring the effluent from the spoil site for copper. In this regard, the Petitioner presented no evidence at hearing concerning the issue of whether copper monitoring should be continued or not. Cumulative Impact Blount Island was created in the 1950's and 1960's by the filling of its area with spoil material during the U.S. Army Corps. of Engineers' construction of the Fulton-Dames Point Cut-Off Channel. Since that time, port facilities and an industrial complex have been constructed on Blount Island. It is one of the principle port facilities for the City of Jacksonville. Under the 1982 DER dredge and fill permit issued to Off-Shore Power Systems, and later transferred to Gate in 1986, the developed area of the island adjacent to the original St. Johns River Channel (the Blount Island Channel) was required to be bulk-headed and the channel dredged to -38 feet MLW. The amount of material to be dredged in the old channel of the St. Johns River for construction of the vertical shoreline bulk head totalled approximately 3.4 cubic yards. The T-head pier involved in this modification proceeding, if constructed, would replace 1,000 linear feet of that shoreline bulkhead authorized by the present permit and would substantially reduce the amount or quantity of material to be dredged. Construction of the T-head pier, instead of the permitted shoreline bulkhead, will minimize dredging and the environmental impact of the facility. Gate has elected to rescind its plans to construct the shoreline bulkhead along the eastern shore of Blount Island, as authorized under the existing dredge and fill permit. Gate instead intends to seek future modification of its existing dredge and fill permit to substitute at least 2 additional T-head piers for all of the shoreline bulk head authorized for the eastern shore of Blount Island. The construction of the additional T-head piers will require substantially less dredging than is authorized under the existing permit. Instead of the 3.4 million cubic yards of dredged material authorized under the existing permit, associated with installation of the shoreline bulkhead, the amount of material to be dredged, if indeed 2 additional T-head piers were applied-for and constructed, would amount to only 269,000 estimated cubic yards, as opposed to the originally authorized 3.4 million. Kevin Pope, the DER witness, established that there are no other projects in the area, or reasonably expected to be located in the project area, which would create impacts in addition to or cumulative with the proposed permit modification project so as to create adverse water quality impacts or which would make this project, because of cumulative impact, contrary to the public interest. There are no other dredge and fill projects in the area of the proposed T-head pier which would adversely impact the waters of the Blount Island Channel and the St. Johns River. The proposed modifications are shown not to likely cause any adverse environmental results and, in fact, will result in an environmental benefit as represented by the agreed-upon recession from the extensive dredging and bulkheading authorized by the present permit. No evidence was adduced by the Petitioner to contravene that adduced by Gate and the Department, which establishes the lack of any adverse cumulative impacts to be occasioned by the proposed project, both as to water quality standards and the public interest standards involved in this proceeding.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore, RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving the proposed modification to permit number 160462149 with the proviso that the conditions contained in the above findings of fact and conclusions of law be incorporated as specific conditions in the modified permit, including the additional condition agreed to at Final Hearing that the Manatee Protection Plan and Manatee Watch Program will be inaugurated and be incorporated as a specific condition in the modified permit. DONE and ENTERED this 11th of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 12th day of October, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application number 07256-F be APPROVED subject to the special conditions set forth above. DONE AND ORDERED this 15th day of July 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 15th day of July 1987.
Findings Of Fact The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel. The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals. The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be. The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it. The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods. This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat. The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
The Issue The issue is whether Respondent, Dames Point Workboats, LLC, is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 20, 2018, and subsequently amended on December 11, 2018.
Findings Of Fact The Parties Petitioner City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. The City initiated this proceeding by filing its Verified Petition for Formal Administrative Hearing ("Petition") with DEP on August 17, 2018. Respondent Workboats is the applicant for the Project. Its business address is 5118 Heckscher Drive, Jacksonville, Florida 32226. Workboats' owner, Shafnacker, owns the property located upland of the sovereignty submerged lands on which the Project is proposed to be constructed and operated. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to those statutes. Pursuant to that authority, DEP determines whether to issue or deny applications for environmental resource permits. Pursuant to section 253.002, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and in that capacity, reviews and determines whether to issue or deny applications for sovereignty submerged lands leases. The Back Channel and Vicinity of the Project The Project is proposed to be located in the "Back Channel" area of the St. Johns River, directly across from Blount Island. The Back Channel, as a part of the St. Johns River, is classified as a Class III waterbody. It is not designated an Outstanding Florida Water, is not located within an Aquatic Preserve, and is not designated for Shellfish Propagation or Harvesting. The Back Channel is configured in the shape of an inverted "U" and runs between Blount Island and Heckscher Drive, from the southeast corner of Blount Island to the bridges located on the northwest side of Blount Island. It constitutes a portion of the historic main channel of the St. Johns River and was used for all vessel navigation in the river until the Dames Point Cut was dredged through a peninsula to the south, creating Blount Island and a new straight channel to the Atlantic Ocean. Most vessels, including large ships, use the Dames Point Cut for ingress into and egress from the St. Johns River. However, the Back Channel remains navigable and is used for recreational activities and some commercial and industrial navigation. A mix of residential, commercial, and industrial and land uses is located on the north shore of the Back Channel in the vicinity of the Project. These uses consist of approximately 90 single-family residences having docks, three fish camps/recreational marinas, two restaurants, and docking structures used for mooring inshore shrimping vessels. A docking facility owned by M & M Shrimp and used for mooring shrimping vessels is located on the Back Channel immediately to the west of the Project site. A residence owned by Wood is located on the Back Channel immediately east of the Project site. Four other residences are located immediately east of Wood's residence, and back up to the Back Channel. Most of the shoreline on which these residences are located consists of riprap; however, a small patch of salt marsh borders the shoreline on Wood's residential parcel. Although Blount Island is a heavy industrial port, its northern shoreline on the Back Channel, across from the proposed Project site, consists of relatively undisturbed salt marsh and trees. The northeastern shoreline of the Back Channel generally consists of salt marsh and riprap, with docks constructed along the shoreline. Two bridges connect Blount Island to the mainland a short distance west of the proposed Project. These bridges each have a clearance of approximately ten feet, so they cannot be cleared by large vessels. As a practical matter, this has the effect of limiting the size of vessels that use the Back Channel in the vicinity of the Project. The Back Channel west of the bridges to the southwestern tip of Blount Island is fronted by heavy industrial uses, and numerous multi-family residential and industrial docking facilities are located in this area. A slow speed, minimum wake zone for boat operations extends 300 feet out into the Back Channel from both the north and south shorelines. The Back Channel is approximately 1,340 feet wide at the point at which the Project is proposed to be constructed. The Proposed Project The proposed Project will be constructed and operated4/ as a commercial tugboat/work boats mooring and loading/ offloading facility. The Project is proposed to be constructed and operated on sovereignty submerged lands5/ and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and sovereignty submerged lands lease are required for construction and operation of the Project.6/ The Project will be located waterward of the mean high water line on sovereignty submerged lands adjacent to four upland waterfront parcels that are owned by Shafnacker. These lots are: Lot 6 (5100 Heckscher Drive, RE 159971 0000); Lot 7 (5110 Heckscher Drive, RE 159972 0000); Lot 8 (5118 Heckscher Drive, RE 159973 0000); and Lot 9 (5120 Heckscher Drive, RE 159974 0000). Collectively, these lots have approximately 425 feet of linear shoreline, as measured at the mean high water line, bordering the Back Channel. This shoreline is comprised of salt marsh and riprap. A substantial portion of lots 6, 7, and 8 consists of salt marsh wetlands. No structures are proposed to be constructed on Lot 6. The salt marsh areas on lots 7 and 8 are traversed by existing pile-supported piers/access docks. To the extent they are replaced, such replacement will be by like-for- like structures, so there will be no new impact to the salt marsh wetlands on these lots. Most of Lot 9 consists of upland, some of which is authorized to be refilled under the Consolidated Authorization. A small wetland area consisting of approximately 18 square feet of salt marsh will be crossed by a new dock, but will not be filled or otherwise physically impacted. Dock A is proposed to be located on sovereignty submerged lands waterward of Lot 7, and will consist of a 15.4-foot-long by 8-foot-wide extension added to the waterward end of an existing 150.8-foot-long by 8-foot-wide wooden dock, plus a 4-foot-long gangway attached to the waterward end of the extension, which will connect to a 100-foot-long by 9.5-foot wide concrete floating dock. Dock B is proposed to be located on sovereignty submerged lands waterward of Lot 8, and will consist of a 40-foot-long by 10.3-foot-wide concrete floating dock with an 18-foot-long by 6-foot-wide platform, and a 4-foot-long gangway attached to an existing 125.2-foot-long by 5-foot-wide wooden dock. Dock C is proposed to be located on Lot 9, and will consist of a new inverted-L-shaped dock consisting of a 71-foot- long by four-foot wide pile-supported finger dock extending perpendicular to the shoreline into the Lease area, and a 26-foot long by 4-foot-wide dock running roughly parallel to the shoreline that will be constructed outside of the Lease area. Four wooden pilings also are proposed to be installed waterward of Lot 9. Three of these pilings will be located along the eastern boundary of the Lease, and the piling closest to the shoreline of Lot 9 will be located outside of the Lease area. All of these pilings will be set back 25 feet from Workboats' eastern riparian rights line. The newly constructed piling-supported dock additions to docks A and B, and new Dock C, will be elevated four feet above the marsh and will be constructed by hand-laying planks from the shoreline outward into the water, using the previously- laid planks as support while laying the new planks. Three three-pile mooring dolphins also are proposed as part of the Project. They will be installed within the Lease area, set back 38 feet from the southern boundary. No dredging is proposed or authorized for the Project. The Lease will be issued for a term of ten years and will preempt approximately 49,746 square feet of sovereignty submerged lands. The western boundary of the Lease is located 25 feet east of the upland property's western riparian rights line, and the eastern boundary of the Lease is located 25 feet west of the upland property's eastern riparian rights line. With the exception of a portion of Dock C and one wood piling that will be constructed on submerged land owned by Shafnacker,7/ all other structures proposed as part of the Project will be constructed within the boundaries of the Lease, and all vessel mooring and over-water operational activities authorized as part of the Project will occur within the Lease area. The Consolidated Authorization authorizes the placement of approximately 3,500 square feet of fill landward of the mean high water line and the jurisdictional wetland line, to replace historic fill eroded by hurricanes in 2017. Additionally, as a condition of the Consolidated Authorization, Workboats is required to restore approximately 250 square feet of salt marsh cord grass waterward of the mean high water line on Lot 9 as corrective action for unauthorized filling/destruction of salt marsh wetlands. As noted above, when constructed, the Project will operate as a tugboat/work boats mooring and loading/unloading facility. Workboats owns a fleet of approximately 40 vessels, comprised of barges, tow/push boats, and work boats, which are used to provide a range of marine services to third parties, including the transport/delivery of food and other supplies; artificial reef placement; marine demolition; and pile driving. These vessels will be moored at the docks, mooring dolphins, and mooring piles comprising the Project.8/ Of these 40 vessels, 28 are barges that range from ten to 130 feet in length, and have drafts ranging from 1.5 to 7.5 feet deep. The remaining 12 vessels are boats that range from 14 to 46.2 feet in length, and have drafts ranging from one foot to 6.8 feet deep. The water depths within the Lease area range from one tenth of one foot immediately adjacent to the shoreline, to between 39.5 and 43.5 feet deep at mean low water at the southern boundary of the Lease. Only one or two of the smaller boats in Workboats' fleet have drafts that are shallow enough to enable them to moor on the shoreward sides of Docks A and B. In any event, all vessels must moor in areas within the Lease area having depths at mean low water sufficient to ensure that they do not come into contact with submerged resources. To that end, a condition is included in the Consolidated Authorization requiring a minimum 12-inch clearance between the deepest draft of a vessel with the motor in the "down" position and the top of submerged resources at mean low water. The parties stipulated, and Shafnacker testified, that with the exception of the 32-foot-long Marlin Barge and the 10- foot-long Galligan barges, all other barges in Workboats' fleet will moor at the three-pile dolphins near the southern boundary of the Lease. Some barges will be anchored to the substrate by spuds, and the condition requiring 12 inches of clearance between the vessel bottom and the top of submerged resources would not apply to the spuds themselves. The parties stipulated, and Shafnacker testified, that Workboats will only load vessels from Dock B, which is appurtenant to Lot 8, and that the only equipment that will be used to load vessels will be equipment small and light enough to traverse Dock B——specifically, a Takeuchi mini-excavator, small forklift, or similarly-sized equipment. These limitations regarding the loading of vessels within the Lease area are not currently included as conditions of the Consolidated Authorization. Based on the parties' stipulation and competent substantial evidence in the record, conditions should be added to the Consolidated Authorization expressly limiting the loading of vessels in the Lease area to occurring only on Dock B, and limiting the type of equipment used for vessel loading and unloading to forklifts, mini-excavators, or similar light equipment. Shafnacker testified that the only other work that may be performed within the Lease area would consist of certain minor maintenance activities on Workboats' vessels; these minor repair activities include non-routine paint touchups and handrail painting, minor cable and winch repairs, and minor steel-rod (non-lead) welding. DEP Review and Approval of the Project Workboats filed a Joint Application for Individual Environmental Resource Permit/Authorization to Use State-Owned Submerged Lands/Federal Dredge and Fill Permit ("Application") on or about June 15, 2018. The Application was determined to be complete. DEP staff reviewed the Application and determined that the Project, as proposed, met the applicable statutory standards and rule requirements for issuance of the Consolidated Authorization. DEP issued the Consolidated Notice of Intent on or about July 20, 2018, proposing to issue the environmental resource permit and Lease for the Project. The Application, Consolidated Notice of Intent, and Consolidated Authorization were admitted into evidence at the final hearing. Compliance with Rule 62-330.301 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it must provide reasonable assurance9/ that the Project meets the requirements of rule 62-330.301.10/ Water Quantity, Storage, Conveyance, and Flooding Impacts The entire Project, as proposed, will be constructed waterward of the mean high water line and will consist of mooring piles, piling-supported docks, and floating docks. These structures will not affect, impound, store, divert, or impede the amount or flow of surface water. The evidence demonstrated that the Project, if constructed and operated as proposed, will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Impacts to Value of Functions Provided to Fish, Wildlife, Listed Species, and Habitat Two types of habitat exist at the Project site: salt marsh and submerged benthic habitat. The evidence established that the salt marsh at the Project site is healthy, high-quality, high-functioning salt marsh habitat. Among the functions the salt marsh provides are preservation and improvement of water quality by filtering runoff, serving as a nursery for fish species, preventing shoreline erosion, and forming the base of the estuarine food chain. The salt marsh, in combination with existing riprap at the edge of the salt marsh, forms a "living shoreline" at the Project site that helps protect the shoreline from erosion and scouring due to wave action. This living shoreline is not being removed or otherwise affected, and will remain in place at the Project site. The submerged benthic sediment at the Project site consists of high organic silts and a sand base. The evidence established that the benthic sediment provides habitat for infauna, such as polychaete worms; and for epifauna, such as shrimp, crabs, and mollusks. No submerged aquatic vegetation or oyster bars were found at the Project site. Docks A and B consist of extensions that will be added to two existing docks that previously were constructed through the salt marsh. These extensions will be constructed four feet above the marsh floor to reduce shading, using minimally- impactful construction techniques, discussed above, to help avoid and minimize construction impacts to the marsh. The floating components of docks A and B will not have any impact on the salt marsh habitat. Dock C will be constructed waterward of Lot 9, across a very small section of salt marsh grass. It also will be elevated four feet above the marsh floor to reduce shading, and will be constructed using the same minimally-impactful technique, to avoid and minimize impacts to the marsh. Because Dock C will have only de minimis impacts on the salt marsh, no mitigation has been required. The Consolidated Authorization contains conditions requiring Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibiting Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have only minimal impacts on the salt marsh habitat at the Project site. The Consolidated Authorization contains a specific condition requiring maintenance of a minimum 12-inch clearance between the deepest draft of the vessel, with the motor in the down position, and the top of submerged resources for all vessels that will use the docking facility. Additionally, the construction of mooring areas over submerged grass beds is prohibited. These conditions will help protect benthic habitat at the Project site. The Florida Manatee is the only listed species that inhabits the Project site. Video evidence presented by the City showed manatees present at, and in the vicinity of, the Project site. The Project is located in an area designated, in the most recent Duval County Manatee Protection Plan (November 2017) ("MPP"), as "preferred" for boat facility siting. Boating facilities located in designated "preferred" areas generally do not have any limits on the number of slips at the facility. "Preferred" boat facility siting areas were designated in the MPP based on many factors, including manatee abundance, presence of manatee feeding habitat, proximity to boating destinations, manatee mortality in the area, existing boating slip numbers and locations, boating facility type and number, and existence of speed zones. To protect manatees in the Back Channel, the Florida Fish and Wildlife Conservation Commission ("FWC") has, by rule, established a slow speed, minimum wake zone extending 300 feet from the shorelines into the Back Channel. A slow speed, minimum wake zone means that a vessel must be fully off-plane and completely settled into the water, proceeding at a speed which is reasonable and prudent under the prevailing circumstances so as to avoid the creation of an excessive wake or other hazardous condition which endangers or is likely to endanger other persons using the waterway.11/ Fla. Admin. Code R. 68C-22.02(4). The existence and enforcement of this speed zone will help protect manatees in the Back Channel. Conditions also have been included in the Consolidated Authorization to help protect manatees from impacts from the Project. As previously discussed, for each vessel, a minimum 12-inch clearance between the deepest draft with the motor down, and the top of the submerged resources at mean low water, must be maintained. This condition will help ensure that manatees do not become trapped under or crushed by a vessel while moored in the Lease area. Additionally, bumpers or fenders must be installed and maintained to provide at least three feet of separation between moored vessels and between the docks/mooring piles and vessels, to help prevent trapping or crushing of manatees. The Consolidated Authorization also requires the Project to be constructed and operated in accordance with the Standard Manatee Conditions for In-Water Work. These conditions include: instructing all personnel, including construction personnel, about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees, as well as about civil and criminal penalties imposed for harming, harassing, or killing manatees; operating all vessels associated with construction of the Project at "idle speed/no wake" at all times in the vicinity of the Project and where the draft of the vessel provides less than a four-foot clearance from the bottom; the requirement that all in-water operations, including vessels, must shut down if a manatee comes within 50 feet of the operation and cannot resume until the manatee either moves beyond the 50-foot radius of the operation or 30 minutes has elapsed and the manatee has not reappeared within 50 feet of the operation; the installation of specified temporary signage; and the installation of specified permanent signage. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the construction and operation of the Project will not adversely affect the value of functions provided to fish, wildlife, or listed species and their habitats. Water Quality Impacts As previously noted, the St. Johns River, including the Back Channel, is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in Florida Administrative Code Rule 62-302.300 apply to the Back Channel. The Back Channel portion of the St. Johns River has been identified as impaired for lead, pursuant to Florida Administrative Code Chapter 62-303. The credible, persuasive evidence demonstrates that the Project, if constructed and operated in accordance with the conditions currently included in the Consolidated Authorization along with additional conditions discussed below, will not cause or contribute to water quality violations. Specifically, the Project will be required to install and maintain turbidity barriers during the construction phase to help ensure that any sediment disturbed during construction does not cause or contribute to water quality violations. Additionally, as discussed above, a minimum 12-inch clearance between the deepest draft of each vessel, with the motor down, and the top of the submerged resources at mean low water must be maintained. This will help prevent the suspension of sediments, and any constituents in those sediments, from being suspended in the water column and causing or contributing to water quality violations, as a result of the Project. The Consolidated Authorization also prohibits the storage or stockpiling of tools, equipment, materials, such as lumber, pilings, riprap, and debris within wetlands or other waters of the state; prohibits the discharge of construction debris into waters of the state; prohibits the overboard discharge of trash, human or animal waste and fuel at the docks; and requires all work to be done in periods of average or low water, so that impacts to submerged resources, including bottom sediment, can be avoided. Collectively, these conditions help provide reasonable assurance that the construction and operation of the Project, including the mooring and operation of vessels in the Lease area, will not violate water quality standards. White testified that, generally, the water quality in, and in the vicinity, of marinas degrades over time due to the discharge of oils, greases, and other waste; and the suspension in the water column of sediments and toxins, pesticides, herbicides, and heavy metals in those sediments, as a result of propeller dredging. However, Irwin testified that because the Project site is located in a tidally-influenced area, with an approximate 3.5-foot tide range over multiple tide changes per day, the Project site will be adequately flushed such that there will not be an accumulation of pollutants that may violate water quality standards. Based on Irwin's persuasive testimony, it is determined that water quality violations will not occur due to an accumulation of pollutants at the Project site. To further ensure that the Project will not degrade water quality or violate water quality standards at the Project site, the Consolidated Authorization requires Workboats to submit a facility management plan to address maintenance and unexpected spills of fuels and other pollutants. The facility management plan must include a spill response plan for fuel spills; a plan for maintenance of gray water collection systems and return systems, to the extent applicable; a plan addressing garbage collection and vessel cleaning systems to prevent disposal of waste in wetlands; and an education plan for all employees at the Project regarding fueling, sewage and gray water pump operations, waste management, and facility maintenance. Sewage pump-out facilities are not proposed as part of the Project. Shafnacker testified, and the Consolidated Authorization, Project Description section currently states, that domestic waste from boat heads will be handled through use of a waterless incinerating toilet (Incinolet or similar), and the remaining ash shall not be disposed of in waters of the state. However, it is noted that this requirement is not currently included as an enforceable condition. The undersigned finds that a specific condition expressly prohibiting any sewage pump-out at the docks or on vessels, requiring the use of an incinerator toilet, and prohibiting the discharged of ash waste should be included in the Consolidated Authorization to provide reasonable assurance that the Project will not violate water quality standards due to the discharge of sewage into waters of the state. The Consolidated Authorization, Project Description section, states: This permit does not authorize the installation and use of fueling equipment at the Dock; the discharge of waste into the water; liveaboards; fish cleaning or the installation of fish cleaning stations; repair and maintenance activities involving scraping, sanding, stripping, recoating, and other activities that may degrade water quality or release pollutants into Waters of the State. Major repair, reconstruction, and/or other service must be performed at a facility approved for vessel haul-out and repair. This does not preclude the light maintenance allowed under Specific Condition 18 to be performed at the facility. This language, which expressly identifies numerous activities that are prohibited in connection with the operation of the Project, is not currently included as an enforceable condition in the Consolidated Authorization. The undersigned determines that in order to protect water quality at the Project site, this language must be included as a specific condition in the Consolidated Authorization. As previously noted above, the Back Channel is impaired for lead. Both Irwin and Hallett testified that Workboats would not use lead paint or lead-containing welding equipment on the docks or vessels moored in the Lease area. To provide reasonable assurance that the Project will not constitute a source of lead that will contribute to the impaired status of the Back Channel, a specific condition prohibiting the use of lead-based paints and other sources of lead should be included as an enforceable condition in the Consolidated Authorization. Based on the foregoing, the undersigned finds that, with the addition of the conditions discussed in paragraphs 68, 69, and 70 above, Workboats has provided reasonable assurance that applicable water quality standards will not be violated as a result of construction or operation of the Project. Adverse Secondary Impacts to Water Resources Secondary impacts are impacts caused by other relevant activities very closely linked or causally related to the activity itself, rather than the direct impacts of the proposed activity itself.12/ The conditions currently included in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70 above, provide reasonable assurance that the Project will not cause adverse secondary impacts to water quality. Additionally, the Project will not cause adverse secondary impacts to the functions of wetlands and surface waters, aquatic or wetland-dependent species, or listed species. As discussed above, the salt marsh habitat will not be disturbed during construction and operation of the Project, and the benthic habitat will be protected by the minimum 12-inch vessel to the top of submerged resource clearance requirement discussed above. These Project features and conditions will help ensure that there are no adverse impacts to wetland functions and to aquatic or wetland-dependent species, such as fish and benthic fauna. Additionally, the Project will be located within a slow speed, minimum wake zone, and Workboats will be required to operate all of its vessels in compliance with that standard within the 300-foot buffer along the shorelines of the Back Channel. This operational constraint, along with additional manatee protection conditions discussed above, provide reasonable assurance that the Project will not cause adverse secondary impacts to manatees. Based on the foregoing, it is determined that, with the addition of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not have adverse secondary impacts to the water resources. Impacts to Ground and Surface Water Levels and Surface Water Flows As discussed above, the Project will be constructed waterward of the mean high water line, and will consist of piling-supported and floating docks and mooring piles that will not adversely impact the maintenance of minimum surface or ground water levels or surface water flows at the Project site. Impacts to Works of the District The Project is not proximate to any works of the district, as approved pursuant to section 373.086; accordingly, it will not cause adverse impacts to such works. Capable of Performing and Functioning as Designed The Project was designed by an engineer and will be installed by Shafnacker, who is an experienced marine contractor. The Consolidated Authorization requires that the Project must be implemented in accordance with the approved plans, specifications, and performance criteria. Within 30 days of completion of construction of the Project, Workboats must submit an as-built survey, signed and sealed by a Florida licensed Surveyor and Mapper in accordance with Florida Administrative Code Chapter 61G17-7, depicting the boundaries of the Lease, and showing the size and dimensions of all existing overwater structures and activities within the Lease area. Additionally, the surveyor must provide a statement that all of the depicted structures and activities are located within the Lease area; or identify, and depict on an as-built survey, any structures or activities outside of the Lease area. These requirements will ensure that the Project performs and functions as designed. Financial, Legal, and Administrative Capability Rule 62-330.301(1)(j) requires an applicant for an environmental resource permit to provide reasonable assurance that the project will be conducted with a person having the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit.13/ The Environmental Resource Permit Applicant's Handbook, Volume I (General and Environmental) ("Handbook"), section 1.5.1., which provides further guidance regarding compliance with the requirement in rule 62-330.301(1)(j), states that "[c]ompliance with this requirement must be demonstrated through subsections 62-330.060(3) and (4), the certification required in the Application Form 62-330.060(1), and section 12.0 of the Handbook." As part of the Application, Workboats submitted copies of warranty deeds for lots 6, 7, and 8, and Disclaimer No. 22146 for Lot 9. These documents establish that Shafnacker holds title to the uplands on lots 6 through 9 and to certain submerged lands waterward of Lot 9. Pursuant to Handbook section 4.2.3, these documents satisfy the "sufficient upland interest" requirement in rules 62.330.060(3) and 62- 330.301(1)(j). Rule 62-330.060(3) also requires the applicant and/or the applicant's agent to sign specific parts of the application. Here, Workboats, and Shafnacker, as Workboats' agent, signed the pertinent portions of the Application, as required by this rule. Rule 62-330.060(4) and pertinent provisions of section 12.0 of the Handbook——specifically, provisions in sections 12.1 and 12.2——require that once construction of the permitted activity is complete, it must be converted to the operational phase by submitting an as-built certification and request for conversion to operational phase. Here, the Consolidated Authorization for the Project requires submittal of this form, once construction is complete, as a condition for operation of the Project. These are the only rules and Handbook provisions regarding demonstration of financial, legal, and administrative capability that are pertinent to the Project. No other environmental resource permitting rules or Handbook provisions impose any other requirements regarding financial capability, and the City has not identified any case law or other statutes or rules imposing additional pertinent financial capability requirements. Thus, the evidence establishes that Workboats meets rule 62-330.301(1)(j) and all other pertinent rules and Handbook requirements, showing it has the financial, legal, and administrative capability to ensure the Project will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. The City did not present any evidence to show that Workboats lacks the financial, legal, and administrative capability to undertake the Project as permitted. Compliance with Rule 62-330.302 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it also must provide reasonable assurance that the Project meets the requirements of rule 62-330.302,14/ which establishes additional standards for issuance of environmental resource permits for activities in surface waters or wetlands. Adverse Effects to Public Health, Safety, or Welfare, or Property of Others In determining whether a proposed activity in surface waters or wetlands would adversely affect the public health, safety, or welfare, or the property of others, the focus is on environmental hazards or injuries that may result from the proposed activity.15/ Thus, alleged threats to personal safety and enjoyment of neighboring property resulting from alleged unlawful activities on the upland areas of lots 6, 7, and 916/—— which are not part of the Project——are not appropriately considered as part of the public interest determination under rule 62-330.302. As discussed above, the Consolidated Authorization contains conditions aimed at ensuring that water quality is not degraded and water quality standards are not violated due to the Project. These conditions, along with conditions addressed in paragraphs 68, 69, and 70, above, provide reasonable assurance that the public health, safety and welfare, and property of others will not be adversely affected as a result of water quality degradation or violations. The Project, as designed and approved, will have 25-foot setbacks from the eastern and western riparian rights lines for lots 6 through 9. These setbacks will help ensure that the construction and operation of the Project will not interfere with the adjoining properties' riparian rights. The City presented the testimony of O'Connor, who opined that some of Workboats' vessels, operated at full throttle, were capable of generating a wake as high as three feet. O'Connor testified that a wake of this height could damage docks along the shoreline of the Back Channel, cause shoreline erosion, and create a safety hazard for recreational boaters, kayakers, and others engaged in in-water recreational activities. As discussed above, the Back Channel is approximately 1,300 feet wide at the Project site. Per the location map provided as part of the specific purpose survey, the portion of the Back Channel east of the Project site is at least this wide for its entire length. Shafnacker testified, credibly, that his vessels typically operate closer to the Blount Island shoreline than the northern shoreline of the Back Channel, so are approximately 800 feet away from the northern shoreline where the residential docks and access points for boaters, kayakers, and other recreational uses are located. Additionally, Shafnacker credibly testified that Workboats' boats and barges would be operated at speeds such that the highest wake that any of his vessels would generate is two feet. Based on the foregoing, and with the inclusion in the Consolidated Authorization of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not adversely affect the public health, safety, welfare, and property of others. Adverse Effects to Conservation of Fish, Wildlife, Listed Species, and their Habitats As previously discussed, the Consolidated Authorization requires Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibits Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have minimal impact on the salt marsh habitat at the Project site. The Consolidated Authorization also contains a condition prohibiting the construction of mooring areas over submerged grass beds. This, along with the condition requiring a minimum 12-inch clearance between vessel bottom and submerged resources, will help protect the benthic habitat at the Project site. Additionally, the Consolidated Authorization imposes conditions to protect manatees from impacts due to the Project. Specifically, bumpers or fenders must be installed and maintained to provide at least three feet of separation between docks or mooring piles and vessels, and between vessels, and a minimum 12-inch clearance between the deepest draft of the vessel and the top of the submerged resources at mean low water must be maintained. The Project also must be constructed and operated in accordance with the FWC's Standard Manatee Conditions for In-Water Work, which imposes construction and operational requirements to protect manatees for the life of the Project. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the Project will not adversely affect the conservation of fish and wildlife, including threatened species and their habitats. Adverse Effects to Navigation, Flow of Water, or Shoaling The Back Channel is navigable, and is over 1,300 feet wide at the point at which the Project is proposed to be located. It is used by a mix of recreational vessels and commercial and industrial vessels, although, as noted above, the low-clearance bridges on the western end of Blount Island effectively limit the commercial and industrial traffic to smaller-sized vessels. As depicted on the specific purpose survey submitted as part of the Application, the southern boundary of the Lease extends waterward approximately 196 feet from the shoreline at the eastern boundary of the Lease, and approximately 174 feet from the shoreline at the western boundary of the Lease. Thus, at its most waterward point, the preempted area of the Lease will extend waterward approximately 14 percent of the width of the Back Channel.17/ The specific purpose survey shows docks A and C extending waterward approximately 60 feet from the shoreline, and shows Dock B extending waterward approximately 45 feet from the shoreline.18/ The three three-pile dolphins, which will be used to moor the largest barges, will be set back approximately 38 feet from the southern boundary of the Lease. Shafnacker testified that barges moored at the three-pile mooring dolphins will be tied between the dolphins, by ropes at their bows and sterns, to ensure that they do not drift out of the Lease area and create a navigational hazard. The Consolidated Authorization contains a condition requiring the waterward ends of the docks and the mooring dolphins to be marked by reflectors so as to be visible from the water at night by reflected light. However, at the hearing, Shafnacker testified that he intended to mark the dolphins and barges with solar battery-powered lights so that they would be more visible at night than if only reflectors are used. Based on this testimony, it is recommended that Specific Condition No. 13 in the Consolidated Authorization be modified to require the barges and mooring dolphins to be marked by lights, as well as reflectors, to make them more visible from the water. Based on the foregoing, it is determined that the Project, as proposed, will not adversely impact navigation in the Back Channel. Specifically, the Lease will not extend a significant distance out into the Back Channel; approximately 86 percent of the width of the Back Channel at the Project site remains open for navigation by the public. Additionally, the docks will be located relatively close to the shoreline, well within the Lease preempted area, and will be marked so that they are visible from the water. The mooring dolphins also will be set back a substantial distance from the Lease boundary and will be marked so as to be visible from the water. The evidence shows that the Project will not have any adverse effects on the flow of water. As discussed above, the Project will not impede, impound, or otherwise affect the flow of water. The evidence also shows that the Project will not cause harmful shoaling or erosion. No dredging or placement of dredged spoil is proposed or authorized as part of the project, and the Consolidated Authorization requires Workboats to use silt fencing and other specified best management practices to stabilize the sediment and prevent erosion and shoaling during construction of the Project. For these reasons, it is determined that the Project will not adversely impact navigation in the Back Channel, will not adversely affect the flow of water, and will not result in harmful shoaling or erosion. Adverse Effects to Fishing, Recreational Values, or Marine Productivity The Back Channel is a meander of the St. Johns River that no longer is used as the main navigational channel for the river. Thus, it is relatively calm and is extensively used for boating, kayaking, swimming, fishing, jet skiing, and other in- water recreational activities. The evidence establishes that the Project will not adversely affect fishing, recreational values, or marine productivity in the vicinity. The salt marsh habitat in the vicinity of the Project, which serves as the base of the estuarine food chain and as a nursery and refuge for small fish, will not be disturbed during construction of the Project. As such, the Project will not adversely affect fish habitat or marine productivity. Additionally, because the Project will be constructed within the boundaries of the Lease and set back 25 feet from the riparian lines for the adjoining properties, it will not physically interfere with or displace fishing activities from those properties, or from any other property in the vicinity. The Consolidated Authorization imposes conditions to protect water quality during construction and operation of the Project. These conditions, and the additional conditions, discussed in paragraphs 68, 69, and 70, above, will protect water quality, and therefore help protect fish habitat and marine productivity. The credible evidence establishes that vessel operation associated with the Project will not adversely affect boating, kayaking, fishing, or other recreational activities in the vicinity. As discussed above, the Project is located in a slow speed, minimum wake zone that extends 300 feet from the shoreline into the Back Channel, and all vessels traversing into and out of the Lease area must operate at this speed until they are beyond 300 feet from the shorelines. Additionally, Shafnacker credibly testified that once out of the 300-foot slow speed, minimum wake zone, the vessels will operate at speeds such that they will generate a wake of two feet, at most. The evidence showed that wakes of this height are not anticipated to adversely affect recreational activities in the Back Channel. Temporary or Permanent Activity The Project will be permanent. However, the evidence establishes that there are numerous permanent docking facilities along the northern shoreline of the Back Channel, so the Project is not unique in that regard. Adverse Impacts to Significant Historical or Archaeological Resources The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any adverse impacts to such resources. As a precaution, the Consolidated Authorization contains a specific condition requiring Workboats to immediately cease all activities involving subsurface disturbance and to contact DHR if any prehistoric or historic artifacts, such as pottery or ceramics, project points, dugout canoes, metal implements, historic building materials, or any other physical remains that could be associated with Native American, early European, or American settlements are encountered at any time within the Project site. Accordingly, it is determined that the Project will not adversely affect significant historical or archaeological resources. Current Condition and Relative Value of Functions The salt marsh wetlands in the vicinity of the Project are healthy, high-functioning, and part of a "living shoreline" that will not be disturbed by construction or operation of the Project. Although Dock C will be constructed across a very small patch of salt marsh, it will be elevated to reduce shading and will be constructed using minimally-impactful construction techniques. Any impacts to the salt marsh from the Project will be de minimis. The Project is also not anticipated to adversely affect the condition and relative value of the benthic habitat on the Project site. As discussed above, the Consolidated Authorization imposes a minimum 12-inch clearance from vessel bottom to top of submerged resources requirement, which will help prevent physical impact to, and propeller dredging of, the benthic habitat at the Project site. Conditions in the Consolidated Authorization, as well as the conditions addressed in paragraphs 68, 69, and 70, above, also will help protect the current condition and relative value of the salt marsh and benthic habitat on the Project site. Unacceptable Cumulative Impacts to Wetlands and Surface Waters With the conditions currently contained in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70, above, the Project is not anticipated to have adverse water quality impacts. Additionally, as discussed above, the Project is not anticipated to cause adverse impacts to fish, wildlife, protected species, and their habitat. Therefore, with the inclusion of the conditions discussed in paragraphs 68, 69, and 70, above, reasonable assurance has been provided that the Project will not have unacceptable cumulative impacts, in violation of rule 62- 330.302(1)(b). Past Violations of Water and Wetlands Statutes and Rules The City presented evidence consisting of videos and photographs taken from the Wood residence immediately east of Lot 9. These videos and photographs show a variety of activities that are potentially damaging to surface waters and wetlands, including dumping sediment into surface waters from a moored vessel; earthmoving; moving floating docks onto, and off of, the shoreline using heavy equipment; operating heavy equipment in wetlands and surface waters along the shoreline; and mooring boats in extremely shallow water. Wood testified, credibly, that he contacted DEP numerous times, and that DEP occasionally visited Shafnacker's property——typically days after Wood had contacted the agency. Upon inspecting the Workboats site, DEP determined that barges or other equipment or materials had been dragged onto the shoreline without proper authorization, and DEP issued a compliance assistance offer letter to address this noncompliance. DEP ultimately determined that, rather than taking enforcement action for this noncompliance, a salt marsh restoration corrective action requirement should be included in the Consolidated Authorization. The corrective action conditions require Workboats to submit a salt marsh restoration plan and impose restoration plan completion timeframes, success criteria, and monitoring requirements. Given Workboats' noncompliance history, the undersigned determines that in order to provide reasonable assurance that the Project will not violate environmental resource permitting statutes and rules, the conditions addressed above in paragraphs 35, 68, 69, and 70, above, must be included as enforceable conditions in the Consolidated Authorization. Compliance with Chapter 18-21 for Issuance of the Lease For Workboats to be entitled to issuance of the Lease, it must demonstrate, by a preponderance of the evidence, that it will meet the applicable requirements and standards codified in Florida Administrative Code Chapter 18-21 for issuance of a sovereignty submerged lands lease. Water Dependent Activities Rule 18-21.004(1)(g) requires activities on sovereignty submerged lands to be limited to those that are water dependent. A "water dependent activity" is one that can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. Fla. Admin. Code R. 18- 21.003(71). The Project's proposed docks, mooring piles, mooring dolphins, and vessel mooring operations are water dependent activities. The Project's primary purpose is the water dependent activity of mooring vessels and the ancillary activity of loading vessels with supplies as part of Workboats' operation. Case law interpreting Florida Administrative Code Chapter 18-21 holds that because the primary purpose of docks and other mooring structures is to moor vessels, they are "water dependent" activities for purposes of rule 18-21.004(1)(g).19/ As discussed in paragraphs 35, 68, 69, and 70, above, a condition should be included in the environmental resource permit and Lease specifically prohibiting any major repair, reconstruction, or maintenance activities within the Lease area, in order to ensure that only water dependent activities are conducted within the Lease area. Resource Management Requirements Rule 18-21.004(2)(a) requires sovereignty submerged lands to be managed primarily for the maintenance of natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Additionally, the rule authorizes compatible secondary uses that will not detract from or interfere with these primary purposes. As discussed above, the evidence establishes that the Project, as proposed and conditioned in the Consolidated Authorization, will not adversely affect salt marsh or benthic habitat, will not degrade water quality or cause or contribute to water quality violations, and will not adversely affect fish, wildlife, listed species, and marine productivity. Accordingly, the Project will not detract from, or interfere, with fish and wildlife propagation. The evidence also establishes that the Project will not detract from, or interfere with, traditional recreational uses. As discussed above, the Back Channel is wide enough to accommodate vessels traveling to and from the Project site without detracting from or interfering with recreational activities conducted in the Back Channel. Additionally, vessels traveling to and from the Project site must be operated in accordance with the slow speed, minimum wake zone within the 300-foot shoreline buffer, and will be operated at speeds that will generate a maximum two-foot wake outside of the shoreline buffer. The evidence shows that these speeds will not detract from, or interfere with, traditional recreational uses in the Back Channel. The Project also has been designed, and will be operated, to minimize or eliminate wetland vegetation impacts and impacts to fish and wildlife habitat and cultural resources. Specifically, as discussed above, impacts to the salt marsh habitat have been minimized through the use of minimally- impactful construction techniques and elevating docks four feet above the marsh to reduce shading of the marsh grasses. Additionally, the 12-inch minimum vessel/submerged resource clearance condition will reduce impacts to the benthic habitat in the Lease area. As discussed above, DHR did not provide comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any impacts to such resources. Additionally, the Consolidated Authorization contains a specific condition establishing protocol for Workboats to follow if any specified artifacts are encountered at any time within the Project site. Rule 18-21.004(7)(e) requires that construction, use, or operation of the structure or activity not adversely affect any species listed as endangered, threatened, or of special concern in FWC rules. As discussed above, the Florida Manatee is the only listed species determined to be present the Project site. The Project site is located within an established slow speed, minimum wake zone, and vessels entering and leaving the Project site must comply with this speed limitation within the 300-foot shoreline buffer area. Additionally, the Consolidated Authorization includes several conditions designed to reduce and minimize potential impacts to manatees that may enter the Lease area. Collectively, these requirements and conditions will help ensure that the construction and operation of the Project will not adversely affect manatees. Riparian Rights As part of the Application, Workboats submitted deeds and Disclaimer No. 22146, demonstrating that Shafnacker holds title to lots 6, 7, 8, and 9. These documents constitute "satisfactory evidence of sufficient upland interest," as that term is defined in rule 18.21.003(60). Consistent with rule 18-21.004(3)(d), the Project is proposed to be constructed in the riparian area appurtenant to lots 6, 7, 8, and 9, and all structures that are part of the Project will be set back at least 25 feet from the eastern and western riparian lines for the upland property. No evidence was presented showing that the construction or operation of the Project would unreasonably restrict or infringe upon the riparian rights of adjacent upland owners, in violation of rule 18-21.004(3)(c). It is determined that the Project will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners, so meets the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 102 through 107, above, it is determined that the Project will not constitute a navigational hazard, in violation of rule 18- 21.004(7)(g). However, the inclusion of a condition requiring lighting of the mooring dolphins, discussed in paragraph 106, is recommended to ensure the Project will not constitute a navigational hazard. Lease Fees As part of the Application, Workboats submitted a financial affidavit attesting to its ability to pay the required fees for the Lease, imposed pursuant to rules 18-21.008 and 18-21.011. Not Contrary to the Public Interest Rule 18-21.004 establishes the sovereignty submerged lands management policies, standards, and criteria to be used in determining whether to approve activities on sovereignty submerged lands. The term "public interest" is defined to mean "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Fla. Admin. Code R. 18-21.003(51). To meet the "not contrary to the public interest" standard in rule 18-21.004(1)(a), it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998). Here, the City asserts that the Lease is contrary to the public interest because it will cause adverse impacts to benthic and salt marsh habitat; discharge pollutants into the waters of the Back Channel; harm manatees; pose a navigational hazard; and detract from, and interfere with, recreational activities in the Back Channel. However, as discussed above, the evidence shows that the Project has been designed specifically to minimize many of these impacts, and the Consolidated Authorization contains conditions specifically aimed at preventing many of these alleged impacts. As discussed above, other conditions, discussed in paragraphs 68, 69, 70, 106, and 138, also should be included in the Consolidated Authorization to ensure that the Project will not cause adverse impacts to habitat resources, water quality, manatees, and navigation. Case law interpreting the public interest test in rule in 18-21.004(1)(a) applicable to proprietary approvals holds that when proposed structures or activities meet the applicable standards and criteria in chapter 18-21, those structures or activities are presumed to be not contrary to the public interest. See Spinrad v. Guerro and Dep't of Envtl. Prot., Case No. 13-2254 (Fla. DOAH July 25, 2014), modified in part, Case No. 13-0858 (Fla. DEP Sept. 8, 2014); Haskett v. Rosati and Dep't of Envtl. Prot., Case No. 13-0465 (Fla. DOAH July 31, 2013), modified in part, Case No. 13-0040 (Fla. DEP Oct. 29, 2013). Here, Workboats has demonstrated that the Project meets all applicable standards and criteria in chapter 18-21; thus, the Project is presumed to be not contrary to the public interest under rule 18-21.004(1)(a).20/ The City did not present persuasive evidence showing that, on balance, the demonstrable environmental, social, and economic costs of the Project exceed the demonstrable environmental, social, and economic benefits accruing to the public.21/ Accordingly, it is determined that the Project meets the public interest test in rule 18- 21.004(1)(a). Entitlement to Environmental Resource Permit Workboats met its burden under section 120.569(2)(p) to present a prima facie case of entitlement to the environmental resource permit by entering into evidence the Application, Notice of Intent, Consolidated Authorization, and supporting information. Workboats also presented credible, competent, and substantial evidence beyond that required to meet its burden to demonstrate prima facie entitlement to the environmental resource permit. The burden then shifted to the City to demonstrate, by a preponderance of the competent substantial evidence, that the Project does not comply with sections 373.413 and 373.414 and applicable environmental resource permitting rules. For the reasons discussed above, it is determined that the City did not meet its burden of persuasion under section 120.569(2)(p). Accordingly, for the reasons discussed above, it is determined that, with the inclusion of conditions in the Consolidated Authorization addressed in paragraphs 35, 68, 69, 70, and 106, above, Workboats meets all applicable requirements for issuance of the environmental resource permit for the Project. Entitlement to Lease As discussed above, Workboats bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Project meets all applicable statutory and rule requirements for issuance of the Lease. For the reasons discussed above, it is determined that Workboats met this burden, and, therefore, is entitled to issuance of the Lease for the Project. The City's Standing As previously noted, the City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. On or about July 26, 2018, the Council of the City of Jacksonville, Florida, adopted Resolution 2018-499-A, finding that issuance of the environmental resource permit and Lease affects the substantial interests of a significant number of residents in Duval County. The City initiated this proceeding by filing its Petition with DEP on August 17, 2018, alleging that the Project will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft amended Permit No. 16-0345934-003-EI, as modified to include the conditions addressed in paragraphs 35, 68, 69, 70, 106, and 137, above. DONE AND ENTERED this 1st day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2019.
The Issue The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.
Findings Of Fact Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.
Findings Of Fact The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13) The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River. DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Jeffrey C. Sweet, Esquire Post Office Box 5386 Daytona Beach, Florida 32018 Jeffrey David Evans Twelve Venetian Circle Port Orange, Florida 32019 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in DOAH Case No. 98-3901 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to a maintenance dredging exemption from environmental resource permitting. The issue in DOAH Case No. 98-5409 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to an environmental resource permit for the construction of a surface water management system.
Findings Of Fact The Parties Respondent Deep Lagoon Boat Club, Ltd. (Applicant), owns and operates Deep Lagoon Marina. In DOAH Case No. 98-3901, Petitioner and Intervenor challenge Applicant's claim of an exemption to maintenance dredge three canals serving the marina. In DOAH Case No. 98-5409, Petitioner challenges Applicant's request for an environmental resource permit to construct and operate a surface water management system on the uplands on which the marina is located. By stipulation, Petitioner has standing. Intervenor is a nonprofit organization of natural persons, hundreds of whom reside in Lee County. The primary purpose of Intervenor is to protect manatees and their habitat. Many of the members of Intervenor use and enjoy the waters of the State of Florida, in and about Deep Lagoon Marina, and would be substantially affected by an adverse impact to these waters or associated natural resources, including manatees and their habitat. Deep Lagoon Marina is within the jurisdiction of the South Florida Water Management District (SFWMD). By agreement with SFWMD, Respondent Department of Environmental Protection (collectively, with the predecessor agency, DEP) is the agency with permitting jurisdiction in DOAH Case No. 98-5409. The Marina Deep Lagoon is a short, largely mangrove-lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. Deep Lagoon Marina is on Deep Lagoon, less than one-half mile from the Caloosahatchee River. Deep Lagoon Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns the uplands and either owns the submerged bottoms of the canals or has a legitimate claim to such ownership. The attorney who examined the title at the time of the 1997 conveyance testified that the canals are entirely landward of the original mean high water line, so that the then-owner excavated the canals out of privately owned upland. Thus, the attorney opined that the canal bottom is privately owned. Some question may exist as to the delineation of the historic mean high water line, especially regarding its location relative to the waterward edge of the red mangrove fringe, which DEP would consider part of the historic natural waterbody. There may be some question specifically concerning title to the bottom of the northernmost canal where it joins Deep Lagoon. However, the proof required of Applicant for present purposes is considerably short of the proof required to prove title, and the attorney's testimony, absent proof to the contrary, is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases. From north to south, Deep Lagoon Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Manatees and Boating The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. Water Quality The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one-day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. Original Permit There are three types of permits relevant to these cases. The first is a dredge and fill permit (sometimes referred to in the record as a wetland resource permit or water resource permit)(DAF permit). The second is a surface water management (sometimes referred to in the record as a management and storage of surface water (MSSW) permit or stormwater management permit)(SWM permit). The third is an environmental resource permit (ERP). Several years ago, responding to a mandate from the Legislature, DEP and the water management districts consolidated DAF permits, which historically were issued by DEP, and SWM permits, which historically were issued by the water management districts, into ERPs. At the time of this change, DEP adopted, within the jurisdictional areas of each water management district, certain of the rules of each district. In 1988, DEP issued a DAF permit to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips, with an additional 14,440 square feet of overwater decking, so as to raise its marina capacity to 150-174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. In general, the Original Permit authorizes Applicant to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The record contains various references to "MLW" or "mean low water," "MHW" or "mean high water," and "NGVD" or "National Geodetic Vertical Datum." The drawings attached to the Original Permit state that MHW equals 0.96 feet NGVD and MLW equals about 0.40 feet NGVD. The Original Permit authorizes activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposes several requirements designed "to ensure a net improvement in water quality." Among these requirements is that Applicant must obtain the ERP that is the subject of DOAH Case No. 98-5409 (New Permit). Specific Condition 5 states: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. [As cited, this subparagraph contains modifications stated in a letter dated March 26, 1997, from DEP to Applicant's predecessor in interest.] Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addresses the phasing of occupancy of the wet slips. Specific Condition 8 provides: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. * * * Specific Condition 11 adds: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 requires the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibits liveaboards at the marina. Specific Condition 15 adds various manatee-protection provisions. Plan Views C and D, which are part of the Original Permit, depict submerged bottom elevations for the north and central canals, as well as from the south canal at its intersection with the central canal. Dated August 30, 1995, these "existing" bottom elevations across the mouth of the north canal are about -7, -8, and -4 feet (presumably MLW; see second note to Plan View B). The western two-thirds of the north canal passes over bottoms of about -6 feet MLW. Proceeding east, the bottom deepens to -7 to -9 feet MLW before it tapers up to -7, -6, and finally -3 feet MLW at the head; and the eastern third of the north canal passes over bottoms of about -7 feet MLW that tapers up to -6 feet and -3 feet MLW. The submerged bottom at the mouth of the central canal is about -8 to -9 feet MLW. The bottom drops to -6 to -10 feet MLW at the intersection with the south canal. Proceeding east, the bottom deepens slightly as it reaches the head, where it is -8 feet MLW. The submerged bottom of the south canal runs from -9 feet MLW at the intersection with the central canal and runs about 0.5 feet deeper at the head. Petitioner and others challenged the issuance of the Original Permit in 1988. The permit challengers appealed a final order granting the Original Permit and certifying, under the federal Clean Water Act, that state water quality standards were met. DEP premised its certification on the concept that water quality standards encompassed a net improvement in water quality of the poorly flushed canals. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the above-described 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the Original Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DEP's certification of the activity as in compliance the federal Clean Water Act. Following remand, DEP issued a final order issuing the Original Permit. On the certification issue, the final order revoked the earlier certification of compliance and, citing 33 United States Code Section 1341 as authority, waived certification as a precondition to federal permitting. Maintenance Dredging: DOAH Case No. 98-3901 Background The contentions of Petitioner and Intervenor as to maintenance dredging are: the proposed dredging exceeded what was necessary to restore the canals to original design specifications or original configurations; the proposed dredging exceeded the maximum depth allowable for maintenance dredging of canals; the work was not conducted in compliance with Section 370.12(2)(d), Florida Statutes; the spoil was not deposited on a self-contained upland site to prevent the escape of the spoil into waters of the state; and the dredge contractor did not use control devices and best management practices for erosion and sediment control to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter describes the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assures that Applicant's contractor will use turbidity curtains "around the dredging and spoil unloading operation" and advises that the contractor will unload the spoil "to the north peninsula upland area." The letter states that the dredging "will be to the design depth/existing canal center line depth of -7 NGVD," which was established by the Original Permit, and will be "done in conjunction with the required dredging under [Original Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divide the dredging into two areas. For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals (for the south canal, a portion running from the head along the northeast half of the canal) and then replace these materials with clean backfill material. This information is for background only, as the Original Permit authorized this contaminant dredging. For 4.84 acres, which run through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. The cross-sections for the north canal reveal relatively extensive dredging beyond the vegetation lines on both sides of the canal bottom. The dredging would extend up to, but not beyond, the edges of the prop roots of the mangroves on both sides of the canal bottom. The contours reveal variable, proposed slope profiles for the submerged sides of the canals, but the dredging would substantially steepen the submerged slopes of the north canal. It is difficult to estimate from the cross-sections the average depth and width to be dredged from the north canal, but it appears that the cross-sections proposed the removal of substantial spoil (an average of 4-6 feet) from areas from 20-40 feet from each side of the deepest point in the north canal. The dredging would alter the two most affected cross-sections, which are just inside the mouth of the north canal, by widening the deepest part of the canal bottom by 85 feet--from about 15 feet to about 100 feet. The drawings proposed much smaller alterations to the bottoms of the central and south canals: typically, spoil about 2 feet deep and 20 feet wide. All but one of the cross-sections revealed that spoil would be dredged only from one side of the deepest point. Additionally, the dredging in these canals would not involve any submerged vegetation; all but one of the canal sides was lined by existing seawalls. By letter dated March 13, 1998, DEP stated that it had determined that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement that the Applicant obtain an ERP. The letter warns that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter adds that DEP may revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provides a point of entry for persons whose substantial interests are affected by DEP's determination. Following receipt of DEP's letter acknowledging the exemption, Applicant's contractor proceeded to maintenance dredge the three canals. The dredging of the north canal took eight weeks. Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the Original Permit. As indicated in the March 3 letter and permitted in the Original Permit, the contaminant dredging took place at the dead-end heads of the north and central canals and along the northeast half of a slightly longer section of the south canal, starting from its dead-end head. In maintenance dredging the canals, Applicant's contractor did not exceed the specifications regarding depth and width stated in its March 3 letter. To the contrary, the contractor sometimes dredged slightly narrower or slightly shallower profiles than stated in the March 3 letter. For example, the contractor dredged the north canal to -6 feet NGVD (or -5.6 feet MLW), rather than -7 feet NGVD, as shown in the March 3 letter. The Depths, Widths, and Lengths of Dredging The March 3 letter asserts that -7 feet NGVD is the permitted elevation of the canal bottoms, pursuant to the Original Permit. This is incorrect in two respects. First, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect for all but the relatively small part of each canal that DEP has determined is contaminated. The Original Permit specifies design elevations for canal bottoms only in the contaminated area within each canal. Nothing in the Original Permit permits bottom elevations for any portion of the bottoms of the three canals outside of these three contaminated areas. Second, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect, even for the contaminated areas. The March 3 letter states -7 feet NGVD, but the Original Permit specifies bottom elevations, for contaminated areas only, of -7 feet MLW in the south and central canals and -6 feet MLW in the north canal. Thus, due to the differences between NGVD and MLW, the March 3 letter proposes dredging that would deepen the south and central canals by about five inches deeper than the depth permitted in the Original Permit and the north canal by one foot five inches deeper than the depth permitted in the Original Permit. Moreover, nothing in the record clearly establishes all aspects of the original design specifications of the three canals, whether permitted or not, or even all aspects of their original dredged configurations, if not permitted. There is no dispute concerning one aspect of the dredged configuration of the three canals: their lengths. Although there may be some dispute as to the original mean high water line near the mouths of the north and central canals, the original length of the canals is evident from the uplands that presently define them. As to the depth of the canals, although direct evidence is slight, Applicant has sufficiently proved indirectly the depths of the mouths of the canals pursuant to original design specifications or, if not designed, original configurations. The proved bottom elevations are -7 feet NGVD for each canal. Applicant proved these depths based on the prevailing elevations in Deep Lagoon in the vicinity of the mouths of the north and central canal and bottom elevations in areas of Deep Lagoon that are not prone to sedimentation. Additional proof of the bottom elevation of -7 feet NGVD at the mouths of the canals is present in the slightly higher permitted bottom elevations at the dead- ends of the north and central canals and landward portion of the south canal. There is some problem, though, with the proof of the depth of the canal bottoms between their mouths and heads (or, for the south canal, its landward portion of known contamination). Although the problem of the depth of the canals between their heads and mouths might be resolved by inferring a constant bottom elevation change from the deeper mouth to the shallower head, an unresolveable issue remains: the width of this maximum depth. As already noted, without deepening the deepest part of either cross-section, the contractor widened the deepest points along two cross-sections by 85 feet each. In terms of navigability and environmental impact, the width of the maximum depth of a canal is as important as its maximum depth. As to the width of the lowest bottom elevations of the canals, Applicant has produced no proof of original design specifications or, if not designed, original configurations. Nor has Applicant produced indirect proof of historic widths. Nothing in the record supports an inference that Applicant's predecessor in interest originally dredged the canal bottoms as wide as Applicant "maintenance" dredged them under the claimed exemption. Nothing in the record supports an inference that Applicant's predecessor geometrically dredged the canals so that their sides were perpendicular to their bottoms. Nothing in the record describes a sedimentation problem that might have narrowed the canals by such an extent that the dredging of the present widths, especially in the north canal, would be restorative. Nothing in the record even suggests that the original motive in dredging was navigability, which might have yielded relatively wide canal bottoms, versus upland fill, which would yield canal bottoms as wide as needed, not for navigability, but for uplands- creation. After consideration of all the evidence, no evidence supports a finding that the proposed dredging profiles, in terms of the widening of the areas of lowest elevation in each canal bottom, bear any resemblance whatsoever to the original canal profiles, as originally (or at any later point) designed or, if not designed, as originally (or at any later point) configured. It is at least as likely as not that this is the first time that these canal bottoms, especially the north canal bottom, have ever been so wide at any bottom elevation approaching -7 feet NGVD. There is simply no notion of restoration or maintenance in the dredging that produced these new bottom profiles for these three canals. Transforming MLW to NGVD, -5 feet MLW is -4.6 feet NGVD. All proposed and actual maintenance dredging in the three canals dredged the canal bottoms to elevations lower than -5 feet MLW (or -4.6 feet NGVD), despite the absence of any previous permit for construction or maintenance of the canal from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers. Impact of Dredging on Manatees and Spoil Containment Prior to dredging, Applicant deployed turbidity curtains around the mouths of the two canals that discharge directly into Deep Lagoon. In this case, the turbidity curtains performed two functions. They contained turbidity and resuspended bottom contaminants within the mixing zone behind (or landward of) the curtains, and they excluded manatees from the dangerous area behind the curtains where the dredging was taking place. Petitioner and Intervenor object to the use of the turbidity curtains on two general grounds. First, they claim that the curtains failed to contain turbidity and resuspended contaminants from escaping the mixing zone. Second, they claim that the curtains adversely affected manatees. As executed, the maintenance dredging did not result in the release of turbidity or resuspended contaminants outside of the mixing zone due to the use of turbidity curtains. Applicant's contractor ensured that the curtains extended from the water surface to the canal bottom and sufficiently on the sides to prevent the escape of turbidity or resuspended contaminants. Although the March 3 letter did not indicate where the contractor would deploy the turbidity curtains, the important point, in retrospect, is that the contractor properly deployed the curtains. There is some question whether turbidity or resuspended contaminants flowed across the mangrove fringe and into the Iona Drainage District ditch. Applicant's witness testified that water flows across the fringe only during the highest three or four tides per month. Petitioner and Intervenor's witness testified that water flows across the fringe as often as twice per day. The actual frequency is likely somewhere between these two extremes, but, regardless of the frequency, there is insufficient evidence to find that any turbidity or resuspended contaminants flowed from the north canal into the Iona Drainage District ditch. Nor did the deployment of the turbidity curtains injure, harm, possess, annoy, molest, harass, or disturb any manatees. Applicant and its contractor carefully checked each canal for manatees before raising the turbidity curtains at the mouth of each canal, so as not to trap any manatees in the area behind the curtains. By ensuring that the curtains extended to the canal bottom and extended fully from side to side, they ensured that the curtains excluded manatees during the dredging. There is no evidence that a manatee could have entered the north canal from the Iona Drainage District ditch by crossing the red mangrove fringe; any breaks in the fringe were obstructed by prop roots that prevented even a kayaker from crossing the fringe without portaging. Applicant and its contractor checked for manatees during dredging operations. Petitioner and Intervenor contend that the mere presence of the turbidity curtains in an area frequented by manatees adversely affected the animals. However, this argument elevates a speculative concern with a manatee's response to encountering an obstruction in its normal path over the practical purpose of curtains in physically obstructing the animal so as to prevent it from entering the dangerous area in which the dredge is operating, as well as the unhealthy area of turbidity and resuspended contaminants in the mixing zone. Under the circumstances, the use of the turbidity curtains to obstruct the manatees from visiting the dredging site or mixing zone did not adversely affect the manatees. In general, there is no evidence of any actual injury or harm to any manatees in the course of the dredging or the preparation for the dredging, including the deployment of the turbidity curtains. Petitioner and Intervenor offered evidence that maintenance dredging would result in more and larger boats and deterioration of water quality, which would both injure the manatees. However, as noted in the conclusions of law, the Administrative Law Judge excluded from DOAH Case No. 98-3901 such evidence concerning long-term impacts upon the manatees following the dredging. As for spoil containment, Applicant's contractor segregated the contaminated spoil from noncontaminated spoil by placing the contaminated spoil in a lined pit in the uplands. The contractor also brought onto the uplands clean fill mined from a sand quarry for backfilling into the dredged contaminated areas. There is evidence of the clean fill subsiding from its upland storage site and entering the canal waters in the mixing zone. Partly, this occurred during the loading of the barge, which transported the clean fill to the dead-end heads of the canals where the fill was placed over the newly dredged bottoms. The fill escaped into the water at a location about 100 feet long along the north seawall of the central canal, but the evidence does not establish whether this location was within the contaminated area at the head of the canal or whether the maintenance or contaminant dredging had already taken place. If the fill subsided into the water inside of the contaminated head of the south canal and the subsidence occurred prior to the contaminant dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water inside the contaminated head of the south canal and the subsidence occurred after the contaminant dredging, the subsidence was harmless because the contractor intended to add the fill at this location. If the fill subsided into the water outside of the contaminated head of the south canal and the subsidence occurred prior to maintenance dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water outside the contaminated head of the south canal and the subsidence occurred after the maintenance dredging, the subsidence was harmless because it restored the canal bottom to a higher elevation following the dredging to an excessively low elevation. The subsidence of the clean fill into the water along the north side of the central canal is the only material that entered the water from the uplands during the dredging. Specifically, there is no evidence of dredged spoil entering the water from the uplands during or after the dredging. There is also no evidence that the maintenance dredging significantly impacted previously undisturbed natural areas. There is no evidence of such areas within the vicinity of Deep Lagoon Marina. New Permit: DOAH Case No. 98-5409 New Permit Seeking to satisfy certain of the requirements of Original Permit Specific Condition 5, Applicant filed with DEP, on December 10, 1997, an application for an ERP and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. Prior to its reformulation as an ERP, the New Permit sought by Applicant would have been a SWM permit. The application notes that the general upland elevation is 5 feet NGVD and that stormwater runoff presently sheetflows directly to adjacent waterways without any treatment. During the application process, Applicant's engineer Christopher Wright, submitted a letter dated February 27, 1998, to Jack Myers, who is a Professional Engineer II for DEP. In response to a request from DEP for a "written procedure . . . to assure the proper functioning of the proposed . . . system," the letter states: Since the system is not designed as a retention system and does not rely upon infiltration to operate properly[,] operation and maintenance is minimal. Items that will need regular maintenance are limited to removal of silt and debris from the bottom of the drainage structures and the bleed down orifice of the control structure. A maintenance and inspection schedule has been included in this re-submittal as part of Exhibit 14. In relevant part, Exhibit 14 consists of a document provided Mr. Wright from the manufacturer of the components of the surface water management system. The document states that the manufacturer "recommends that the landowner use this schedule for periodic system maintenance . . .." The document lists 16 sediment-control items, but it is unclear whether all of them are incorporated into the proposed system. Four items, including sediment basins, require inspections quarterly or after "large storm events" and maintenance consisting of the removal of sediment; the "water quality inlet" requires inspections quarterly and maintenance consisting of "pump[ing] or vacuum[ing]"; the "maximizer settling chamber" requires inspection biannually and maintenance consisting of "vacuum[ing] or inject[ing] water, suspend silt and pump chamber"; and the "chamber" requires inspection annually and the same maintenance as the maximizer settling chamber. The proposed system includes the water quality inlet and one of the two types of chambers. By Notice of Intent to Issue dated November 5, 1998, DEP provided notice of its intent to issue the New Permit and certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code Section 1341. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the Original Permit, DEP again waived state water quality certification. This waiver is consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. The notices of intent (collectively, NOI) recite the recent permitting history of the marina. This history includes the Original Permit, a since-expired MSSW permit issued in 1988 by SFWMD, and then-pending requests--apparently all since granted--to revise the Original Permit by replacing the flushing canal with culverts, relocating a travel lift from the main canal to the north canal, and adding liveaboards to the marina. (Although mentioned below, these revisions, in and of themselves, do not determine the outcome of DOAH Case No. 98-5409.) Reviewing the proposed development for the site, the NOI states that the northerly part of the project would contain an indoor dry boat storage barn, a marina service operation consisting of a ship store and miscellaneous buildings, a harbor master building, an upgraded fueling facility, a parts and service center, a restaurant, retail and commercial facilities, and paved parking areas. The southerly part of the project would contain a new indoor dry boat storage barn, a boat dealership building, and paved parking areas in place of the existing buildings. The NOI states that the proposed water quality treatment system would comprise dry detention systems of several underground vaults with an overall capacity based on the total impervious area, including roofs, receiving 2.5 inches of rain times the percentage of imperviousness. Given the relatively high imperviousness of the finished development, this recommended order considers the percentage of imperviousness to be 100, but ignores the extent to which the post-development pervious surfaces would absorb any rainfall. For storms producing up to 2.5 inches of runoff, the proposed surface water management system, of which the underground vaults are a part, would trap the runoff and provide treatment, as sufficiently sized contaminants settled into the bottom of the vaults. Because the vaults have unenclosed bottoms, the proposed system would provide incidental additional treatment by allowing stormwater to percolate through the ground and into the water table. However, the system is essentially a dry detention system, and volumetric calculations of system capacity properly ignored the incidental treatment available through percolation into the water table. The New Permit notes that the wet season water table is 1.2 feet NGVD, and the bottom of the dry detention system is 2.5 feet NGVD. This relatively thin layer of soil probably explains why DEP's volumetric calculations ignored the treatment potential offered by percolation. The relatively high water table raises the possibility, especially if Applicant does not frequently remove the settled contaminants, that the proposed system could cause groundwater contamination after the thin layer of soil is saturated with contaminants. In any event, the system is not designed for the elimination of the settled contaminants through percolation. The treatment system for the boat wash areas would be self-contained, loop-recycle systems that would permit the separation of oil and free-settling solids prior to reuse. However, the NOI warns that, "during heavy storm events"-- probably again referring to more than 2.5 inches of runoff--the loop-recycle systems would release untreated water to one of the underground vaults, which would, in turn, release the untreated water into the canals. Due to the location of the boat wash areas, the receiving waters would probably be the north canal. As reflected in the drawings and the testimony of Mr. Wright, the surface water management system would discharge at three points: two in the north canal and one in the south canal. (Vol. I, p. 206; future references to the Transcript shall cite only the volume and page as, for example, Vol. I, p. 206). 67. The NOI concludes that Applicant has provided affirmative reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder, including the Conditions for Issuance or Additional Conditions for Issuance of an environmental resource permit, pursuant to Part IV of Chapter 373, F.S., Chapter 62-330, and Sections SFWMD--40E-4.301 and 40E-4.302, F.A.C. The construction and operation of the activity will not result in violations of water quality standards and will not degrade ambient water quality in Outstanding Florida Waters pursuant to Section 62-4.242, F.A.C. The Applicant has also demonstrated that the construction of the activity, including a consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest, pursuant to Section 373.414(1)(a), F.S. However, the design capacity of the proposed surface water management system raises serious questions concerning the water quality of the discharges into the canals. Mr. Wright initially testified that the surface water management system would be over-taxed by "an extreme storm event, probably a 25- year storm event . . .." (Vol. I, pp. 208-09). The record contains no evidence of the frequency of the storm event that produces 2.5 inches of runoff for the relatively impervious post- development uplands; the record contains no evidence even of the frequency of the storm event that produces 2.5 inches of rainfall. According to Mr. Wright, the 25-year storm would typically produce 8-10 inches of rain. (Vol. I, pp. 223 and 233). As already noted, the relatively large area of imperviousness following upland development and the relative imperviousness of the upland soils present at the site suggest that the runoff will be a relatively large percentage of the rainfall produced by any given storm event. It thus appears that the design capacity of the system is for a storm substantially smaller and substantially more frequent than the 25-year storm. Attached to the NOI is a draft of the New Permit, which contains numerous specific conditions and conforms in all respects with the NOI. Omitting any mention of SFWMD's Basis of Review, the New Permit addresses, among other things, the operation, inspection, and maintenance of the components of the proposed system. As set forth in the testimony of Michael Bateman, who is a Professional Engineer III and statewide stormwater coordinator for DEP, the surface water management system's operation depends on periodic pumping of the "thick, fine sediment," which appears to be a "cross between mud and sand" and will be laden with oil, grease, metals, and other contaminants. (Vol. II, p. 66). However, contrary to Mr. Bateman's assurance that the New Permit requires the periodic pumping or removal of contaminants that have precipitated out of the runoff in the dry detention system and dropped to the bottom sediment (Vol. II, p. 20), neither the NOI nor the New Permit requires, in clear and enforceable language, the periodic removal of settled solids from the underground vaults or their manner of disposal. New Permit Specific Condition 8 requires that Applicant maintain the boat wash area in "functioning condition," although specific inspection and maintenance requirements are omitted from the New Permit. New Permit Specific Condition 7 requires that Applicant "inspect and clean" all stormwater inlets "as necessary, at least once a month and after all large storm events," although the New Permit fails to specify that cleaning shall be by either pumping or vacuuming. By contrast to the marginally adequate inspection and maintenance provisions applicable to the boat wash area (inspections are required in Specific Condition 6, cited below) and stormwater inlets, the New Permit completely fails to specify enforceable inspection and maintenance requirements for the underground vaults. New Permit Specific Condition 6 addresses the operation of the vault as follows: Upon completion of the construction of the stormwater collection and underground vault (Infiltrator) systems and on an annual basis thereafter by September 30 of each year, the Permittee shall submit reports to the Department as to the storage/treatment volume adequacy of the permitted system. The reports shall also include, but not be limited to, the condition of stormwater inlets and control structures as to silt and debris removal and the condition of the inlet wire mesh screens to function properly. The boat wash down areas shall be inspected for proper operation, i.e., no signs of wash water overflows from the containment area, condition of the containment area curbing, etc. Such reports shall include proposal of technique and schedule for the maintenance and/or repair of any deficiencies noted and shall be signed and sealed by a Florida registered Professional Engineer. A report of compliance with the aforementioned proposal shall be submitted by the Professional Engineer to the Department upon completion of the proposed work which shall be accomplished within three months of the initial report for each year. New Permit Specific Condition 6 requires annual reports concerning the sufficiency of the capacity of the underground vaults (first sentence), annual reports of the status of silt- and debris-removal from the inlets and control structures and the condition of the inlet wire mesh screens (second sentence), inspection at no stated intervals of the boat wash area (third sentence), and annual reports with suggestions of maintenance schedules and repairs for the items mentioned in the first two sentences (fourth sentence). New Permit Specific Condition 6 promises only the preparation of a maintenance schedule at some point in the future. Failing to supply an enforceable inspection and maintenance program, Specific Condition 6 indicates that Applicant shall consider in the future techniques and scheduling of maintenance, presumably based on the report concerning system capacity. Such a requirement may or may not impose upon Applicant an enforceable obligation to adopt an enforceable inspection and maintenance program in the future, but it does not do so now. There is no reason why the New Permit should not impose upon Applicant an initial, enforceable inspection and maintenance program incorporating, for example, the clear and enforceable requirements that Applicant inspect all of the underground vaults no less frequently that once (or twice, if this is the applicable recommendation of the manufacturer) annually and, at clearly specified intervals, remove the sediments by resuspending the sediments in the water, pumping out the water, and disposing of the effluent and sediments so they do not reenter waters of the state. Although the record does not disclose such requirements, Applicant could possibly find manufacturer's recommendations for the boat wash components and incorporate them into an enforceable inspection and maintenance program more detailed than that contained in Specific Condition 8. However, for the reasons noted below, water quality considerations require a substantial strengthening of such a program beyond what is set forth in this paragraph as otherwise acceptable. At present, the bottom line on inspection and maintenance is simple: the New Permit does not even incorporate by reference the manufacturer's recommended inspection and maintenance schedule, which Mr. Wright provided to Mr. Myers. Nor was this shortcoming of the New Permit in its treatment of inspection and maintenance necessarily missed by Mr. Wright. He testified that he submitted to DEP the manufacturer's maintenance program (Vol. I, p. 205), but when asked, on direct, if the "permit in any way incorporate[s] the commitment in your application to this maintenance?" Mr. Wright candidly replied, "That I don't know." (Vol. I, p. 206). Satisfaction of Basis of Review Section 5 Basis of Review Section 5--specifically Section 5.2.1(a)--imposes the "volumetric" requirement of 2.5 inches times the percentage of imperviousness, as discussed above and in the conclusions of law. Petitioner does not dispute Applicant's compliance with this volumetric requirement, and the record amply demonstrates such compliance. Applicability of Basis of Review Section 4 The main issues in this case are whether the environmental and water quality requirements of Basis of Review Section 4 apply to the direct, secondary, and cumulative impacts of the proposed activity. Because the record lacks any indication of other relevant pending or vested permits, without which, as noted in the conclusions of law, one cannot assess cumulative impacts, the remainder of the findings of fact will not discuss cumulative impacts, although, to some extent, increased boating pressure constitutes a secondary impact and a cumulative impact. Without regard to the differences between direct and secondary impacts, DEP has taken the position in this case that it could lawfully issue the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5 and without consideration of the requirements of Basis of Review Section 4. In large part, DEP's witnesses justify this position by reliance on the historic differences between DAF permits and SWM permits and the fact that the New Permit is a former-SWM ERP. As discussed in detail in the conclusions of law, the Basis of Review imposes different requirements upon former-DAF and former-SWM ERPs, although the Basis of Review does not refer to DAF or SWM permits by their former names. The identifying language used in the Basis of Review for former-DAF ERPs is "regulated activity" "located in, on, or over surface waters or wetlands." References to "regulated activity" without the qualifying clause indicate that the following requirement applies to former-DAF ERPs and former-SWM ERPs. Several witnesses for DEP and Applicant testified that Applicant was entitled to the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5. For example, Mr. Wright testified that the water quality requirements for the New Permit required only a "cookbook calculation" to determine volume. (Vol. I, p. 204). Agreeing with a question that analysis of the water quality portion of the system requires "simply a straightforward mathematical calculation," Mr. Wright testified that the quality of discharged water, following treatment, will comply with state water quality standards in storms producing no more than 2.5 inches of runoff. (Vol. I, pp. 210-11). When asked to explain his answer, Mr. Wright testified, "It's kind of an implied situation, in that if you follow the guidelines that you are required to follow with respect to the calculations of water quality, that the end product is going to be in compliance with state standards." (Vol. I, p. 211). DEP witnesses agreed with Mr. Wright's analysis. For instance, Mr. Bateman testified, "The stormwater portion of the Basis of Review gets at that question [meeting water quality standards] by stating, 'if you follow the design criteria in the basis, you are presumed to meet water quality standards.'" (Vol. II, p. 40). Mr. John Iglehart, the program administrator for DEP's South District Office in Fort Myers, testified on the same point: "if . . . you meet the criteria, the engineering criteria, than you have met the presumption that you meet the rule." (Vol. III, p. 52). Mr. Myers also agreed, testifying, "with the stormwater management system, it's for the most part, let's say, fairly cut and dried as far as meeting criteria that is established within these rules and Basis of Review." (Vol. III, p. 144). He added: "Since the criteria for reviewing stormwater management systems and the discharge is based upon a presumed compliance with stormwater criteria and with state water quality, it is presumed it [the proposed system] does meet it." (Vol. III, p. 148). Mr. Bateman explained the historic basis for the water quality presumption given surface water management systems that meet the volumetric requirements: the ERP is a combination of the surface water management rules and the environmental . . ., the dredge-and-fill, and they didn't merge, they didn't marry very well in certain areas. In stormwater we look at--it's a technology- based criteria. We say, "If you build it this way, treat 80 percent of the average annual pollutant load, we're going to give you the permit on the presumption that you're doing the best you can. You're going to meet standards. Once you get into the wetlands, we take--we put on whole new sets of glasses. ALJ: Are you saying that the old dredge-and- fill is more performance-based, and the old MSSW is more technology-based, in that if you've put in the required technology, you've done your job? WITNESS: That is--yes. Dredge-and-fill is a more case by case. We look at the water quality. We look at ambient conditions. We look at hydrographics [here, largely tidal flushing]. It's more like a waste load allocation in that we're very specific. In stormwater, we can't afford to be. MS. HOLMES: So what you're saying is you can't point to the specific rule provision or regulation that excludes these criteria from surface water management systems? WITNESS: Well, you have to read [Basis of Review] Section 4 as a whole. 4.1 is specific to wetlands and other surface waters. 4.2 is environmental review. I mean, if you look at the thing in total, and the--and I realize it's confusing. But these rules are exactly the same in all the water management districts. They were developed together as the wetland criteria, the new dredge-and-fill criteria. They're exactly the same. The stormwater rules of all the [water management districts] is all different. That is for another day, making those all consistent. So these environmental wetland- type dredge-and-fill criteria are all the same, and they refer to in-water impact. [All references in the transcript to "end water" should have been "in-water."] ALJ: What do you mean by that term, "in- water impact?" WITNESS: In other words, dredge-and-fill impact. Construct and--I can't-- MS. HOLMES: May I continue, then? ALJ: Let him answer. What were you going to say? WITNESS: I think it takes a little knowledge of how these [rules] developed to know how they're applied, unfortunately. In other water management districts, it's clearer that these are in-water impacts. (Vol. II, pp. 57-59). In testifying to the exclusivity of the volumetric requirements in Basis of Review Section 5, with respect to former-SWM ERPs, these witnesses likewise opined that the secondary-impact analysis required in Basis of Review Section 4 also was inapplicable to the New Permit. For example, after testifying both ways on the necessity of considering secondary impacts in issuing former-SWM ERPs, Mr. Bateman concluded, "I'm not sure that [the requirement of considering secondary impacts] applies in this case. Certainty the rules apply, I mean, the rules apply. But certain rules are not applicable in this particular instance. I mean, I'm trying to think of a secondary impact associated with stormwater system, and it's difficult for me to do so." (Vol. II, p. 45). Mr. Bateman then testified that DEP did not consider such secondary impacts, as additional boat traffic, and probably did not consider cumulative impacts, such as other marinas. (Vol. II, pp. 51-52). In response to a question asking to what extent DEP considered post-development inputs of contaminants, such as heavy metals, when issuing a former-SWM ERP, Mr. Bateman testified: I have to tell you, very little. I mean, we--stormwater is pretty black and white. The link to secondary and cumulative impact is generally associated with in-water impact. And I realize the line is a little grey here. When we build a Wal-Mart, we don't think about how many cars it's going to put on [U.S. Route] 41 and what the impact might be to an adjacent lake. We just don't. It would be a little burdensome. In this case, I mean, it's a little greyer. (Vol. II, p. 47). Mr. Bateman was then asked to compare the relative impacts from a vacant, but developed, upland without a surface water management system with a proposed activity that would add a surface water management system to facilitate an intensification of land uses on the site so as to add new contaminants to the runoff. Mr. Bateman testified that DEP would apply only the volumetric requirement and not address the complex issue of weighing the potential environmental benefit of a new surface water system against the potential environmental detriment of contaminant loading (at least in storm events greater than the design storm event). Mr. Bateman explained: "The way it works, it is not a water quality-based standard. In other words, we don't go in and say it's so many pounds [of contaminants] per acre per year now. We're going to make it this many pounds per acre per year, and look at it in a detailed fashion. We do the [Best Management Practices], retain an inch and you're there." (Vol. II, p. 49). Agreeing with Mr. Bateman that DEP was not required to consider secondary impacts resulting from the regulated activity, Mr. Iglehart testified: "It's our thought that we don't really look at secondary and cumulative impacts for the stormwater permit. . . . If it [the former-SWM ERP application] meets the criteria, it gets the permit. That--in the ERP, the previous dredge-and-fill side looks at the secondary and cumulative. The stormwater just--like Mr. Bateman testified." (Vol. III, p. 52). After some ambivalence, Mr. Myers also testified that DEP was not required to consider secondary impacts for the New Permit: WITNESS: . . . I did not or I do not consider secondary impacts for the stormwater management system. MS. HOLMES: So, what about cumulative impacts? WITNESS: No. MS. HOLMES: So it's your testimony that you did not review secondary and cumulative impacts-- WITNESS: That's correct. MS. HOLMES: --of this system? WITNESS: What I can say is that the existing system out there, from what I can tell, does not have any stormwater treatment. Basically, it's running off into the canals. The proposed project will provide stormwater treatment for, not only the new construction, which is proposed mainly on the northern peninsula, but it is also provided for that area which is now existing, it will provide stormwater treatment for that area also. And I consider that--I don't consider that to be a secondary impact. I see it as an offsetting improvement to potential as far as the water quality. (Vol. III, pp. 144-45). As discussed in detail in the conclusions of law, these witnesses have misread the provisions of the Basis of Review applicable to the New Permit. As noted in the conclusions of law, the requirements in the Basis of Review of analysis of secondary and cumulative impacts upon water quality and manatees are not limited to in-water or former-DAF activities. Satisfaction of Basis of Review Section 4 Direct vs. Secondary Impacts In terms of construction, the direct impacts of the proposed surface water management system are negligible. Nothing in the record suggests that the construction of the proposed system will violate any of the requirements of Basis of Review Section 4. In terms of maintenance, the direct impacts of the proposed surface water management system are negligible, except for the omission from the New Permit of any provision for the safe disposition of the contaminant removed from the underground vaults. However, the maintenance issues are better treated with the operation issues. In terms of operation, the direct impacts of the proposed surface water management system are substantial. As discussed in the conclusions of law, the analysis of the direct impacts of the operation of the proposed system is limited to the current level of uplands and marine activity at the marina. These direct impacts involve two aspects of the operation of the proposed system: the design capacity and the inspection and maintenance (including disposal of sediment) of the system components. As discussed in the conclusions of law, the secondary impacts involve the intended and reasonably expected uses of the proposed system. These impacts consist of the increased uplands and marine uses associated with the addition of 100 new wet slips, 227 new dry slips, and 115,000 square feet of building space with a restaurant. Apart from their contention that Applicant is required only to satisfy the volumetric requirements of Basis of Review Section 5, Applicant and DEP have contended that Petitioner is estopped from raising direct and secondary impacts because DEP considered these impacts when issuing the Original Permit four years ago. Perhaps the most obvious factual problem with this contention is that it ignores that the New Permit authorizes, for the first time, the construction of the 227 new dry slips and 115,000 square feet of buildings. As counsel for DEP pointed out during the hearing, the Original Permit was a DAF permit and did not extend to these upland uses. The contention that DEP considered these developments as secondary impacts because they were shown on drawings attached to the Original Permit gives too much significance to nonjurisdictional background items shown in drawings without corresponding textual analysis. More generally, the efforts of DEP and Applicant to restrict the scope of this case rely on a misreading of Original Permit Specific Condition 5. The purpose of Original Permit Specific Condition 5 is to "ensure a net improvement to water quality." The purpose of each of the requirements under Specific Condition 5 is to achieve an actual, not presumptive, improvement in water quality. Prohibiting the issuing agency from fully analyzing the direct and secondary impacts of the proposed surface water management system reduces the likelihood that the ensuing New Permit will perform its role, as envisioned in the Original Permit, of helping to achieve an actual, net improvement in water quality. The concept of a "net" improvement is exactly what DEP's witnesses disclaim having done in this case--balancing the potential environmental benefits to the water resources from the proposed surface water management system against the potential environmental detriments to the water resources from the development and land uses that are intended or reasonably expected to result from the construction of the proposed system. The failure to analyze the net gain or loss inherent in this important provision of Specific Condition 5.B undermines the likelihood that the effect of Specific Condition 5.B--a net improvement in water quality--will be achieved. It is therefore illogical to rely on Specific Condition 5.B, as DEP does, as authority for an artificially constrained analysis of the eligibility of the proposed system for a former-SWM ERP. The estoppel argument also ignores that Original Permit Specific Condition 5.B anticipated that the issuing agency would be SFWMD. It is unclear how the parties to the Original Permit, including DEP, would bind what appeared at the time to have to be SFWMD in the exercise of its lawful authority in issuing SWMs or former-SWM ERPs. The attempt of Applicant and DEP trying to limit the scope of this case also overlooks numerous changed circumstances since the issuance of the Original Permit. Changed circumstances militating in favor of the comprehensive analysis mandated for former-SWM ERPs include: increased trends in manatee mortality; increased boating pressure; persistent water quality violations in terms of dissolved oxygen, copper, and total coliform bacteria; a dramatic deterioration in dissolved oxygen levels; the initial presentation for environmental permitting of the previously unpermitted 227 additional dry slips and the 115,000 square feet of buildings; the current canal bottom profiles resulting from excessively deep maintenance dredging; the absence of an updated flushing study; and the failure to dredge the flushing canal required by the Original Permit. Disregarding the environmental and water quality requirements of Basis of Review Section 4 in this case would thus repudiate Specific Condition 5.B, especially when, among other things, the water quality of the canals has deteriorated dramatically with respect to dissolved oxygen, the canals continue to suffer from serious copper violations, the canals were recently maintenance dredged to excessive depths, no flushing study has examined these subsequent developments, and the intended uses to be facilitated by the New Permit more than double the capacity of the existing marina. 2. Water Quality The direct impacts of the proposed surface water management system, based on current levels of uplands and marine use at the marina, would adversely affect the quality of the receiving waters, in violation of Basis of Review Section 4.1.1(c). The excessively increased depths of the canals, especially with respect to the substantially widened depths of the north canal, raise the potential of water quality violations, especially given the history of this site. Potential sources of contaminants exist today in the canal bottoms, uplands, and marine activity associated with the marina. The potential for water quality violations, especially with respect to dissolved oxygen, increases in the absence of an updated flushing study. The potential also increases with the introduction of liveaboards and failure to dredge the flushing canal (or its replacement with culverts). In the face of these current threats to water quality, the New Permit fails to require a system with adequate capacity to accommodate fairly frequent storm events and fails to impose clear and enforceable inspection, maintenance, and disposal requirements for the underground vaults. Although better, the inspection and maintenance requirements for the stormwater inlets and boat wash area unnecessarily present enforcement problems. The effect of these failures in design capacity and inspection and maintenance is synergistic. Deficiencies in vault capacity mean that storms will more frequently resuspend the settled contaminants in the vaults and flush them out into the canal waters. Excessively long maintenance intervals and poor maintenance procedures will increase the volume of contaminants available to be flushed out into the canal waters. Improper disposition of removed contaminants endangers other water resources. The introduction of untreated or inadequately treated water into the canals means the introduction of two substances that will contribute to the current water quality violations. Organics, such as from the boat wash operations and other uplands uses, will raise biochemical oxygen demand, which will accelerate the deterioration in dissolved oxygen levels. Copper removed during boat wash operations, leaching from painted hulls, or remaining in the uplands from past marina operations will also enter the canals in this fashion. On these facts, Applicant has failed to provide reasonable assurance that the operation of the proposed surface water management system will not result, in the long-term, in water quality violations. Applicant has failed to demonstrate that the operation of the proposed system, even as limited to existing levels of use of the uplands and marine waters, will not contribute to existing violations of dissolved oxygen and copper levels. Obviously, the situation is exacerbated by consideration of the uses intended and reasonably expected to follow the construction of the proposed system. With the growing popularity of boating in Lee County over the past 20 years, it is reasonably likely that an expanded marina operation, located close to downtown Fort Myers, will successfully market itself. Thus, many more boats will use the marina because it will offer more wet and dry slips and new buildings, including a restaurant, and the pressure on water quality will intensify with the intensification of these uses. The added intensity of upland and marine uses will contribute to the above-described violations of water quality standards for dissolved oxygen and copper, probably will contribute to the above-described violations of water quality standards for total coliform bacteria and lead, and may contribute to the recurrence of water quality violations for other parameters for which the canals were previously in violation. On these facts, Applicant has failed to provide reasonable assurance that the direct and secondary impacts of the proposed system will not adversely affect the water quality of the canals. 3. Manatees and Manatee Habitat By letter dated June 26, 1998, from a DEP Environmental Specialist to a DEP permitting employee, the Environmental Specialist provided an initial opinion concerning the revisions that Applicant sought to the Original Permit so as to allow liveaboards, replace the flushing canal with culverts, and relocate the travel lift to the north canal. The letter accompanies a Manatee Impact Review Report, also dated June 26, 1998. The Manatee Impact Review Report notes the pending application for the New Permit. The report considers at length the extent of manatee use of Deep Lagoon and the nearby portions of the Caloosahatchee River. The Manatee Impact Review Report states: This project [i.e., the relocation of the boat lift to the north canal, addition of liveaboards, and conversion of the flushing canal to flushing culverts] is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project, as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft-related injuries, disturbance contributing to stress, and alteration of natural behaviors. The secondary impacts expected with this project are compounded by the cumulative secondary effects from other facilities in this system. Just south of this project site, another marina was recently constructed (Sun City Corporation aka Gulf Harbor Marina aka River's Edge), which has approximately 190 wet slips. Since October 1995, there have been seven watercraft-related deaths within five miles of this project location. The Gulf Harbor Marina was constructed in late 1995, and was almost fully occupied during 1996. Watercraft-related manatee deaths increased significantly during this time, with one in December 1995, two in 1996 and four in 1997. Additional on-water enforcement by the City of Cape Coral was considered part of the offsetting measures to address the expected impacts to manatees from increases in boat density. This offsetting measure, however, appears to be ineffectual at this time. The Manatee Impact Review Report concludes that the north canal and its mouth are "particularly important" for manatee because of the availability of freshwater from the adjoining Iona Drainage District ditch immediately north of the north canal and "historical use indicates that this area appears to be the most frequently used area in the Deep Lagoon system." The report cautions that the relocated travel lift may significantly increase the number of boats in the little-used north canal, whose narrowness, coupled with moored, large boats on the one side, "would produce significant, adverse impacts to the endangered manatee." The Manatee Impact Review Report finds that Applicant failed to provide reasonable assurance regarding the conservation of fish and wildlife, unless several new conditions were added. These conditions include prohibitions against boat launching along the shoreline of the north canal and the addition of manatee-exclusion grating to any culverts that may be approved. As defined in this recommended order, the direct impacts upon manatees from the proposed surface water management system would be moderate. As defined in this recommended order, direct impacts would not involve any increase in boating pressure. The greater impacts would be in the deterioration of two measures of water quality that are crucial to manatees: dissolved oxygen and copper. However, the secondary impacts are dramatic, not de minimis, and arise from the intended and reasonably expected uses to follow from the construction of the proposed surface water management system. The increased boat traffic intended and reasonably expected from more than doubling the marina capacity, through the addition of 100 wet slips and 227 dry slips, and the addition of 115,000 square feet of buildings, including a restaurant, would adversely impact the value of functions provided to manatees by the affected surface waters. Manatee mortality has increased as boat traffic has increased. Substantial numbers of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. On these facts, Applicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species. 4. Minimization and Mitigation Due to their contention that Basis of Review Section 4 does not apply to this case, DEP and Applicant did not demonstrate compliance with the minimization and mitigation sections of Basis of Review Section 4. However, the record supports the possibility of design alternatives for water quality impacts, if not manatee impacts, that DEP and Applicant must consider before reanalyzing the direct, secondary, and cumulative impacts of the proposed system on the water resources and, if appropriate, potential mitigation options. Mr. Bateman testified that SFWMD is the only district that permits surface water management systems relying on the settling out of sediments in the bottom of a storage-type detention system. (Vol. II, p. 18). He explained that other districts rely on systems that, taking advantage of the three to four feet typically minimally available between ground surface and the top of the water table, retain the runoff and allow it to percolate into the ground. (Vol. II, p. 19). One relatively straightforward design alternative, which would address water quality issues, would be to perform a flushing study; analyze applicable drainage level of service standards imposed by state, regional, and local authorities; and increase the capacity of the surface water management system to accommodate the runoff from storms of sufficient size and frequency that would be accommodated by the proposed system. Another feature of this design alternative would be to impose for each component of the system a detailed, enforceable program of inspection, maintenance, and contaminant-disposal. This program would incorporate the manufacturer's recommendations for the manner and minimum frequency of inspection and maintenance, but would require more frequent removal of contaminated sediments during periods when larger storms are more numerous (e.g., a specified wet season) or more intense (e.g., a specified hurricane season), as well as any periods of the year when the marine and upland uses are greatest (e.g., during the winter season, if this is the period of greatest use). As testified by Mr. Bateman, the proximity of the water table to the surface, as well as South Florida land costs, discourage reliance upon a conventional percolation-treatment system, even though the site's uplands are 5 feet NGVD and the water table is 1.2 feet NGVD. The bottom of the proposed system is 2.5 feet NGVD, which leaves little soil for absorption. If the nature of the contaminants, such as copper, does not preclude reliance upon a percolation-treatment system, DEP and Applicant could explore design alternatives that incorporate more, shallower vaults, which would increase the soil layer between the bottom of the vaults and the top of the water table. If the technology or contaminants preclude reliance upon such an alternative, the parties could consider the relatively costly alternative, described by Mr. Bateman, of pool-like filters with an "actual filtration device." (Vol. II, pp. 19-20). The preceding design alternatives would address water quality concerns, including as they apply to manatees, but would not address the impact of increased boating upon manatees. The record is not well developed in this regard, but DEP and Intervenor have considerable experience in this area, and it is premature to find no suitable means of eliminating or at least adequately reducing the secondary impacts of the proposed system in this crucial regard as well. In any event, Applicant has failed to consider any design alternatives to eliminate or adequately reduce the direct and secondary impacts of the proposed surface water management system. Having failed to consider minimization, DEP and Applicant have failed to identify the residual direct and secondary impacts that might be offset by mitigation. Applicant has thus failed to mitigate the direct and secondary impacts of the proposed surface water management system.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order revoking its determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the application for an environmental resource permit in DOAH Case No. 98-5409. DONE AND ENTERED this 24th day of November, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1999. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 T. Elaine Holmes, Attorney 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue for determination in this proceeding is whether Respondent, E. Speer and Associates, Inc. (the "Applicant"), should be granted a permit for the construction of a permanent docking facility pursuant to Sections 403.91-403.929, Florida Statutes, and Florida Administrative Code Chapter 17.
Findings Of Fact Whether Quantified Hydrographic Studies Are Necessary For All Marina Applications To Provide Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards Speer's Exceptions Nos. 1, 4, 5, 6, 7 and 8 in whole or in part take exception to the Hearing Officer's conclusion (stated as a finding of fact) that it is not possible to demonstrate adequate flushing without "quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data." (R.O. at 20, 22-24, 47, 49-50, 54, 57-58; F.O.F. Nos. 33, 35, 38-39, 40, 43-45, 64, 66, and 69) It is clear from the tenor of the entire recommended order that the Hearing Officer believes that as a matter of law an expert's opinion is not sufficient to provide reasonable assurances that flushing will be adequate to prevent violations of water quality standards unless that opinion is based on quantified conclusions generated by objective methods and appropriate hydrodynamic data. (R.O. at 47, 49-50, 57-58) Thus, for example, the Hearing Officer opines that quantification of flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data is an essential element of the prima facie showing required to be made by the applicant. (R.O. at 47; C.O.L. No. 11) The Hearing Officer places great significance an the following excerpt from the opinion in 1800 Atlantic Developers v. Department of Environmental Reculation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990): 1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order . . . . The final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons there for are significant to the issues on this appeal. (emphasis added) We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies how productive the marine habitat may be in this case, and no record support for the suggestion that there would be some quantifiable diminution in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added) Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity . . . The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . (emphasis added) 1800 Atlantic, 552 So.2d at 951-952. I do not concur that 1800 Atlantic stands for the proposition that quantified hydrographic measurement of flushing is in all cases an essential element of a prima facie showing that a marina project will not cause violations of water quality standards. Notwithstanding the above noted statement of the court in 1800 Atlantic that "there is no finding of fact . . . that quantifies 'how productive the marine habitat may be' . and no record support . . . that there would be some quantifiable diminution in the quality of marine habitat attributable to [the] project," 552 So.2d 951, the court did not reject the finding that the project adversely affected the conservation of fish and wildlife, fishing or recreation values, and marine productivity. Indeed, had the court rejected the above finding due to lack of quantified findings the court would never have gone on to reach the issue of mitigation because in 1800 Atlantic mitigation could only become relevant if the applicant was unable to provide reasonable assurance that the project satisfies the public interest criteria of Section 403.918(2) (a), Florida Statutes. See Section 403.918(2)(b), Florida Statutes. I do agree that in some cases quantified hydrographic studies of flushing may be required in order to provide reasonable assurances. Thus, in Rudloe v. Dickerson Bavshore, Inc., 10 FALR 3426 (DER Case No. 87-0816, June 9, 1988), my predecessor held that a dye tracer study was necessary to provide quantitative information about dilution rates and directions on dispersion of pollutants emanating from a proposed marina site which was in "close proximity" to Class II waters approved for shellfish harvesting. 10 FALR at 3447-48. However, the need for such quantified studies must be determined on a case by case basis and is not required as a matter of law for all marinas. 5/ Far me to determine as a matter of law that experts may establish a fact only by certain types of evidence would be an unwarranted and unwise intrusion into the scientific domain of the expert. Thus, in Kralik v. Ponce Marine, Inc., 11 FALR 669, 671 (DER Final Order, Jan. 11, 1989), my predecessor held that expert testimony with regard to flushing does not lack credibility just because a hydrographic study had not been conducted. Of course, the finder of fact has the ultimate say on how much weight an expert opinion should be given if it is not based on a quantified study. Thus, whether an expert testifying on adequacy of flushing has conducted a quantifiable hydrographic study merely goes to the weight of the evidence. Kralik, 11 FALR at 671. I only conclude that a quantified hydrographic study for a proposed marina is not in all cases essential for a showing of reasonable assurances that water quality standards will not be violated. Accordingly, to the extent that the Hearing Officer's findings of fact state that a quantified hydrographic study is required in all cases as a prima facie element of a showing of reasonable assurance that a project will not violate water quality standards, I reject such statement as a mislabled and incorrect conclusion of law. Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards I read Speer's Exceptions Nos. 1, 3, 4, 5, 6, 7 and 8 in whole or in part as taking exception to the Hearing Officer's finding that under the facts of this case a quantified hydrographic study was needed in order to provide reasonable assurance that the project would not cause violations of water quality standards, and that because such a quantified hydrographic study had not been conducted, reasonable assurances had not been provided. (F.O.F. Nos. 33, 35, 38- 39, 40, 43-45, 64, 66 and 69) As noted by the Hearing Officer, the applicant's expert testimony concerning the adequacy of the flushing consisted of general statements describing visual observations of river and tidal flows which, together with past experience and knowledge of the general area of the project, formed the basis for the experts' opinions that a quantified hydrographic study was not necessary for this project. (R.O. at 22-23) Thus, far example, Mr. Charles C. Isiminger, accepted as an expert in marina design and hydrographic engineering testified that based on his knowledge of the area, its riverine and tidal flows, a hydrographic documentation was not needed to provide reasonable assurance that the project would not cause water quality violations. Mr. Isiminger also testified that any pollutants entering the water from the marina would be flushed out of the area within one tidal cycle. (Tr. at 65-66, 70, 77- 79, 93, 110, 125, 128, 134) Mr. Thomas Franklin, an environmental supervisor from the Department testified that: the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this area, plus the fact that it was further enhanced by flushing due to the St. Lucie River being -- basically coming around Hell Gate point [sic] and funneling out into this estuary. (emphasis added) TR at 437. Other experts also testified that the area was well flushed and that a quantified hydrographic study was not needed in this case. (Jacqueline Kelly, Tr. at 187; John Meyer, Tr. at 319, 322, 341; Gerald Ward, Tr. at 44749) 6/ Speer asserts that the Hearing Officer's finding that a quantified hydrographic study is required in this case cannot stand in light of the unrebutted expert testimony that the marina site will be well flushed and that the rate of flushing provides reasonable assurances the water quality standards will not be violated. I have found no competent substantial evidence in the record which would support a finding that under the facts of this case a quantified hydrographic study is required. I did note that in Footnote 21 of the Recommended Order (R.O. at 20) the Hearing Officer states: Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. (citing testimony of Mr. Isiminger at Tr. 88-94) At first blush this may appear to be competent substantial evidence supporting a finding that a quantified hydrographic study is necessary in this case. However, when the testimony is read in its complete context, it is clear that Mr. Isiminger is testifying as to what is necessary to do a hydrographic study when one is needed, and is not testifying that such a study is needed in this case. (Tr. 88-94). I also note that the record contains a memo written by Dr. Kenneth Echternacht, a hydrographic engineer employed by the Department. (Tr. at 67-70) This memo was admitted without objection. (Tr. at 23) The memo states in part that "without . . . hydrographic documentation, reasonable assurance cannot be given that the project will not cause problems." (Tr. at 70; Pet. Exh. No. 10) 7/ Dr. Echternacht was not called as a witness at the hearing and the letter was not offered as evidence of the opinion of Dr. Echternacht or the Department at the time of the de novo hearing. To the contrary, the above noted testimony of Mr. Franklin and the testimony of Jacqueline D. Kelly, an environmental specialist of the Department accepted as an expert in evaluating impacts of environmental dredge and fill projects (Tr. at 187, 195; R.O. at 3), clearly establish that at the time of the de novo hearing the Department was of the opinion that further hydrographic documentation was not needed. The Hearing Officer noted that Mr. Meyer testified that the flushing is a "very, very complicated dynamic situation." (Tr. at 320). The testimony was as follows: Q. So you don't know for sure whether the currents here impact this at all or stay offshore from it? A. Oh, the currents definitelv affect it, and you do have interchange -- as I mentioned before, a very high rate of interchange on a daily basis on every tide. Q. Are you saying that the current that flows through here every day flows right through the site? A. We're dealing with two different things here. We're dealing with your currents, your general migration of waters from the estuary from the inland areas down. You're also dealing with tidal effects coming in and out, and it's a very, very complicated dynamic situation. For me to try to tell you exactly how these things work would be impossible without having a very, very long drawn-out expensive study done on the entire area, and I have not reviewed any studies like that. Tr. at 319-20 (emphasis added) When taken in its context it is clear that Mr. Meyer is testifying that there is a very high rate of exchange on a daily basis on every tide. The fact that he viewed the exact details of the flushing as very complicated in no way retracted his statement that there was a very high rate of exchange on every tide. My review of the record leads me to concur with Speer that no testimony, either on direct, cross-examination, or examination by the Hearing Officer, nor any other evidence was introduced to rebut the expert testimony presented by Speer and the Department that flushing on the site was adequate to provide reasonable assurance that water quality standards will not be violated. 8/ As a general rule, the trier of fact may not arbitrarily reject uncontroverted evidence as proof of a contested fact. Merrill Stevens Dry Dock Co. v. G. & J. Investments, 506 So.2d 30 (Fla. 3d DCA 1987), rev. den., 515 So.2d 229 (Fla. 1987); City of St. Petersburg v. Vinoy Park Hotel, 352 So.2d 149 (Fla. 2d DCA 1977); In Re: Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984). This does not mean that a mere scintilla of unrebutted evidence is sufficient to establish a contested fact in an administrative hearing. At least in the context of administrative proceedings, the unrebutted evidence still must be competent substantial evidence to support a finding of fact. 9/ There is no suggestion that the Hearing Officer rejected the unrebutted testimony of the experts of Speer and the Department as not being competent substantial evidence. In fact, in the light of the testimony of Mr. Isiminger (Tr. at 65- 66), Mr. Ward ( Tr. at 447-449), Mr. Meyer (Tr. at 238- 239), and Mr. Franklin (Tr. at 345-350), it is beyond peradventure that there is competent substantial evidence to support a finding that flushing is adequate to provide reasonable assurance that the marina will not cause violations of water quality standards. It is clear from the context of the Recommended Order that the Hearing Officer believed that reasonable assurance had not been provided only because he believed that a quantified hydrographic study was required as a matter of law. Although I reject the Hearing Officer's conclusion that a quantified hydrographic study must be conducted as a matter of law for all marina applications, I must still determine whether a quantified hydrographic analysis is required under the facts of this case. In Rudloe v. Dickerson Bayshore, 10 FALR 3426 (DER Final Order, June 9, 1988) it was held that a hydrographic study was not adequate because it did not include a quantified dye tracer study. Id., 10 FALR at 3448. In Rudloe, as in this case, the marina was located in Class III waters, but near Class II waters. However, in Rudloe, the marina site was much closer to the Class II waters (approximately 1,700 feet in Rudloe (10 FAIR at 3430) as compared to approximately 8,000 feet in this case). (R.O. at 16, F.O.F. No. 26) Also, the Rudloe case is significantly different from this case in that competent substantial expert opinion was presented in Rudloe that the marina would adversely impact the Class II shellfish harvesting area. See Rudloe, 10 FALR at 3433-35, 3437-38 (testimony of DNR expert that operation of marina would result in closure of waters to the harvest of shellfish; testimony of Dr. Robert Livingston that the hydrographic drogue studies conducted were inadequate.) In this case, neither expert nor lay testimony was offered by Barringer to show that operation of the marina would result in violation of water quality standards or have any adverse impact on the Class II shellfish waters. 10/ I conclude that the facts of this case as found by the Hearing Officer are not sufficiently similar to the facts of Rudloe so as to justify holding as a matter of law a quantified hydrographic study is necessary to establish the required reasonable assurances. Since the record contains competent substantial evidence that flushing is adequate to provide reasonable assurance that the marina will not cause water quality violations, and since there is no competent substantial evidence in the record to support the Hearing Officer's contrary finding, I must accept the exception of Speer and reject the Hearing Officer's findings of fact to the contrary. In this case I note that I am not so much rejecting findings of fact as rejecting a conclusion of law. As I noted, the Hearing Officer's finding is really based on a conclusion of law which I reject. This leaves only unrebutted competent substantial evidence that there will be adequate flushing to provide reasonable assurance that the operation of the marina will not result in water quality violations. There is no rational basis to reject this unrebutted competent substantial evidence. Therefore, I must accept as proven that the applicant has provided the reasonable assurances that operation of the marina will not result in water quality violations. Merrill Stevens Dry Dock; City of St. Petersburg; Estate of Hannon; supra, Effect On Class II Waters Speer's Exceptions Nos. 7 and 8 take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the marina would not have a "negative effect" an the Class II waters of the St. Lucie Inlet and the Great Pocket. (F.O.F. No. 43) Rule 17-312.080(6)(b), Fla. Admin. Code provides: The Department also shall deny a permit for dredging and filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. In this case expert testimony was presented by Speer and the Department that due to the distance of the marina site from the Class II waters (8,000 feet) the marina site was not in close proximity to the Class II waters, and due to the rapid flushing of the area, the construction and operation of the marina would neither have a negative effect nor would result in violations of water quality standards in the Class II waters of St. Lucie Inlet and the Great Pocket. (Isiminger, Tr. at 96, 126-27; Meyer, Tr. at 254-55) I find that the record contains no competent substantial evidence to rebut the evidence introduced by Speer and the Department that the marina will have no negative effect on Class II waters and will not result in violation of water quality standards in Class II waters. Accordingly, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In Re: Estate of Hannon; supra. Reasonable Assurance That Operation Of The Marina Will Not Result In Prop Dredging Or Violations Of The State Water Quality Criterion For Turbidity Speer's Exceptions Nos. 1, 2, 9-12, and 16 in whole or in part take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the boat traffic from operation of the marina would not cause prop dredging or violations of the water quality criterion for turbidity. (F.O.F. Nos. 33-34, 45, 48, 52-53, 64, and 67) 11/ On one hand, there was testimony that the depths of the marina, in combination with the size of boats allowed in the various slips, would allow for a one foot clearance from the bottom of the boats to the bottom of the marina, and that this clearance, in combination with speed limits in the marina, would provide reasonable assurance that operation of the marina would not result in prop dredging or turbidity violations. (Isiminger, Tr. at 104-107, 118; Meyer Tr. at 263-65, 299, 304- 305; Kelly, Tr. at 189-190; Ward, Tr. at 460) On the other hand, Bruce Graham, admitted as an expert in marine biology testified that: "A large boat, three feet from the bottom, I think would resuspend sediment." (Graham, Tr. at 378). The Hearing Officer, noting that when asked if one foot clearance is sufficient to prevent prop dredging and resultant turbidity violations, a Department witness, testified: I would have to say that we simply don't have enough documentation to know this for a fact. We know that a foot gives us a degree of comfort that there will not be prop wash. In certain instances -- a tug boat, for instance, you know, with huge engines, you're going to have prop wash over a much -- over a large area and with probably much more than a foot of clearance. But for the normal, typical marina a foot, as I say, gives us a degree of comfort that we have settled on. Neyer, Tr. at 264. The Hearing Officer concluded that the witnesses of Speer and the Department could not explain the reasons or efficacy of the "one foot policy" except to say that in their experience the one foot policy was adequate to prevent prop dredging and turbidity violations. (R.O. at 28 n.35)0 The Hearing Officer thus found that Speer and the Department failed to "prove up" the one foot policy -- i.e., failed to elucidate and explicate the reason for the policy. 12/ Clearly the Hearing Officer placed more weight on the testimony of Mr. Bruce Graham than that of Isiminger, Meyer, Kelly and Ward. Since I cannot say that the testimony of Graham was not competent substantial evidence, I am not at liberty to reweigh the evidence or reject the Hearing Officer's finding of fact. See, Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Speer contends that Barringer presented no evidence that prop dredging will cause sufficient turbidity to violate the state water quality turbidity criterion of 29 NTUs. 13/ That contention misses the point. The burden is on Speer to establish by the preponderance of evidence that reasonable assurance has been provided that operation of the marina will not result in violations of the water quality criterion for turbidity. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Hearing Officer, as the finder of fact, concluded that Speer failed to do so. Accordingly, I reject the exception of Speer and accept the Hearing Officer's finding of fact that Speer failed to provide reasonable assurance that operation of the marina would not cause prop dredging or violations of the state water quality criterion for turbidity. Manatee Impacts and the Public Interest Test Speer's Exceptions Nos. 13 and 17 take exception to the Hearing Officer's finding that Speer failed to do a quantified study of impacts to manatees and therefore failed to provide reasonable assurance that the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat. (F.O.F. Nos. 61, 64 and 68) The Hearing Officer reasoned as follows: Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters covering approximately 20,800 square feet. It could be argued, or course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study. (R.O. at 35, n. 51) As Speer's exception notes, there was testimony that because of the width of the river and boat speed restrictions in the project area, there would be no adverse impacts an the manatee from the marina. (Kelly, Tr. at 162; Meyer, Tr. at 255-56, 331- 32; Isiminger, Tr. at 130) The St. Lucie/Jupiter/Hobe Sound waterways are a major travel corridor for manatees. (DER Exh. No. 4) Between 1974 and December 1990, there were ten water craft related manatee fatalities within the boating sphere of influence of the project. (DER Exh. No. 4) In order to reduce impacts on the manatees, the proposed permit contains the following specific conditions: S.C. No. 13: The permittee agrees to install and maintain a minimum of one manatee education/display on the main access pier during and after construction. S.C. No. 15: The permittee agrees that any collision with a manatee shall be reported immediately [to DNR and U.S. Fish and wildlife Service]. S.C. No. 18: The permittee shall post four (4) manatee area/slow speed signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility. (DER Exh. No. 3) 14/ There was testimony that the piers, once constructed, would not impair the passage of manatees. (Isiminger, Tr. at 114- 115) On the other hand, there was some testimony that manatees may have to go around the project rather than through it. (Meyer, Tr. at 311) The existing boat traffic past the site of the project to the Inlet was "rough1y estimated" at 50 to 100 boats a day. (Meyer, Tr. at 337) The U.S. Fish and Wildlife Service determined that "while [the project] may negatively affect, it is not likely to jeopardize the continued existence of the West Indian Manatee." (Tr. at 120-21) The Hearing Officer concluded that reasonable assurance as to adverse impacts on manatees could not be provided absent a quantified traffic study. (R.O. at 35, n. 51) In Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order March 9, 1990), the Department held that the information needed to determine a marina's impact on manatees and the necessary actions to mitigate such impacts must be decided an a case by case basis. For example, in Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Final Order, Aug. 24, 1989), 15/ a marina sought to expand by adding 113 new wet slips. The marina was required to develop a manatee protection plan far the surrounding portions of the Caloosahatchee River, all new slips were limited to sail boats until the manatee protection plan was implemented and enforced, and power boat occupancy was limited to 75% of the total 174 wetslips in any event. The marina also made available a wet slip for use by the Florida Marine Patrol. In this case there is evidence of significant boat related manatee fatalities in the boating sphere of influence of the proposed marina. There is also evidence of existing traffic of 50-100 boats per day past the project site. In view of the fact that this project would add 86 slips and a public fueling facility, it seems likely that that the project will significantly increase both boat traffic and the threat of manatee collisions. Accordingly, I concur with the Hearing Officer that there is competent substantial evidence to support a finding that further studies are needed to determine what, if any, additional manatee protection conditions are needed to provide reasonable assurance that manatees will not be adversely affected. I conclude that the applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public interest. Therefore, I reject the exception of Speer. Cumulative and Secondary Impacts Speer's Exception No. 15 takes exception to the Hearing Officer's finding that the applicant failed to provide reasonable assurance that there will be no adverse cumulative pacts created either by the cumulative effects of the object and existing similar projects, or by secondary pacts of the project itself. (F.O.F. No. 66) 16/ Cumulative impact analysis takes into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Conservancy v. A. Vernon Allen Builder, supra; Section 403.919, Florida Statutes. Secondary impact analysis considers the impact of the project itself and of any other relevant activities that are very closely linked or causally related to the permitted project. Conservancy, 580 So.2d at 778; J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980. 17/ Thus, in Conservancy the secondary impact analysis was required to consider the environmental impacts of development of 75 estate homes on an island where the development would be reasonably expected as a result of the permitted laying of a subaqueous sewer line. Similarly, in del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), the Department was required to consider the environmental impacts of the foreseeable development of an island facilitated by the permitted building of a bridge to the island. In this case there is competent substantial evidence that there are other marinas located 1,750 feet downstream in Willoughby Creek, and 5,000 feet downstream in Manatee Pocket. (R.O. F.O.F. 31; Isiminger, Tr. at 112; Meyer, Tr. at 261) The record contains competent substantial evidence that the cumulative impact of the project and the existing marinas in Willoughby Creek and Manatee Pocket will not result in violations of state water policy. (Isiminger, Tr. at 125; Kelly, Tr. at 167) I cannot say that the testimony of Isiminger and Kelly on cumulative impacts is not competent, substantial evidence. In light of the fact that there is no competent substantial evidence to indicate that cumulative impacts would result in water quality violations, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersbur; In re: Estate of Hannon; supra. As to secondary impacts, the Hearing Officer pointed out that Speer did not introduce any evidence as to whether there would be secondary impacts to water quality as the result of further development or increased utilization of the uplands facilities. (See F.O.F. 66, n.59, R.O. at 39) Such further development or increased utilization of upland facilities is reasonably foreseeable and would be very closely linked or causally related to the building of an 86 slip marina with public fuel services. As noted above, the applicant has the burden of providing reasonable assurances as to cumulative and secondary impacts. Brown v. DER, supra; Conservancy, supra. However, neither the pleadings nor the pre-hearing stipulation raised the issue of the adequacy of the secondary impact analysis. In a case such as this where the Department's notice of intent to issue a permit has been challenged by a third party, the applicant's prima facie case need only include the application and the accompanying documentation and information relied on by the Department as the basis of its intent to issue. Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The petitioner challenging the permit must identify the areas of controversy and allege a factual basis for its contentions that the applicant did not provide the necessary reasonable assurances. J.W.C., 396 So.2d at 789. See also Woodholly Assoc. v. Department of Natural Resources, 451 So.2d 1002, 1004 (Fla. 1st DCA 1984). Since Barringer did not identify this issue and did not allege any factual basis for a contention that the secondary impact analysis was inadequate or incorrect, I may not rule on the issue in this order. Miscellaneous Exceptions To Findings of Fact Speer's Exception No. 14 takes exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the project will have no adverse impact on (1) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish, and (2) recreational and commercial values in the vicinity. (F.O.F. No. 64) Speer contends that this finding is not supported in the record by competent substantial evidence and is contrary to unrebutted testimony of Ms. Kelly and Mr. Isiminger. (Kelly, Tr. at 159, 161-62, 165-67; Isiminger, Tr. at 73) I cannot say that the testimony of Isiminger and Kelly is not competent, substantial evidence, and I find no evidence in the record to rebut the testimony of Kelly and Isiminger. Therefore, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In re: Estate of Hannon; supra. Speer's Exception No. 3 takes exception to the Hearing Officer's finding that Speer failed to provide a current water quality analysis. (F.O.F. No. 35) A water quality analysis was submitted in April of 1990, shortly after the permit application was filed. (R.O. at 2, 19; F.O.F. No. 34) I find no competent substantial evidence in the record to suggest any reason for believing that the water quality has changed since April of 1990. I agree with Speer that, absent some specific reason for believing that the water quality has changed since the date of a study conducted contemporaneously with the permit application, there is no requirement to provide an updated water quality analysis. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Need For Quantified Hydrographic Study Speer's Exceptions Nos. 1, 7 and 9, in whole or in part, take exception to the Hearing Officer's conclusions of law that a quantified hydrographic study was needed to provide reasonable assurances that the operation of the marina would not result in violations of water quality standards and would would not have a negative effect on Class II waters. For the reasons stated in Parts III(1), (2) and (3) above, I accept this exception and reject the above noted conclusions of law. Introduction Of Issues Not Set Forth In Pleadings Or Pre-Hearing Stipulations Speer's Exceptions Nos. 1, 2, 3, and 5, in whole or in part, take exception to the Hearing Officer's consideration of issues of (1) the need for a quantified hydrographic study, (2) the proximity of the site to Class II waters, (3) turbidity and prop dredging, (4) cumulative impacts, and (5) the need for a quantified study on manatee impacts. For the reasons set forth in Part 111(6) above, I agree that, absent waiver, a petitioner challenging an intent to issue a permit may not raise issues at the hearing which were not raised in the pleadings or pre-hearing stipulations. However, in this case the issue of manatee impacts was raised in the pleadings, and Speer was on notice that it had the burden of proof on that issue. As to the other issues, even if I accepted far the sake of argument that they were not raised in the pleadings or pre-hearing stipulations, Speer failed to timely object to the raising of these issues at the hearing and therefore waived any objection. See Sarasota County and Midnight Pass Society v. Department of Environmental Regulation, 13 FAIR 1727 (DER Final Order, April 4, 1991). Therefore, I reject the above exceptions. Proximity To Class II Waters Speer's Exception No. 2 takes exception to the Hearing Officer's conclusion of law that Speer was required to submit a plan which demonstrated that the marina would not have a negative effect on Class II waters. (C.O.L. Nos. 12 and 13) I do not agree that where a proposed marina site is 8,000 feet from Class II waters and where the site is rapidly flushed as noted in Parts 111(1), (2) and (3) above, that the site is in close proximity with the Class II waters within the meaning of Rule 17-312.080(6), Fla. Admin. Code. Accordingly, I accept this exception and reject the above note conclusion of law. Public Interest Test Speer's Exception No. 4 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurance that the project was not contrary to the public interest. (C.O.L. Nos. 17 and 20) For the reasons set forth in Parts III(4) and (5) above, I reject this exception. Cumulative Impacts Speer's Exception No. 5 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurances that cumulative impacts would not result in water quality violations, and that such assurances could only be provided by a quantified study. For the reasons set forth in Parts III (1), (2), (3) and (6) above, I accept this exception and reject the above noted conclusions of law. Modification Of Permit Conditions Speer's Exception No. 6 takes Exception to the Hearing Officer's conclusions of law Nos. 24-34. These conclusions of law concern questions of the authority of the Hearing Officer and me to modify the conditions of the permit. I agree with Speer that since none of the parties have requested any modifications, these conclusions of law are irrelevant. 18/ Therefore I accept the exception and reject the above noted conclusions of law as irrelevant. Miscellaneous Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that Speer and the Department failed to provide reasonable assurance as to prop dredging and turbidity violations because neither Speer nor the Department sufficiently proved the basis for the one-foot clearance policy. For the reasons set forth in Part III(4) above, I reject this exception. Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that the question of whether mitigation is adequate is a question of law. I agree with the Hearing Officer and reject this exception. See 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Environmental Regulation, enter a Final Order denying the application for a permit to construct the proposed project and denying the request for determination of improper purposes. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of June, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 1550 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992.
Findings Of Fact In September, 1985, Armand J. Houle purchased an 80 acre tract located eight miles east of the Naples toll booth on State Road 84 and approximately two miles north of Alligator Alley. The purpose of buying the property was to mine the limestone rock thereon, through a borrow pit, for the purpose of selling it as road base to the State of Florida Department of Transportation for use in the construction of 1-75 (Alligator Alley extending from Naples to the Florida east coast). While no contract has existed or currently exists, correspondence between the Department of Transportation and counsel for the Petitioner indicates that approximately 800,000 cubic yards of fill will be required in the immediate area and that Petitioner's proposed borrow pit would be the ideal source of this rock. Prior to making the purchase, Mr. Houle's associate, Raymond Chester, contacted both the Department of Transportation concerning the potential use of the rock and representatives of the Department of Environmental Regulation. The response he received from these agencies led him to, believe that a borrow pit might well be permitted and the effort should be pursued. After Mr. Chester and Mr. Houle became partners in the property, they contacted county officials and received zoning and other local permits for the facility. It was only after this, when DER was approached again that the applicants were advised a permit would not be issued. Mr. Houle agrees that, if the permits as requested were granted, he would accept a prohibition against further development of the property after removal of the rock and fill, would allow access to the restored lakes to the public for fishing and recreation; would agree to an appropriate restoration plan for the site; and would ensure compliance with the restoration plan stipulated by the Department. After the property was purchased in late 1985, Mr. Houle approached Daniel W. Brundage, the vice-president of an engineering firm in Naples, with a view toward developing the property in question as a borrow pit. Plans were developed for application for permits with the County and Mr. Brundage, consistent therewith, visited the site on several occasions. He found some vegetation off from the site which could be related to wetlands and contacted a representative of DER with whom he went to the site to look it over. This agency representative, Mr. Beever, concluded that the property was a jurisdictional wetland. Mr. Brundage nonetheless felt confident enough to begin work with the County to secure a permit to convert this land, classified as agricultural, to mining property. Consistent with his efforts, the request for conversion went through a four step process on the way to the County Commission which included approval by (1) the Water Management Advisory Board, (2) the Environmental Advisory Council which recommended same changes accepted by the Petitioner, (3) the Subdivision Review Committee, and (4) the Coastal Area Planning Council. All four subagencies recommended approval and thereafter the County granted its permit for work to begin. Assuming all permits are issued, the property will be developed in two stages. In stage one the site will be cleared of vegetation, and the top soil on Phase I, the western 40 acre parcel, removed and used to construct a berm around the entire perimeter of the site as well as between the two 40 acre parcels. The berm will be entirely within property boundaries and used to isolate any water removed from the active phase within the site so that it does not flow onto adjoining property. The eastern 40 acre tract, (Stage II) will be used for water storage during the excavation of Stage 1. It is anticipated that no water will leave the site during construction of either stage with the exception of extraordinary waterfall during rainfall or hurricane. Before any water is discharged, it will go into a storage configuration so that any sediment therein would settle to the bottom before discharge. The discharged water will be filtered through hay bales or filter screens to avoid any turbidity in the surrounding water. The design of this holding capacity in the filter system is sufficient to accommodate the water of a 25 year storm. As Stage I is completed, Stage II will be opened, and the ground water from Stage II pumped back to Stage I for storage. A similar storage and filtration system will be utilized around Stage I. Primary access to the property will be along the western boundary of 8 Mile Canal, but if this is not allowed, Petitioner proposes to build a single span bridge across the 8 Mile Canal at 40th Street to allow access to the property. After the lime rock has been excavated, the berm will be removed and the side of the property graded to form the banks of a 56 acre lake for recreational purposes. The edge of the lake will be a meandering slope at a ratio of 10:1 which will be assured by survey to be in compliance with the County plan. The lake, which will have a maximum depth of 20 feet, will be excavated at a depth ratio of 2:1 from the edge of the slope to the bottom of the lake. During excavation and prior to restoration, heavy equipment will be used for the removal of the rock such as drag lines, back hoes, motor graders, and bulldozers and an area within the boundaries of the site will be isolated and set up for fueling and maintenance. It will be floored with a membrane to prohibit oil and fuel from getting into the ground as a result of accidental spills. Storage tanks for fuel and oil will be above ground and available for immediate inspection. Waste facilities will be in the form of porta-potties and any water falling in this maintenance area will be drained to a low sump within the membraned area for storage until evaporation or safe removal. In the event of a heavy rainfall, water can be stored and anti-sedimented and cleaned and, if necessary, operations can be temporarily stopped. Mr. Brundage indicates that he has never seen any standing water on the site during his five visits nor has any standing water ever been reported to him. He is aware of no historical or archaeological sites on the property, and at no point would rock be mined within 50 feet of the property line. Dr. Durbin Tabb, a botanist, was retained by the Petitioner to prepare a plan for restoration of the site after mining operations were complete. In preparing his plan, he visited the site on several occasions finding varying plant life, much of which was grasses and rushes. In the north was a pine lowland where he saw palmettos scattered in the grassland as well as a few dwarf cypress trees. He also observed a small cluster of cabbage palms in the southern portion of the eastern tract and noted that the currently existing berm along the eastern boundary of the eastern tract is currently being invaded by exotic plant life including the Brazilian pepper. Dr. Tabb found little evidence of recent surface water accumulation; mollusk residue showed no evidence of recent viability; and he found no crawfish burrows which, if present, would show a water table near the surface. Other visitors to the site, however, did find crawfish burrows. The marsh soil shows that, at some time in the past, it was wet enough to support a soil-forming community. This is no longer' the case according to, Dr. Tabb. The process was stopped by the formulation of the Golden Gate Canal System in the 1960's. The existing marsh does, however', hold sufficient water to support the growth of muhli grass. Dr. Tabb's restoration plan is his best estimate of how the property can be restored to its previous condition by replanting native species found in the area. The program will include littoral zone vegetation to provide shelter and a feeding zone along the water's edge which does not now exist. The plan calls for the saying of the marsh soil. Since neither DER nor the client responded to his plan, when submitted, with any suggestions or corrections, he assumed it was approved. Dr. Tabb, who is also an expert in estuarian biology and zoology, concluded that the area on which this site is located is a very poor habitat for deer and panther. The red cockaded woodpecker has no trees on the property which it specifically desires and the property is a poor or nonexistent habitat for the indigo snake and the Everglades snake. It might, however, constitute a habitat for the Cape Sable seaside sparrow, but this bird has never been seen in this inland area. Panthers cross the area as do bears, but the presence of the excavated lake would be no more hindrance to them in their crossing than would the presence of Alligator Alley and the proposed 1-75. The area with sawgrass and muhli grass, which is dominant throughout the Golden Gate area, is called a "dry prairie" as opposed to a "wet prairie." While some of the same plants exist, it is somewhat different in that there are no viable wetlands wildlife organisms currently existing on the property. In Dr. Tabb's opinion, the property has lost its wetlands characteristics and only the marsh soil's water retention permits the life of the grasses currently existing. Wading birds would use the site later but do not currently utilize the area where excavation would take place. In Dr. Tabb's restoration plan, the slope to the lake would be replanted with saw and muhli grasses down to the litoral zone. From there on to the water, a palette of normal wet grasses would be planted to serve as feeding sites and roasting sites for the birds. In addition, an island planted with willows would be constructed off shore in the lake. Deer currently visit the area. They are not currently supported on the land though Mr. Barnett, of the Game and Fresh Water Fish Commission, indicated that they come out of the pine flats at night to feed on the grasses on the prairie. These deer form a large portion of the food chain for the panther, and Dr. Tabb does not consider it conceivable that the project, replanted and restored, would in any way adversely impact the Florida panther or the birds in issue here. In Dr. Tabb's opinion, it is questionable whether the site comes under the jurisdiction of DER based on the grasses present because he cannot find the water connection to confer jurisdiction. Dr. Tabb has not seen standing water on the site as he has seen on two other sites within the area where DER has granted permits for rock pits. On a site like this, the vegetation changes with the seasons. This site is not now connected to the canal along Alligator Alley by vegetation. There may have been a vegetation connection in the past, but as one goes up toward the site from the canal, the grass changes gradually from low pineland grasses found on higher ground to the lower sawgrasses found on the site in question. In Dr. Tabb's opinion, if Mr. Houle's property is to be considered a wetland, it is a transitional wetland. Turning to the issue of loss of habitat, if one assumes that portion of the property that will be converted to a lake will be denied to the panther, this is not the case for the deer which, in this area, is considered to be aquatic. Any denial of the lake area would constitute a very small negative impact compared to what is going on in other areas of Collier County. Admitting that there is a requirement to consider the cumulative impact of a project, in Dr. Tabb's opinion, this project would constitute a "may impact" situation. There is no definitive evidence as to what would happen, and he would be more concerned if the area were now a good panther habitat. It is not, however, and in fact it is no more than a habitat for the grasses which grow there. As to the wetlands issue, the only sign of exotic plant invasion is in the disturbed area around the canal which was installed approximately 18 years ago. The absence of these exotic species is, in Dr. Tabb's opinion, a clear indication that there is no flowing or standing water since the site is too dry for the germination of the seeds. There will be some removal of the biomass by the excavation of the lake. This biomass, consisting of grass primarily, is consumed by fire every year or so and insects eat it as well. Admittedly, some of the biomass is being eaten by animals of some nature and that which is converted to a lake will be removed. There is a trade-off, however. Dr. Martin Roessler, a marine biologist, prepared a report, on the water quality of the adjacent 8 Mile Canal, and other water bodies in the area. In preparation of his report, he took water samples in the areas in question, read literature on the water quality in the area, and looked at water quality data provided by U.S. government agencies and private companies. On the several visits he made to the site, he has not seen any surface water. The first time he could get water only in the adjacent canal, and he also got some water from the land borings done by Dr. Missimer on the site. Dr. Roessler is familiar with State standards for water quality and, in his opinion, the turbidity standards would not be disturbed because there was no water on the ground to be sheet flow. All water was at least three feet underground and, in addition, Petitioner has agreed to properly sod or otherwise treat the berms he will build to prevent erosion and any resultant turbidity either off-site or in the 8 Mile Canal. Dr. Roessler also does not believe the project would violate the oil and grease standards. There is nothing inherent in the mining process to bring into play oils and greases except for the possible problem in refueling and maintenance operations. In that regard, Petitioner has shown how he will provide against that by placing a membrane to prevent any oil, grease or other contaminant from getting into the ground. This area does not contain the organic mulch which produces natural oils and greases. The water near the surface of the lake will contain sufficient dissolved oxygen to meet State standards without problem. In the summer months when the dissolved oxygen count is low, generally, the lake bottom water may not meet State standards, but that happens quite frequently, naturally, across the entire area. Dr. Roessler believes that the dissolved oxygen requirements of 2.5 at the surface and .5 at the bottom will most likely be met in the lake created by this project. Concerning the biochemical oxygen demand (BOD), he concludes the operation in the quarry will not artificially decrease the available oxygen below the required amount. The BOD demand in this area would not be threatened by the lake. As to the iron standard and other toxic substances, Dr. Roessler does not believe that the project will create a violation of the standard nor will any runoff increase dissolved iron in adjacent waters. Hydrogen sulfide and pharasulfide standards will similarly not be violated. Sulfides are found only in trace amounts, if at all, in natural waters. In deep limestone lakes the chemical structure is not conducive to the formation of the acidic compounds. In short, Dr. Roessler believes the water in the mine would be very similar to that found in other rock quarries in the area. These lakes are a dominant portion of the recreational fresh water fishing availability. This instant lake also will, in time, upon development of the food chain for the fish, become an equivalent fishing habitat. Dr. Roessler concurs with Dr. Tabb regarding the flora on the site, which he observed himself. This site is 15 to 18 miles from marine or estuarian waters and to reach them one would have to go down a series of canals and past a saline dam to the coast. Any runoff from the site in question would have, if any, a minuscule effect on marine waters. This site was originally a wet prairie which was drained by the Golden Gate Canal System. As such it is a relatively poor habitat for life forms generally found in cypress wetlands. Creation of this lake will, in the opinion of Dr. Roessler, enhance the game, fish, and recreational activity of the area. It would be a benefit to the animal population to have a water source for drinking during drought. There would be no adverse effect on public health, safety or welfare. Turning to the major issue of water, Dr. Thomas Missimer, a hydrogeologist specializing in ground water, visited the site, examining the canal on the east side, and the soils and rocks exposed. He took soil borings and examined the site hydrology to see what fluctuations occurred in the water levels due to rainfall. Mr. Missimer, took numerous readings from September 18 through November 5, 1987 during a period of wet weather including a tropical storm. He carefully compared the site geology to other sites he had studied and compared the flow of water through the soil. He compiled existing information on chemistry in the streams in the area to see what the natural conditions were. He looked at other man-made lakes in the area which were previously borrow pits. As a result of his studies, he concluded that the groundwater level throughout the entire period never got higher than three feet below the land's surface and often was five feet below. During the previous July through September, 34 inches of rain fell in the area which was, in his opinion, average to above average. There is some evidence, however, to indicate that rainfall in the area was approximately 33 percent below average during the period. Nonetheless, Mr. Missimer took a measurement the day after a tropical storm had deposited three inches of water on the land. The water level at that time was still three feet below land level, and there was no standing water. Both the three foot and the five foot level are well below the top of the berm sloped at 10:1 as is proposed in the restoration plan submitted by Dr. Tabb. This site has, from a hydrological standpoint, been greatly affected by the installation, of the 8 Mile Canal and the canal system to the north. As, a result of this activity, standing water has not existed for many, years since the dredging of those canals. If de-watering is a necessary portion of the mining plan, any waters removed thereby would be retained in the impoundment area described by Mr. Brundage and switched back and forth. As proposed, the plan can completely avoid any impact to off-site property by water runoff. Construction of the pit and the lowering of the water level thereby will not have a major impact on the groundwater in the surrounding areas. Any effect would taper off as the distance increased from the site and would be of little significance. This proposal would also have little, if any, impact on groundwater quality. In Mr. Missimer's opinion, water quality is currently good and will stay good. This type of rock mine is very common in the area incident to construction. Some have been used as a source of potable water by The City of Naples; by Deltona Utility Company for Marco Island; and the south area of the County. These resources are still being used. There is little difference between those currently being used as potable water sources and the proposed lake here. Mr. Missimer also indicates the project will have little impact on the sheet flow of water. Sheet flow no longer exists here because of the canals and roads already existing. If there were a sheet flow created by a very heavy rain, this pit would have no impact on it. The water level in the lake will be approximately the same as exists in the ground currently and in the 8 Mile Canal. There should be no shoaling in the canal due to the project, and the presently existing spoil bank on the west side of the canal already prevents flow into the, canal from this land. If this pit is properly constituted and maintained, and if proper mining procedures are followed there should be no effect on the 8 Mile Canal to the east or the Alligator Alley Canal to the south. There is no surface water connection currently existing between this site and either canal. As to the issue of dissolved oxygen, the currently existing groundwater on the site and in the surrounding area has little or no dissolved oxygen in it. Water coming into the lake will be groundwater low in dissolved oxygen, which is identical to the water which currently goes into the canal system. The canal gets very little oxygen from the wind because it is so narrow. The lakes to be constructed, on the other hand, will get a large amount of oxygen from the 56 acres of water exposed to the open air. Consequently, construction of the lakes would increase the dissolved oxygen content of the water in the area, at least in the lakes, down to a level of several feet. This is a positive factor. Mr. Missimer recognizes, however, that during the dry seasons, when the lake is fed solely by groundwater generally low in dissolved oxygen, the lake water which has been converted to surface water may fail to meet the Department's surface water standards for dissolved oxygen. Warmer weather generally results in lower dissolved oxygen readings and, admittedly, Respondent's readings were taken in December when the dissolved oxygen levels are higher. As a result, the comparative samples which were taken in December are not necessarily indicative of what will be the situation in the lake, year- round. Respondent's witnesses present a more dismal picture of the effect of Petitioner's proposed project. Mr. Bickner, an Environmental Supervisor with DER's Bureau of Permits and himself an expert in water quality, zoology, and ecosystem biology, first became involved with this project while the permit request was being processed in late 1986. This application was a standard form project because of the quantity of material to be excavated. As a part of his processing, Mr. Bickner requested evaluations of the project from other agencies and divisions within DER and, on the basis of his personal evaluation and the recommendations he received, concluded that the application was not permittable. He recommended it be denied. Mr. Bickner considered Petitioner's application under the provisions of Chapter 403.918, Florida Statutes, which requires a two step evaluation. In the first step, the project must be determined to meet water quality standards. If it does, as a second stage, the project must be determined not to be contrary to the public interest. The major water quality standard in issue here was that of dissolved oxygen along with that concerning BOD and other deleterious substances. The water body involved was classified as a Class III Water under the provisions of Rule 17-3.121, Florida Administrative Code, since it was designed to be a recreational, fish and wildlife habitat. The standards contained in the statute and the rule relate to surface water as opposed to groundwater and, as to the public interest question, Chapter 403 provides a list of seven factors which must be evaluated. In this determination the agency has wide latitude and no one factor is controlling. In evaluation, agency personnel try to look at the project overall. Specifically, the project cannot cause or contribute to an existing water quality violation. In evaluation, agency personnel do not look at the project by itself. They must keep in mind that other projects exist or are proposed for the area. This is known as the cumulative impact of the project which is provided for in Section 403.919, Florida Statutes. As to the variance requested, this is also provided for by statute. The criteria require that the petition be based on some specific ground. In the instant case, the ground utilized by Petitioner was that there was no alternative to the dissolved oxygen level proposed. Granting of a variance is totally within the discretion of the Department even if Petitioner can show grounds therefor. Mr. Bickner was at the site only once. He approached from the south. At the low end of the approach was a mixture of wetlands and upland vegetation, but as he got toward the site the upland species dropped off and only the wetland species only remained. These were primarily sawgrass, cattails, and the like. He was satisfied that there was no obvious break in jurisdiction, and the testimony of Mr. Beever confirmed that jurisdiction over the site was gained through the wetlands character of the property from the site down to the Alligator Alley Canal, which is considered a water of the state. The site consists primarily of sawgrass and muhli grass with minor amounts of other grasses. The site seems to rise toward the 8 Mile Canal where there is an invasion of Brazilian peppers and other exotic species. Mr. Bickner was looking for upland species and found only one specimen of one species, a few of another, and no invasion of slash pine on the site at all. As a result, he concluded that the site was not an upland site. There was no standing water on the site at the time Mr. Bickner visited it, but the soil was wet to the surface. In addition, there was a large number of recently dead shells in low spots which had held water. There were some tracks of a large animal and a large number of smaller animal tracks and scats (scats are animal droppings). He also saw some birds which were too far away to identify and observed what he thought were crayfish tunnels near the cypress trees. Mr. Bickner found evidence of dried periphyton widely scattered over the site. Periphyton, an algae which attaches itself to other plants and which in times of inundation, forms sheets across the water connecting one plant to another, is a sign of previous inundation. The other plants on the site were not showing water deprivation stress, and there was no evidence of upland species invasion. All of this leads Mr. Bickner to conclude that the area has plenty of water and this opinion was enhanced by the lushness of the plants' growth. This, along with the high diversity of plant life, indicated to him a healthy ecosystem. To Mr. Bikner, the fact that the area was not currently inundated is not significant. In this particular area there are wet and dry seasons and, even in the dry season such as existed at the time of his visit, the soil was wet. The signs he saw indicated to him there has to be standing water on the site at some time. His visit was in January, which is well within the dry season. As to water quality, Mr. Bickner does not believe that the water quality standards will not be violated. In fact, by the nature of the project, Petitioner has, in Mr. Bickner's opinion, assured that it will be violated. A 20 foot deep pit must, in his opinion, result in low levels of dissolved oxygen below standards. Any water below seven foot in depth has little dissolved oxygen. Most dissolved oxygen is in the surface water, and there is little exchange between deep and surface waters. As a result, he concludes that the groundwater has low dissolved oxygen, a fact confirmed by Mr. Missimer. Dissolved oxygen is the only source of oxygen for fish and aquatic animals. Without dissolved oxygen, the fish die. There are currently no fish on the property. Mr. Bickner was also concerned with the biochemical oxygen demand which would further reduce the oxygen levels in the water. He was further concerned with the hydrogen sulfide levels coming from deterioration of plant material in the bottom of the pit, and iron which he found to be already in the groundwater. Mr. Bickner contends that during construction of the pit petro- chemicals will be introduced into the water, and that during the construction period the on-site water will have increased turbidity which will most likely be transmitted off-site as the pit is de-watered. There are management procedures which can reduce the risk, but none can avoid it entirely. Mr. Bickner is satisfied that the water quality standards will not be met. It is so found. Mr. Bickner also evaluated the property from the public interest standpoint, and in that regard he is satisfied there is a substantial potential for damage to adjacent properties by de-watering. Based on his experience and observation of other projects, he is satisfied there is no way to keep people employed on the site from using adjacent property for parking and vehicle maintenance. The witness believes that the 56 acres of habitat removed by the lake, and the remaining acres, which will be replanted, will be permanently impacted. While he admits that the property as it currently exists, may not be a prime habitat for the panther, there is some evidence which indicates panthers do cross it. He is concerned that the applicants submission here does not sufficiently answer all the questions as to impact on the public interest. The mechanics of the maintenance yard, soil storage and other potential areas of trauma are not explained satisfactorily, and Mr. Bickner does not see how all that is proposed can fit on the site. As a result, in his opinion, there must be some off-site impact. As to cumulative impact, since the valuable rock does not lie only under Petitioner's property, owners of the surrounding property may want to mine their properties as Petitioner proposes to do. If that happens, Mr. Bickner cannot explain how the Department can deny these subsequent applications. If the current application is permitted, taken together with the others, there would be a serious effect on the panther population. This opinion is not supported by evidence, however. If the public interest test is the only basis for disqualification of the project, (here the water quality test is also not met) a permit can still be granted if the applicant agrees to take appropriate mitigation steps at the site. Mr. Bickner is of the opinion that the applicant's mitigation plan to create the 100 foot wide shelf around the lake is not the same type of system which currently exists, will not fulfill the same function as the present property, and is not sufficiently large to replace what is being lost. One basis for granting the variance suggested by the Petitioner was the public interest, (the material was to be used for a public road), and the other was that there was no alternative way to get the material. While it is possible the rock would be used for public road, Mr. Bickner was concerned no assurances were given by the Petitioner that it would be. No contract has been signed yet, and Mr. Bickner is not satisfied that the letter from the Department of Transportation, indicating the rock there would suit its purpose, is sufficient indication that a contract would be signed. There is a possibility of making the pit shallower, which would permit the dissolved oxygen content of the lake water to meet state standards, but even if that problem were solved, Mr. Bickner is not satisfied that Petitioner has met the public interest test. Respondent has granted three permits and a variance to the Department of Transportation to build a portion of I-75 across Alligator Alley in Collier County. These permits are for the dredging of canals parallel to the roadway and to develop a borrow lake of 73.1 acres to be excavated to a depth of from 6 to 9.7 feet. The variance in question applies to all three projects and relates to the dissolved oxygen level. The DOT variance was applied for on the basis that no practical means for avoidance of the pollution existed. The Department of Transportation did not request a variance for BOD or for toxic and deleterious substances or iron. Mr. Bickner, admitted that these permitted projects would possibly have the same problem of oils and greases as he foresees with Petitioner's project. Nonetheless, he concludes that Petitioner's project should not be permitted, even though the Alligator Alley canals are already below standards, because to do so would contribute to a currently existing violation. Mr. James Beever, an Environmental Specialist with the Department of, Environmental Regulation, visited the site on several occasions, both on the ground and from the air. He observed much of the same flora and fauna observed by the other visitors who testified in this case and took color photographs of the area which portray the character of the property. All of the plants he discovered on the site are on the DER jurisdictional list and, on at least one occasion, from the air, he saw standing water on the site. In his opinion, the property is a fresh water wet prairie system which is admittedly drier than it should be. The plants he saw on the site indicate the jurisdiction of DER if there is a connection to other waters of the state, and in Mr. Beever's opinion, there is connection through the flow of sheet water south from the site to the I-75 (Alligator Alley) canal; then, east to the 8 Mile Canal; then south to the Fuqua Union Canal which empties southwest to the Gulf of Mexico. In his opinion, therefore, this is definitely jurisdictional land, and it is so found. The site supports an underground system of roots as well as the upper portion of the, plants existing thereon. He observed periphyton and many other animal tracks and scats. He also saw signs of regular inundation such as numerous snail shells, and he is satisfied there is no indication of a change in the area from the wetlands to an upland area. Admittedly, the area has been dry for a while. Even after Hurricane Floyd in 1987, there was no standing water. The site is, in his opinion, definitely productive, however. The vegetation existing thereon stabilizes the soil and provides food for snails, insects and crayfish which are on the bottom of the foodchain for other life forms on the property. The grasses provide a habitat for animals such as cotton rats, roosts for birds, pollen for insects, all which, themselves, become food for the larger animals. This wetland is a part of a large wetland prairie system and part of the Fuqua Union drainage basin, and acts as a filter for the water system for the area. According to Mr. Beever, most borrow pits like this are located on uplands which then provide rain water lakes. The instant pit, however, is in a wetlands area and if built, he believes, will engender violations during the mining operation. Groundwater coming in will contain iron and hydrogen sulfide which will combine with the dissolved oxygen in the water and further deplete the already low oxygen levels. All of this will constitute a violation of the rules regarding waters of the state since the waters within the pit would fall within that category. Mr. Beever is also concerned with the `bridge over the 8 Mile Canal and the turbidity connected with its construction and removal. In substance, Mr. Beever is convinced that construction of the project will create violations of the water quality standards for the area. As to the public interest, the wetlands character of the site will be completely lost. The vegetation will be removed, and the animals utilizing it will either leave or be destroyed. After, construction, some natural healing will occur, but a long-term maintenance program will be required to provide even different functions for the land than those which currently exist. In that regard, Mr. Beever is convinced that the applicant's proposed restoration plan is not acceptable. It will not replace the lost functions of the site; it will replace the species removed with a different ecosystem; it will provide a habitat for different species of animals and birds; it will adversely affect the shoaling and erosion in the lake itself (this is found to be without merit); it will have some adverse effect on the property of others; and will have an adverse cumulative impact on the area. The habitat will not be used any more by endangered species such as the wood stork and the panther. Even assuming, arguendo, the plans were suitable, in Mr. Beever's opinion, the project would not work here because of the lack of information on what the actual water level of the lake will be. The plant species proposed may not remain because of possible changes in water level in the lake. In addition, the marl berms will dry out over the three years of their life while the pit is being worked, and form a location for a lot of invasive upland plants. Much of Mr. Beever's concern is shared by Mr. Barnett, of the Game and Fresh Water Fish Commission, who indicated that birds now frequently use the area for nesting and feeding because of its wetlands character. Endangered species such as the Florida panther cross it from time to time as does the Florida black bear. Human encroachment reduces the panther's territory and reduces the area for forage of deer, which are the principal food of the panther. The bigger issue, however, is the cumulative impact. The 80 acres is not so important by itself, but to permit its removal would set a precedent for future encroachment by others. Mr. Barnett's experience is that restoration plans are quite often not successful. Even the successful ones, however, replace the removed system with a different system, and the species which now use the property would find it much less desirable as changed. Specifically, the bear, the deer, and the panther would find it unusable as proposed. At the present time, the deer spend their days in the pines forest to the north of the property, coming out onto the area, in question only at night to feed. It is during the night that the panther stalks. As presently constituted, this property is of no benefit to the wood stork or the red cockaded woodpecker. The Cape Sable sparrow could use it but does not. The development of Golden Gate Estates to the north and east and south of the property has a two pronged effect on the area in question. The southern portion of Golden Gate Estates has been abandoned, but the central and northern portions will be developed. On the one hand, it is likely that the increased population to the north and east will make the Petitioner's property less desirable and make access to it more difficult for the wildlife currently utilizing it. On the other hand, removal of the northern and central portions of Golden Gate from usable area for the panther and other species make it more important that Petitioner's area, which Barnett claims is not likely to be developed, remain as an animal habitat to offset the encroachment of the development area. There is no evidence to support this prediction of non- development, however. History tends to indicate otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner be issued a dredge and fill permit as requested and a variance to the state water quality standards as identified in the request. RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida. 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 29th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1469 AND 87-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 2. Accepted. 3 - 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted. 9 - 14. Accepted and incorporated herein. 15. Accepted. 16 - 17. Accepted and incorporated herein. 18 - 19. Accepted and incorporated herein. 20. Accepted. 21 - 23. Accepted and incorporated herein. 24. Not a Finding of Fact. 25 - 26. Accepted and incorporated herein. 27 - 28. Accepted and incorporated herein, except for finding it is likely that more wildlife will use the site after construction. Rejected as speculation. 29 - 30. Accepted and incorporated herein. 31 - 33. Accepted and incorporated herein. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36 - 38. Accepted and incorporated herein. 39. Accepted and incorporated herein. 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42. Accepted. 43 - 44. Rejected as contra to the evidence. Accepted. Accepted and incorporated herein. For the Respondent 1 - 3. Accepted and incorporated herein. 4 - 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. 21. Accepted and incorporated-herein. 22 - 25. Accepted and incorporated herein. 26 - 33. Accepted and incorporated herein. 34 - 35. Accepted and incorporated herein. 36. Rejected as contra to evidence presented. 37 - 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42 - 43. Rejected. 44. Accepted and incorporated herein. 45 - 47. Accepted and incorporated herein. 48 - 60. Accepted and incorporated herein. Rejected. Accepted in part - (temporary). Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Unproven. Accepted. Accepted and incorporated herein. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert Routa, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined in this case is whether the City of Tarpon Springs (“City”) is entitled to a industrial wastewater facility permit for its proposed discharge of demineralization concentrate into the Gulf of Mexico adjacent to Pasco County, Florida.
Findings Of Fact The Parties Henry Ross is a resident of Tarpon Springs. In his petition for hearing, he alleges that he is a recreational fisherman and a "consumer of fish taken from the area" where the proposed wastewater discharge would occur. He presented no evidence at the final hearing to prove these allegations. Neither the City or the Department stipulated to facts that would establish Ross's standing. The City of Tarpon Springs is a municipality in Pinellas County and the applicant for the industrial wastewater permit that is challenged by Ross. The Department is the agency charged by law with the duty, and granted the power, to regulate the discharge of pollutants into waters of the State. The Proposed Permit - General Due to the cost of obtaining potable water from Pinellas County Utilities, the City decided to look for another source of drinking water. In February 2004, an alternative water supply plan was developed by the City’s Office of Public Services which analyzed potable water supply options. It determined that the withdrawal and treatment of brackish groundwater represented the best option for the City. The proposed permit authorizes the City to discharge industrial wastewater into waters of the State. The wastewater is demineralization concentrate, which is produced when RO technology is used to remove salts from brackish water to convert it to potable water. The wastewater would be produced in conjunction with the operation of a not-yet-constructed WTP that would supply public drinking water to the residents of the City. The City must also obtain a consumptive use permit from the Southwest Florida Water Management District for the proposed withdrawal of groundwater. Whether the Town is entitled to a consumptive use permit is not at issue in this proceeding. The industrial wastewater permit would authorize a maximum daily discharge of 2.79 million gallons per day ("mgd") of RO concentrate. The initial operation of the WTP, however, is expected to discharge 1.05 mgd. The RO concentrate would be transported via a force main from the WTP in the City to an outfall in Pasco County. The outfall would discharge the wastewater into a canal which is already being used for the discharge of cooling water from Progress Energy Florida, Inc.’s Anclote Power Generation Facility. The outfall would be 50 feet north of the point in the canal where Progress Energy is required to demonstrate compliance with its own permitting requirements, so as not to interfere with Progress Energy's ability to demonstrate compliance. There is a floating barrier in the channel north of the proposed point of discharge, and a fence along the side of the canal, to prevent swimmers, boaters, and persons on foot from getting near the Progress Energy power plant. The floating barrier and fence would also prevent swimmers, boaters, or pedestrians from reaching the proposed discharge outfall and the area of the canal where the discharge will initially mix. After being discharged into the canal, the wastewater would become diluted and flow northward, out of the canal and into the open waters of the Gulf. The prevailing currents in area would most often force the wastewater south toward Pinellas County and the mouth of the Anclote River. To determine the characteristics of the wastewater, the City's consultants collected water from the three proposed well fields for the new WTP and ran the water through a small, pilot-scale RO unit to generate an RO concentrate that is representative of the proposed RO discharge. It was determined that eight constituents of the wastewater would likely be present in concentrations that would exceed applicable state water quality standards: aluminum, copper, iron, gross alpha (a radioactivity measurement), total radium, selenium, nickel, and zinc. The Mixing Zones The Department may authorize mixing zones in which a wastewater discharge is allowed to mix with the receiving waters. See Fla. Admin. Code R. 62-4.244. Within the mixing zone, certain minimum water quality criteria must be met. At the outer boundary of the mixing zone, the applicable state water quality standards must be met. In this case, the water quality standards for Class III marine waters are applicable. The City's consultants analyzed the wastewater, receiving waters, and other factors and used an analytical model to simulate a number of mixing scenarios. In cooperation with Department staff, a separate mixing zone was established for each of the eight constituents that are not expected to meet water quality standards at the outfall. The largest mixing zone, for copper, is 1,483.9 square meters. The smallest mixing zone, for nickel, is 0.7 square meters. The mixing zones are conservatively large to assure sufficient mixing. Under most conditions, the mixing is expected to occur in a smaller area. Toxicity Analysis Among the minimum criteria that must be met within a mixing zone is the requirement to avoid conditions that are acutely toxic. See Fla. Admin Code R. 62-302.500(1)(a). A wastewater discharge is tested for potential acute toxicity by exposing test organisms to the undiluted discharge and determining whether more than 50 percent of the organisms die within a specified time period. The test organisms, mysid shrimp and silverside minnow, are sensitive species. Therefore, when a discharge is not acutely toxic to these organisms, it can be reasonably presumed that the discharge would not harm the native organisms in the receiving waters. The acute toxicity test for the proposed RO concentrate indicated zero toxicity. The Department requested that the City also analyze the potential chronic toxicity of the proposed discharge. A wastewater discharge shows chronic toxicity if exposure to the discharge adversely affects the growth and weight of the test organisms. The tests performed on the representative discharge showed that the proposed discharge of RO concentrate would not create chronic toxicity in the mixing zones. Petitioner’s expert witness, Ann Ney, did not review the toxicity analyses or other water quality data that were submitted to the Department by the City. However, she expressed a general concern about a salty discharge that could create stratification in the canal with higher salinity at the bottom of the canal that might be hypoxic (little or no dissolved oxygen). The more persuasive evidence shows that salinity stratification, or a hypoxic condition, is unlikely to occur. The proposed permit requires the City to conduct quarterly chronic toxicity tests. The permit also requires the City to periodically test the water and sediments for any unexpected cumulative effects of the discharge. Evaluation of Disposal Options Florida Administrative Code Rule 62-620.625(6) requires that an applicant for a permit to discharge demineralization concentrate must investigate disposal options potentially available in the project area. The City evaluated blending the discharge concentrate with the City's re-use water irrigation program or with the City’s domestic wastewater discharge into the Anclote River. The RO concentrate was too salty for irrigation use and there was an inadequate volume of domestic wastewater available throughout the year. In addition, the Anclote River is an Outstanding Florida Water and, therefore, is afforded the highest water quality protection under Department rules. See Fla. Admin. Code R. 62-4.242(2). The City also looked at underground injection but that was economically unreasonable and there was concern about upward migration of the discharge. It was economically unreasonable to discharge the concentrate farther out into the Gulf. Anti-degradation Analysis For a proposed new discharge, a permit applicant must demonstrate that the use of another discharge location, land application, or recycling that would avoid the degradation of water quality is not economically and technologically reasonable. See Fla. Admin. Code R. 62-4.242(1)(d). As discussed above, the City investigated other disposal options, but they were not economically or technologically reasonable. An applicant for a permit authorizing a new discharge must demonstrate that any degradation is desirable under federal standards and under circumstances that are clearly in the public interest. See Fla. Admin. Code R. 62-302.300(17). In determining whether a proposed discharge is desirable under federal standards and under circumstances that are clearly in the public interest, the Department is required by Rule 62-4.242(1)(b) to consider the following factors: Whether the proposed project is important to and is beneficial to public health, safety or welfare (taking into account the policies set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. The proposed project is important to and is beneficial to public health, safety or welfare because it would provide drinking water for the public. In addition, the treatment and use of brackish groundwater converts otherwise unusable water into a valuable resource. The use of brackish water avoids the use of water in the surficial aquifer that is used by natural systems, such as wetlands. The Florida Legislature has found that the demineralization of brackish water is in the public interest, as expressed in Section 403.0882, Florida Statutes (2010): The legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water by-product treatment technology, sound waste by-product disposal methods, and regional solutions to water resources issues. The proposed discharge would not adversely affect conservation of fish and wildlife. Because the discharge is not toxic to sensitive test organisms provides reasonable assurance that the native fish and other aquatic life would not be adversely affected by the discharge. The only identified threatened or endangered species that frequents the canal waters is the endangered Florida Manatee. Manatees use the canal because of its relatively warm waters. Manatees come to the surface to breathe and they drink fresh water. There is no reason to expect that a manatee moving through the mixing zones would be adversely affected by the RO concentrate. The Florida Fish and Wildlife Conservation Commission, which has primary responsibility for the protection of endangered and threatened species, did not object to the proposed permit. Manatees and many other aquatic species use seagrasses as food or habitat. There are no seagrasses in the area of the canal into which the RO concentrate would be discharged, but there are dense seagrass beds nearby. The proposed discharge would have no effect on the seagrasses in the area. The proposed discharge would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Because the proposed discharge is non-toxic and would meet Class III water quality standards before reaching the closest areas where humans have access to the canal and Gulf waters, there is no reason to believe that the proposed discharge would be harmful to humans. The proposed discharge would not adversely affect recreational activities, such as swimming, boating, or fishing. Petitioner presented the testimony of two fishermen about fishing resources and water flow in the area, but no evidence was presented to show how the proposed discharge would reduce marine productivity. Petitioner contends that the proposed discharge would adversely affect the Pinellas County Aquatic Preserve. However, the aquatic preserve is two miles away. The proposed discharge would probably be undetectable at that distance. It would have no effect on the waters or other resources of the aquatic preserve. With regard to the requirement that the proposed discharge be consistent with an adopted and approved Surface Water Improvement and Management Plan for the area, there is no such plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department issue a final order determining that Petitioner lacks standing, and approving the issuance of the industrial wastewater facility permit to the City. DONE AND ENTERED this 16th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2010. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas J. Trask, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Henry Ross 1020 South Florida Avenue Tarpon Springs, Florida 34689 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
