The Issue The issue to be determined in this proceeding concerns whether the applicant has provided reasonable assurances that the proposed bridge project will meet the requirements of Chapter 403, Florida Statutes, and the various provisions contained in Title 17, Florida Administrative Code, so that a dredge and fill permit should be issued. More specifically, the issues concern whether the various water quality standards embodied in Title 17 of the Code and Section 403.918(1), Florida Statutes, will be complied with and whether the public interest standards in Section 403.918(2), Florida Statutes, will be met in the sense that the project can be assured not to be contrary to those standards.
Findings Of Fact Taylor County, through its duly-elected representative body, the Taylor County Commission, has filed an application seeking authority, by the grant of a "dredge and fill permit", to place fill material and to perform construction of a bridge across an unnamed canal in Taylor County, Florida, in the vicinity of Keaton Beach. The proposed bridge would connect Balboa Road and Marina Road on Pine Island in the community of Keaton Beach. Pine Island is an elongated strip of land separated from the Taylor County mainland by water and lying generally in a north/south direction. It is an artificial island created by dredge spoil from dredging activities by which certain canals were constructed during the decade of the 1950's. It is bounded on the west by what is known as "Main Canal", on the north by an unnamed canal, and on the east by what is known as "Back Canal". South of Pine Island is an inlet of the Gulf of Mexico. The canals involved in this proceeding, named above, are Class III waters of the State of Florida. Marina Road runs down the center of Pine Island. Lots to the west of Marina Road abut Main Canal and lots to the east of that road abut the Back Canal. Pine Island has been platted into approximately 110 lots. There were 47 homes and two (2) trailers on Pine Island at the time of the hearing. Only 17 full-time residents live there. Keaton Beach Road, also known as County Road 361, runs in a north/south direction generally and relatively parallel to Marina Road on land lying across Main Canal from Pine Island. In the past, Pine Island Drive connected Keaton Beach Road and Marina Road. It traversed Main Canal over what was known as the "humpback bridge", a wooden structure. The bridge ultimately became decayed and hazardous so that it was removed by the County in 1983. East of Pine Island, forming a continuation of Pine Island Drive, is a limerock road. This road presently provides the only vehicular or pedestrian access to Pine Island. It crosses the Back Canal over a culverted-fill area, making a 90 degree turn to the north and runs north along Back Canal. It then turns in an easterly direction until it meets Balboa Road. The property to the east of the center line of Back Canal and to the east of Balboa Road belongs to Dr. William Kohler. Other than the one-half of the culverted-fill area that lies west of the center line of Back Canal, the limerock road is on Dr. Kohler's land. In 1974, Taylor County was concerned about the use of the humpback bridge by school buses. It asked Dr. Kohler to grant it an easement over the limerock road for use by school buses. That limerock road passes over portions of Lots 44 and 45. Although Lots 44 and 45, east of Balboa Road, were not included in the written easement, Dr. Kohler has allowed use of the limerock road that passes over portions of Lots 44 and 45 since that time. Balboa Road presently terminates in a cul-de-sac at the edge of the unnamed canal that bounds the north end of Pine Island. On Pine Island, Marina Road is paved at the present time past the front of and to the northern property boundary of Lot 13, Petitioner Brumbley's residence lot. At that point, Marina Road ends at the south side of an unnamed dirt road. Between the north side of that unnamed dirt road and the unnamed canal lie Lots 2-6. The proposed Balboa bridge will start at the end of Balboa Road, cross the unnamed canal, cross a portion of Lot 2 and 3 on Pine Island, and tie into the existing grade at the "T" intersection where Marina Road deadends into the unnamed dirt road. The unnamed canal runs approximately east and west at the location of the proposed bridge. The bridge would be constructed on top of revetted fill material that will be placed to the north and south of a 15-foot wide span over the middle of the unnamed canal. The bridge construction shall be according to the Florida Department of Transportation specifications for road and bridge construction. The bridge will have a DOT approved guard rail on each side. No water quality violations will result from the proposed project. Turbidity violations may occur on a temporary basis during construction and so turbidity screens and silt barriers will be installed by the applicant to prevent such turbidity from migrating away from the site itself. A condition on the grant of the proposed permit has already been agreed to by the Respondent parties which will require turbidity and erosion-control devices prior to any excavation or placement of fill material. Specific condition eight also requires that these control devices remain in place until the fill has been vegetatively stabilized after construction is over. The proposed project will have a positive impact on public safety and welfare by providing proper and appropriate access to Pine Island by a more stable, safe roadway to which the bridge will be connected. During periods of high water, the present limerock access road floods, limiting emergency access to the Island. On one occasion, an injured person had to be carried down the limerock road to meet an ambulance at another location because the ambulance was unable to traverse the flooded limerock road. It is Dr. Kohler's intention to terminate use of the limerock road by members of the public since it is on his property. When that occurs, there will be no access to Pine Island unless the proposed bridge is built. The present limerock access road can be dangerous and slippery when wet, and persons using the limerock road often travel "dangerously fast", as testified to by Petitioner, Doris D. Brumbley. The 90-degree turn of the limerock road has no guardrails. The proposed project will, to a minimal, temporary degree, adversely impact fish or wildlife and their habitats, marine productivity and the current condition and relative value of functions being performed by the area affected by the proposed bridge. The canal system was originally excavated out of the salt marsh. Being man-made structures, their sides have slumped somewhat and have established a small, littoral zone where vegetation grows. Mud flats at the bottom of the canal bank allow the growth of oysters. The fill area associated with the proposed bridge, however, will have a surface area and volume comparable to the culverted fill that will be removed at the point where the road presently crosses Back Canal. When the culverted-fill area or plug across Back Canal is removed, the lost vegetation and oysters will become re- established at that location, offsetting the loss that will occur at the location of the bridge. Various marine species will also become established on and benefit from the shelter of the bridge and its structure, as well. The project will not cause harmful erosion or shoaling. The banks that will result from the removal of the culverted fill and the sides of the filled areas associated with the bridge will be protected from erosion with vegetation and revetments. The proposed project will enhance the flow of water in Back Canal and will improve navigation and flushing. Water flow through the existing culvert is presently considerably restricted when compared to the water flow beneath the proposed Balboa bridge area. The existing culvert is not at the bottom of the filled area. Therefore, at low water, most of the culvert is exposed, precluding the culvert from functioning at maximum capacity to aid in flushing with the water quality benefits caused by flushing being thus retarded. The lack of water flow has caused a portion of Back Canal, south of the culverted-fill area, to fill up with sediment. At low tide, parts of the Back Canal are without water. The increased flow that will result from removal of the fill plug and culvert where the road presently crosses Back Canal will allow property owners along Back Canal to navigate their boats out into the Gulf of Mexico, thus improving the recreational value of Back Canal and the navigation in the canal system. There are no similar fill projects planned for or expected in the Keaton Beach area. All three Petitioners are concerned that storm water runoff from the proposed bridge will flood their property, however. At the present time, the road in front of the Petitioners' lots is paved, with the pavement ending at the northernmost end of the Brumbley property. Since the Petitioners' lots already receive roadway runoff from the existing paved road, any increase in runoff to their lots would have to come from storm water flowing along the length of the road from the proposed project. The road which is to cross the proposed bridge will be composed of a 20-foot wide strip of asphalt, with 5-foot shoulders on each side. The slope from the crown of the road to the outer edge of the pavement will be one-quarter inch per one foot. The shoulders will have a slope of one-half inch per foot. Thus, rain water will flow off the sides of the road and down the shoulders, rather than down the length of the road towards the Petitioners' lots. Moreover, no additional water should be directed to the Petitioners' lots since the proposed road extension between the end of the bridge and the Petitioners' lots would be flattened. Water flowing off the bridge due to gravity will be shed toward the revetment which extends down to the canal, rather than towards the Petitioners' property. Storm water impacts will be addressed again by the Suwannee River Water Management District. A storm water permit application has been submitted to the Suwannee River Water Management District and is required before the proposed project construction can start. In that storm water permit application, the applicant acknowledged its obligation and responsibility to obtain all required permitting before construction starts. The draft permit reinforces this at specific condition six: "This permit does not constitute any approval of the storm water management system which must be obtained separately from the appropriate agency." All of the Petitioners are concerned about the increase in vehicular traffic which would pass in front of their lots and the Brumbley's particularly are concerned that light from headlights of increased traffic will be cast upon and into their house at night. It is clear that traffic passing the Petitioners' lots will increase due to the proposed project. It is equally clear from the angle of the bridge shown on Joint Exhibit 2 and the elevations of the bridge, shown on Joint Exhibit 3, that light from the headlights of vehicles approaching Pine Island after dark will illuminate, at least momentarily, portions of the Brumbley home.
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 the application of the Taylor County Commission for the dredge and fill permit at issue, as described in the above Findings of Fact and Conclusions of Law, be granted on the terms and conditions set forth in the Department's draft permit, in evidence as Joint Exhibit 7. DONE AND ENTERED this 3rd day of April, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER Respondent DER's Proposed Findings of Fact: 1-24. Accepted. Petitioners' Proposed Findings of Fact: None filed. Respondent Taylor County Commission's Proposed Findings of Fact: The County adopted the proposed findings of fact filed by the Department. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulatin Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William & Maria Greene P.O. Box 38 Madison, FL 32340 Doris S. Brumbley P.O. Box 742 Monticello, FL 32344 William H. Congdon, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Conrad C. Bishop, Jr., Esq. P.O. Box 167 Perry, FL 32347
Findings Of Fact On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6) The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6) After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7) Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8) The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition) If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy) On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5) On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)
Recommendation That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code. Done and Entered this 29th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602 Mrs. Thomas Berry 8375 35th Avenue, North St. Petersburg, Florida 33710 Ms. Julia Bancroft 1414 Cleveland Street Apartment No. 1 Clearwater, Florida 33515 Appendix A List of Public Witnesses Name Address Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground Old Town, Florida 32600 Mrs. Carl Shifflette Executive Vice President Suwannee River Citizens Assoc. Bell, Florida Peggy Seykora Route 3, Box 35 Old Town, Florida 32680 A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626 Wayne C. Locke Post Office Box 147 Chiefland, Florida Fred Judy Route 3 Old Town, Florida
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
The Issue The issue for consideration in this case is whether the Department of Environmental Protection should issue a permit to Sarasota Bay Hotel, Inc., to modify and expand an existing marina facility associated with an existing adjacent hotel, based on reasonable assurances from the applicant that the proposed project satisfies the applicable statutory and rule criteria.
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection (Department) was the state agency in Florida responsible for the review of environmental resource permit applications and for the regulation of water pollution in specified waters of the state. SBH is a Florida corporation and the general partner of Hotel Associates of Sarasota, Limited (Hotel Associates), the owner of the property in question. The complex at issue is composed of the Hyatt Hotel and certain submerged land underlying the proposed project. SBH is the authorized agency for Hotel Associates for the purpose of obtaining the permit in issue. Petitioners are associations of condominium owners whose properties lie adjacent and to the west of the site in question. The parties stipulated that all Petitioners had standing in this proceeding. The site at issue, owned by Hotel Associates, consists of a portion of the submerged bottoms within a sea- walled, rectangular-shaped, man-made basin which runs in a north-south direction west of U.S. Highway 41 in Sarasota. It is connected by a narrowed channel to Sarasota Bay at its southern end. Hotel Associates owns approximately the northern one-third of the basin, and Petitioners own approximately the western one-half of the southern two-thirds of the basin. Petitioners' property is not covered in the proposed permit. The remaining portion of the basin, comprised of the eastern one-half of the southern two-thirds, is owned by an entity which is not a party to this action, and that portion of the bottom also is not covered by the proposed permit. However, in order for boat traffic to reach the property in issue, the boats must traverse the southern two- thirds of the basin. Both Petitioners and the unconnected third owner maintain existing finger piers within their respective portions of the basin outside the portion in issue. The basin in which the marina in question is located is classified as a Class III water body and is connected to Sarasota Bay, which is a Class III Outstanding Florida Water. Sarasota Bay is located approximately twelve hundred feet from the head of the basin and approximately eight hundred feet from the southern property line of the basin. As of the date of the hearing, the applicant, SBH, operated a permitted marina facility within the perimeter of the property in issue. This permit was issued years ago after the fact; that is, after the marina had already been constructed. As it currently exists, the marina is made up of perimeter docks which adjoin the northern and eastern sides of the basin and includes eight finger piers which provide ten to fifteen slips. In addition, a perimeter dock extends around an existing restaurant which sits on pilings over in the northeast end of the basin. Repairs and modifications were made to the facility under then-existing exemptions in 1995. These included the replacement of numerous copper, chromium, and arsenic (CCA) treated pilings and the re-decking of existing walkways and finger piers with CCA-treated wood. At the present time, seven of the finger-pier slips are under lease to a commercial charter fleet, Chitwood Charters, and one slip located along the perimeter dock is leased to a dive boat operation, Scuba Quest. At least one other finger-pier slip has a boat docked at it for an extended period. This boat is owned by Charles Githler, president of SBH. The remaining finger-pier and perimeter slips are ordinarily used on a transient basis by guests of the Hyatt Hotel and the restaurant. The existing facility, including the finger piers slips and the perimeter slips, contains approximately 6,700 square feet of docking space and is designed to accommodate between twenty to thirty boats, depending upon the length of the boats. On occasion, however, as many as 40 to 60 boats have been docked at the facility. At times, when demand increases, the larger slips have been subdivided to allow up to four boats to be stern-moored per slip. Even more boats have been docked at the facility for boat shows by the use of stern mooring or "rafting," which calls for boats to be moored tied together, side by side, out from the docks. By application dated May 18, 1999, and received by the Department's Tampa District office on June 16, 1999, SBH sought to obtain from the Department a permit to modify and expand its existing marina facility. It proposed to expand the existing approximately 6,700 square feet of dock space to approximately 7,000 square feet, thereby creating a marina with 32 designated slips. Conditions to issuance of the permit, agreed to by the applicant, include a limitation on the number of boats which may be moored at the facility at any time and the addition of storm water treatment capability to the existing storm water drainage system. SBH also agreed to reduce the terminal end of the middle pier from 900 to 400 square feet. SBH also agreed to accept the imposition of several other permit conditions required by the Department, and to offset any impacts on wildlife and water quality as a result of the operation of the permitted facility. In addition to requiring that all long-term slip leases incorporate prohibitions against live-aboards and dockside boat maintenance, these conditions include the following: Overboard discharges of trash, human or animal waste, or fuel shall not occur at the docks. Sewage pump-out service shall be available at the marina facility. * * * 18. Fish cleaning stations, boat repair facilities and refueling facilities are not allowed. 20. There shall be no fueling or fueling facilities at the facility. * * * 28. The shoreline enhancement indicated on Attachment A shall be implemented within 30 days. * * * 30. The permittee shall perform water quality monitoring within the basin at the locations indicated on Attachment A semiannually (January and July of each year) for a period of 5 years. * * * All piles shall be constructed of concrete with exception of 18 mooring piles identified in permit submittals. This permit authorizes the mooring (temporarily or permanently) of a maximum of [32] watercraft at the subject facility. A harbormaster must be designated and maintained at the subject facility. In order to be in compliance with this permit, the ”OARS Ultra-Urban" hydrocarbon adsorbent insert, or Department approved equal, must be installed within the catch basin inlets as shown on the approved drawings. At a minimum, the hydrocarbon adsorbent material shall be replaced and maintained in accordance with manufacturer's instructions. More frequent inspections and replacement of the filtration media may be required, depending on local conditions and results of the required water quality monitoring. * * * The permittee/grantee/lessee shall ensure that: In order to provide protection to manatees during the operation of this facility, permanent manatee information and/or awareness sign(s) will be installed and maintained to increase boater awareness of the presence of manatees, and of the need to minimize the threat of boats to these animals. SBH has also agreed to replace existing CCA-treated wood decking with concrete and fiberglass decking and to replace approximately 80 existing CCA-treated wood pilings with concrete pilings. Based on its analysis of the permit application and the supporting documentation submitted therewith, the Department, on March 2, 2000, entered a Notice of Intent to issue the permit for this project. Shortly thereafter, on March 25, 2000, after obtaining a minimal extension of time to file, the Petitioners filed a Petition for Administrative Hearing opposing the issuance of the proposed permit. Departmental decisions on water quality permits such as that in issue here are dependent upon the applicant satisfying the Department's requirements in several identified areas. These include the impact of the project on water quality; impact of the project on the public health, safety, and welfare; impact of the project on the conservation of fish and wildlife, including threatened or endangered species; impact of the project on navigation, the flow of water, erosion and shoaling; impact of the project on the immediate fishing, recreational values and marine productivity; impact of the project on archeological resources; impact of the project on the current condition and relative value of functions currently performed by areas to be affected; whether the project is permanent or temporary; and a balancing of the criteria, cumulative impacts, and secondary impacts. Addressing each of these in turn, it is clear that the current quality of the water within the existing marina is below established standards. Respondents admit that Petitioner has shown that the existing marina operation has diminished water quality conditions and created an environment that has potential adverse impacts to the fish and wildlife which frequent the basin as well as some of the neighboring property owners. This is not to say that these impacts were envisioned when the basin was constructed. However, other than as they relate to fish and wildlife and to water quality, the problems created by the marina do not relate to most permit criteria. The Respondent's experts calculate that due to its configuration and location, the basin naturally flushes approximately every 14.75 days. This is an inadequate time period to fully disperse any pollutants found in the basis. As a result of the inadequate flushing and the continuing use of the basin as a marina, there are resulting impacts to the water quality surrounding the existing facilities. Mr. Armstrong, Petitioner's water quality expert, indicated the project as proposed would lengthen even further the flushing time because of the addition of new boats and, to a lesser degree, the additional pilings and dock structure. These additions would, he contends, result in additional obstructions to water movement and cause a resultant increase in flushing time. While flushing is not a requirement of the permit, it has a bearing on water quality which is a consideration. Petitioners also argue that the mitigation measures proposed in the permit are inadequate and attack the qualifications of Mr. Cooper, the Department's storm water engineer. They point out alleged errors in Cooper's analysis and cite Mr. Armstrong, an individual with significant experience in water quality monitoring and analysis, to support their other witnesses' conclusions that more boats will increase the risk of hydrocarbon pollution from gasoline and diesel engines. Petitioners urge that the increased contamination, when coupled with the slow flushing action, would tend to settle down to where the pollutants enter the water - in the basin. Since it is clear these impacts would exist and continue even were the pending project not constructed, the issue, then, is whether the proposed project will worsen these environmental impacts. Respondents' authorities calculate they would not. In fact, it would appear the proposed changes called for in the permit, the removal of CCA-treated wood and its replacement with concrete piling and decking and the installation of storm water treatment apparatus, would reduce the adverse impacts to water quality within the basin and, in fact, improve it. It is so found. An issue is raised in the evidence as to the actual number of boats which can effectively use the marina at any one time. SBH contends the present configuration calls for between twenty to thirty boats. Evidence also shows that at times, during boat shows for example, many more boats are accommodated therein through "rafting." Even if the facility is expanded by the most significant number of slips, there is no concrete evidence there would be a significantly increased usage. The current usage is normally well below capacity. Modifications proposed under the pending permit could add as many as ten to fifteen additional slips. The Department has considered it significant that SBH has agreed to limit the number of boats that can be docked in this marina, even after modification. Unfortunately, no specific figure has been given for this limit, and, therefore, it cannot be shown exactly how much long-term water quality benefit can be expected. Nonetheless, it is a reasonable conclusion to draw, as the Department has done, that if the number of boats is limited to a figure at or even slightly higher that that which is currently experienced, a long-term benefit can be expected with the implementation of the other mitigation conditions. This benefit currently cannot be quantified, however. What can be established, and all parties agree, is that the basin currently does not meet water quality standards for copper and dissolved oxygen. The proposed permit addresses the issue of dissolved oxygen by requiring SBH to follow best management practices in the operation of the marina; to treat storm water discharge which enters the marina; and to provide a sewage pump-out station at the marina which would prevent the discharge of sewage into the water. The issue of the water's copper level is addressed by the removal of the CCA-treated pilings and decking and their replacement with concrete and fiberglass; the treatment of the storm-water discharge before its discharge into the basin; and the hiring of a harbor master to ensure that the prohibition against hull scraping at the basin is complied with. A restriction on the number of boats allowed into the marina at any one time would also treat the copper problem by reducing the exposure to anti-fouling paint containing copper. This is a condition of the permit. It is important to note that under existing statutory and rule exemptions, SBH could repair or replace the existing dock structure without the need for a permit. However, the issuance of a permit which permits modification and a slight expansion of the facility will prohibit the replacement of the existing CCA-treated wood with CCA-treated wood. The concrete and fiberglass pilings and decking will not leach copper into the water and, in time, should result in a lower concentration of that substance in the water. Another consideration of the permitting authorities relates to the impact the project would have on public health, safety, and welfare. Petitioners expressed concern that an increase in the number of slips called for in the proposed project would cause an increase in the number of boats that utilize the basin. Currently, though there are a limited number of slips available, there is no limitation on the number of boats which may use the facility. A reasonable estimate of capacity, considering the configuration of the docks and slips and the permit limitations established, indicates that no more than thirty-two boats will be permitted to use the basin at any one time. If this limitation is followed, it is reasonable to expect an improvement in the water quality. Petitioners also express concern that an increase in the number of authorized boats using the marina will result in an increase in the number of boats traveling at excessive speeds in entering and exiting. No evidence was introduced in support of this theory, but, in any case, Respondents counter- hypothesize that the increase in allowed boats will result in an increase in long term lessors over transients, and suggest that long term users are more considerate than transients. Neither side presented any substantial evidence in support of its positions. The impact on the conservation of fish and wildlife is a mandated consideration by the agency. No evidence was presented by either side regarding the existence of fish and wildlife in the area, much less threatened species, other than manatees. To be sure, these noble creatures inhabit the marina at times in appreciable numbers. The threat to them, however, comes from boat strikes, and no evidence was presented as to the number of strikes caused by boats in the marina or its approaches or the seriousness of these strikes. The agency to which the review of impacts to manatees was left, the Florida Fish and Wildlife Conservation Commission (FWCC) opined that the permit cap of 32 boats would keep to a minimum the potential impact to manatees from this project. Any increase in the number of boats, and the minimal impact increase thereby, should, it was considered, be offset by compliance with permit conditions. This opinion was contradicted by Mr. Thompson, Petitioner's manatee expert, who argued against any increase of boat traffic in manatee areas. This position is not the policy of the Department and is not controlling here. Further, it would appear this expert did not consider any mitigation factors proposed by SBH, as the Department is required to do. Taken together, the weight of the evidence supports a finding that the expected impact of this project on fish and wildlife, including those threatened and endangered species, is minimal. Based on the evidence of record, it is found that the expected impact of this project on navigation, the flow of water, erosion, and shoaling in the vicinity is virtually non- existent. The only factor bearing on this issue is the number of boats which will use the facility and its approach. Permit conditions call for a limitation on the number of water craft which will use the facility to be permitted to a number lower than that which uses it, at times, under current conditions. The water is a dead-end harbor, with no through traffic. There is no evidence of either erosion or shoaling now. It would not likely increase. A reduction in traffic as would occur under the conditions imposed by the permit can do nothing but reduce the potential for propeller dredging by boat traffic and the water turbidity that would accompany such strikes. This would improve navigation slightly, and there should be no adverse impact to the flow of water. The evidence presented at hearing did not establish any negative impact on fishing or marine productivity in the vicinity of the proposed project, which is permanent in nature. By the same token, no adverse effect to significant historical or archaeological resources was shown by the evidence of record. The facility in issue is currently a commercial activity consisting of a docking facility and a restaurant. No evidence was introduced to show that the project proposed would have an adverse impact on the current condition and relative value of the current function. In fact, the evidence indicates that the facility would be improved. Though not raised by the evidence, it should be noted that Petitioners presented no evidence that their property values as adjacent property owners, would be adversely effected by this project. In balancing the criteria, cumulative impacts and secondary impacts of the proposed project on the immediate and surrounding area, it appears that the applicant has provided reasonable assurances that the project is not contrary to the public interest. The marina supports the hotel and restaurant which is on it. Adjoining property owners, the Petitioners, expressed concern that the modifications to the existing marina will result in a decrease in water quality in the basin; will increase the potential for fuel spills with their related short term discomforts and long term damages; and will increase the danger to the manatee population which periodically uses the basin. While they are entitled to the quiet enjoyment of their property, it is unreasonable for those who live on the water to expect that the benefits of living by the water would not carry with it the potential for some periodic discomfort created by waterfront activity. The weight of the evidence presented in this case indicates no significant cumulative adverse impacts from this project. To the contrary, the state of the evidence suggests an improvement in water quality and navigation in the basin and its approaches, and any secondary impacts resulting from the accomplishment of the project would be minimal.
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 issuing to Sarasota Bay Hotel the requested permit to modify and expand the existing marina facility located adjacent to the existing Hyatt Hotel at 1000 Boulevard of the Arts in Sarasota, Florida. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Barbara B. Levin, Esquire Scott A. Haas, Esquire Abel, Band, Russell, Collier, Pitchford & Gordon 240 South Pineapple Avenue Sarasota, Florida 34236 Graig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Hanson, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street Suite 403 Sarasota, Florida 34237 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, John H. Phipps Broadcasting Stations, Inc., owns approximately 10,600 acres of land bordering on Lake Jackson. The corporation owns roughly seventy percent of the waterfront property around Lake Jackson. The corporation's land is used for agriculture. Less than ten percent of the land is used in a minor grain operation involving the interspersion of cover via several small grain fields. Most of these grain fields are in self-contained basins creating no erosion or runoff problems. These fields are conducive to the propagation of wildlife, particularly quail and deer. The grain produced by these fields is used, at least in part, in the corporation's cattle operation. Approximately twenty-five percent of the corporation's land is used in a cattle breeding operation involving three to five hundred head of cattle. No feed lot operation is involved. The cattle are in pastures, the majority of which are bounded by the waters of Lake Jackson. The corporation fences to and into the water because of the fluctuating level of Lake Jackson and the necessity to contain their cattle. This practice has been ongoing for more than twenty-nine years. The corporation presently has no permits of an environmental nature in connection with the cattle operation. The testimony by Petitioner's witnesses is that the pasture cattle operation is very conducive to good water quality because it captures runoff and allows it to percolate. The remainder of the corporation's land is used in a timber operation which includes controlled burning to help contain erosion. Witnesses for Petitioner corporation testified that the water quality of Lake Jackson bordering the corporation's land is excellent. A high priority of the agricultural operation of the corporation is the maintenance of good water quality in Lake Jackson. Activities are not permitted on the corporation's land that degrade the water quality of the lake. Attempts are made to keep runoff from the lake. The evidence indicates that there are no discharges of water from the corporation's lands into Lake Jackson other than natural runoff. The testimony presented by Petitioner corporation at the final hearing was that the corporation intends to continue using the property as it is presently used and has no tentative plans for a different use of the property. Petitioner, Colin S. Phipps, owns approximately 1,000 acres bordering in part on Lake Jackson. He is also president of John H. Phipps Broadcasting Stations, Inc. Colin S. Phipps rents his acreage and shooting rights to an individual who farms the acreage. He testified that nothing was done on the property that presently requires permits from the Department of Environmental Regulation. John H. Phipps and John E. Phipps personally own parcels of land bordering on Lake Jackson. The three individual petitioners in this cause are officers of the corporate Petitioner. No evidence was presented to show activities on behalf of the petitioners on their property other than that set forth above. Further, it was the position of the petitioners that they did not foresee a change in the activities presently occurring on their property. It was their position that they had no tentative future plans for the property. They did indicate that they did not know what the future might bring. An experienced and qualified appraiser appeared on behalf of petitioners and testified that he had read the rules being challenged in this cause, was familiar with the subject property, and that in his opinion the vagueness of the proposed rules would dramatically and adversely affect the value of Petitioners' land. There are several problems with this opinion testimony. The witness did not testify that he had appraised the property. Rather, he testified that he was very familiar with the property. Thus, his testimony on the value of the land is speculation, albeit knowledgeable speculation, rather than the considered expert opinion of an appraiser. Further, the witness' opinion was based on his reading as a layman of the proposed rules and his speculation of their effect on the real estate market in which the subject lands might be offered for sale. The Hearing Officer found that the witness was a qualified appraiser with experience in appraising the economic impact of environmental regulations on waterfront property. Nevertheless, his interpretation of the proposed rules carries with it no aura of correctness for he is not, and, perhaps as all of us, cannot be, an expert in the interpretation of rules. The rules must speak for themselves and the witness can only speculate on the effect of different interpretations which might be given the rules. Therefore, the Hearing Officer concludes that the opinion of the witness is so speculative that his testimony is incompetent to support findings of fact as to the effect of the proposed regulations on the market value of Petitioners' real property.
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 24th day of October, 1983.
Findings Of Fact On August 12, 1982, the partnership made application for a fill permit to fill approximately .67 acres and to create approximately .45 acres of wetlands in St. Johns County, Florida. A copy of this permit application may be found as DER Exhibit No. 1 admitted into evidence. At the same time, the partnership requested permission from Department of Environmental Regulation to construct a roadway associated with the residential project mentioned in permit application Number 1. This road construction contemplated filling approximately .06 acres associated with a 20 foot roadway with swale drainage in an area the applicant identified as a transitional wetland. A copy of the second permit application may be found as DER Exhibit No. 2 admitted into evidence. Those permit applications were received by DER on August 18, 1982. The applications for permit were reviewed by the Northeast District Office, State of Florida, Department of Environmental Regulation. Tim Deuerling, a member of that district staff, was the individual primarily responsible for the permit review. His position with the staff is that of Environmental Specialist and his duties include dredge and fill permit review. In the course of the hearing, Deuerling was qualified as an expert in the evaluation of dredge and fill projects on the subject of water quality impacts associated with the activity. The permit applications have been considered separately based upon several on-site inspections made by Deuerling. Having concluded the inspections, Deuerling made a written permit application appraisal for each permit request. These activities took into account the biophysical features of the project area, with emphasis on the possible impact of the project related to ecology of the water body. DER Exhibit No. 17 admitted into evidence, is a copy of the appraisal report related to the dredge and fill activities in the wetlands of approximately .67 acres fill and the creation of .45 acres marsh. DER Exhibit No. 18 admitted into evidence, is a copy of the permit application appraisal by Deuerling related to the fill activities associated with the construction of the road. In summary, these appraisals recommended the denial of the permit applications, based upon the concern that the projects would damage the existing biological resources and have the effect of degradation of the local water quality. In the face of the Department's initial statement of intent to deny the permit, revisions were made to the permit applications. In particular, the revisions contemplated the filling of approximately 10,000 square feet of transitional zone vegetation, as defined in Rule 17-4.02(17), Florida Administrative Code, while creating approximately 56,000 square feet of marshland vegetated with low marsh submerged species. The newly created marsh area would be protected by a coquina rock revetment. The destruction of the transitional vegetation in the project is not a violation of Department of Environmental Regulation regulatory standards, per se. Moreover, the substituted submerged vegetation which is sought is of a higher quality in performing the function of enhancing water quality, when contrasted with the transitional-type vegetation. DER Exhibit No. 5 admitted into evidence is a diagram which points out the associated fill in the revised permit application, with the fill areas over which the Department of Environmental Regulation has jurisdiction being delineated in red. The green line depicts the demarcation of the landward extent of the Department's permitting jurisdiction. DER Exhibits 6, 7, and 8, copies of which have been admitted into evidence, are information and synopsis of meetings related to the revisions. In commenting on the topic of an on-site meeting, which was conducted on November 19, 1982, an official with the United States Corps of Engineers expressed concern that the mitigation plan for protecting the environment should require a minimum of one-to-one marsh creation for marsh destroyed. The project, as contemplated, allows for roughly five times the area to be created in contrast to area destroyed. A copy of the letter from the employee of the United States Army Corps of Engineers may be found as DER Exhibit No. 9 admitted into evidence. Comments from other regulatory agencies were received by the Department of Environmental Regulation. These comments were from the United States Environmental Protection Agency; State of Florida, Department of Natural Resources; United States Fish and Wildlife Service; and the Building and Zoning Department, St. Johns County, Florida. Copies of these comment letters were received as DER Exhibit Nos. 10, 11, 12, and 13 respectively. The concerns expressed by the United States Environmental Protection Agency and United States Fish and Wildlife Service have been addressed in the subsequent conditions set forth in the Notice of Intent to Issue Permits by Department of Environmental Regulation. That comment in DER Exhibit No. 13 made by officials with the Building and Zoning Department of St. Johns County on the subject of their reluctance to accept the fact that there is a trade off of wetlands for wetlands as opposed to the substitution of uplands for wetlands to-be filled, is satisfactorily addressed in the revised proposal. The uplands that are being graded will become a marsh area and will not remain uplands. Comments in opposition to the project were received from members of the public. Copies of these letters in opposition may be found as DER Exhibits Nos. 14, 15, and 16. Those items respectively are from John W. Morris, Esquire, DER Exhibit No. 14; Elouise Kora and Yolande Truett, DER Exhibit No. 15; and Rod and Jacqueline Landt, DER Exhibt No. 16. Having reviewed the original project, the revisions to the permit applications, and the comments by various private individuals and public agencies, the Department of Environmental Regulation noticed all interested parties of the Department's intent to issue permits for the benefit of the Partnership. Copies of those notices may be found as DER Exhibit Nos. 19 and 20 pertaining to the substituted marshland permit and road permit respectively. Those letters of intent establish the particular conditions that the Department would impose on the grant of the permit. In the instance of the substituted wetlands area, it would include turbidity controls during the placement of the fill, the stabilization of fill to prevent erosion into state waters, the placement of coquina rip-rap along open waters of the Tolomato River prior to the excavation of upland areas to the intertidal elevation that is referred to as one of the other conditions, the excavation of the project area to allow the growth of Spartina alterniflora to be planted on three foot centers, and the assurance that the new wetlands vegetation shall have a 70 percent survival rate following planting as measured at the conclusion of the first year or that replanting of that species shall occur until a 70 percent survival rate is achieved. DER Exhibit No. 20 related to the construction of the roadway sets forth conditions related to the fact that the road should be constructed at a time when the area is not inundated with water, turbidity control at the time of construction, and the stabilization of the road and swales to prevent erosion leading to the introduction of materials into the waters of the state. Each Notice of Intent to Grant also sets out opportunity for parties in opposition to request a hearing to consider the propriety of the grant of permit. At the time that the Notices of Intent were sent, permits were also drafted pertaining to the marsh area and roadway. Copies of those permits may be found as DER Exhibit Nos. 21 and 22 respectively. Those permits are considered to be proposed agency action, pending the outcome of the hearing conducted March 30, 1982, to address the question of the grant of permits. The permits contain the conditions above. A protest was received leading to the current hearing, following the Department's request for the assignment of a Hearing Officer and such assignment. In addition to the review of the project made by Deuerling, Jeremy Tyler, an employee in the Northeast Florida District, Department of Environmental Regulation, considered the original project and its revisions. Tyler was accepted as an expert in the assessment of impact of dredge and fill projects on water quality. In view of the revisions to the project, and keeping in mind that the work to be done pursuant to the revisions would be landward of the line of mean high water, Tyler correctly asserts that standards or criteria related to water quality in the State of Florida will not be violated by project activities, i.e., reasonable assurances have been given by the applicant. This pertains to standards established pursuant to Chapter 403, Florida Statutes, as carried forward in Chapter 17, Florida Administrative Code. Based upon the revisions, Deuerling correctly concurred in Tyler's impression that water quality standards or criteria would not be violated, i.e., that reasonable assurances had been given by the applicant. Deuerling was particularly impressed with the design of the revised project, the stormwater control methods to be implemented at the project site, and the decrease in the amount of filling to be done within areas of. the Department' s jurisdiction. The jurisdictional boundaries are determined by reference to transitional vegetation which is dominant, specifically, the first fifty feet of that area. Steve Beamon, marine biologist and consultant hired by the Partnership to plant the marine vegetation in the new marsh area, is convincing when he, by expertise, vouches for the reliability of the 70 percent survival rate for that vegetation. In fact, his experience has been that 97 percent of the vegetation planted survives. Here, the survival rate is premised upon the placement of the rip-rap coquina rock to protect that vegetation. The Department of Environmental Regulation, through Jeremy Tyler, concurs in the necessity for the placement of the revetment. The Partnership had applied for a permit for stormwater discharge. See DER Exhibit No. 3 admitted into evidence, a copy of that application. The Department, in responding to that application, a copy of which response may be found as DER Exhibit No. 4 admitted, declined jurisdiction in the face of a purported exemption available to the Partnership. This action, on the part of the agency, is premised upon its reading of Rule 17-25.03(2)(c), Florida Administrative Code. Petitioner did not present expert testimony to refute the evidence related to reasonable assurances of compliance with applicable standards of the Florida Statutes and associated rules within the Florida Administrative Code. Their concerns pertain to the removal of beach area that would occur in association with the project build-out, especially as it relates to the placement of the coquina rock, which would make the beach area available only at low tide. The witness, Elouise Kora, also established that sand which has been placed in anticipation of the possible permitting of the project has washed into the current marsh areas Other witnesses for Petitioner identified the effects of placement of fill in certain areas as covering food sources for fish and denying opportunity to fish from the shoreline. At present, flounder, drum, whiting, bluefish, and catfish are caught in the area of the project site. Swimming and wading are done in the area of the project site and would be inhibited if the project were granted. Harry Waldron, a member of the St. Johns County Commission, expressed concern that access to the beach area would be denied by the contemplated project. He also indicated that the placement of revetment material was not before the County Commission when it-considered the propriety of this project from the point of view of local government. In Waldron's opinion, although the public can get to beach areas in that basic location, other than the project site, the build-out would cause the loss of a "prime fishing hole", which is not in the public interest, according to Waldron.
The Issue Whether the Department should issue a dredge and fill permit to the Navy to construct an extension to an existing breakwater in the vicinity of Bayou Grande and Pensacola Bay?
Findings Of Fact The Parties. The Department is the agency responsible for the issuance of dredge and fill permits in the waters and wetlands of the State of Florida. The Navy is an applicant for the subject dredge and fill permit. The parties have standing to participate in this proceeding. The Application and its Review. On June 12, 1985, the Department received a dredge and fill application from the Navy requesting a permit for the construction of an 850-foot extension of a breakwater in the vicinity of Bayou Grande and Pensacola Bay. The application was received by the Northwest Florida district office of the Department The Navy filed its application on DER Form 17-1.203(1). In a letter dated January 20, 1986, to the Jacksonville District, Corps of Engineers, the Bream Fishermen Association (hereinafter referred to as the "BFA"), raised several issues they believed needed to be addressed concerning the proposed project: (1) The effect on safety; (2) the effect of the existing breakwater on submerged grasses; and (3) pollution in Bayou Grande. In a letter dated January 28, 1986, to the Northwest Florida district office of the Department the BFA again expressed their concerns about the proposed project. In response to the BFA's letter of January 28, 1986, the Department asked Dr. Kenneth Exchternacht, the Department's hydrographic engineer, to evaluate the proposed project. In a memorandum dated February 20, 1986, Dr. Exchternacht requested that the Navy provide the following additional information: Provide documentation and [sic] to the tidal flow direction and amplitude in Pensacola Bay south of the proposed work area and north of the mouth to Bayou Grande for both ebb and flood. Mean current speeds and trajectories as well as maximum midtide velocites are needed. Provide estimates of the net littoral drift direction and volume to the north of the mouth of Bayou Grande and to the south of the work area along Magazine Point. The Navy performed the additional hydrographic survey requested by the Department and submitted the information to the Department. The submission of the hydrographic survey requested by the Department completed the application for the extension of the breakwater. The application submitted by the Navy was a "short-form" application. It was properly filed with the Department's district office. The proposed project does not involve in excess of 10,000 cubic yards of material to be placed in the waters of the State. The completed application involved in this proceeding was not received prior to October 1, 1984. The application as submitted by the Navy complied with the requirements of the applicable Florida Statutes and the Department's rules. The Department completed its Permit Application Appraisal on May 14, 1986 and issued an Intent to Issue with regard to the Navy's proposed project on June 4, 1986. The Petitioners timely filed a petition for administrative hearing challenging the Department's proposed intent to issue the permit requested by the Navy. The Proposed Project. The Navy has proposed a permanent extension of an existing breakwater by 850 feet. The existing breakwater was constructed in 1966. No dredge and fill permit was required by the Department or any other agency when the existing breakwater was constructed. A channel exists at the site of the existing breakwater. It runs parallel to the breakwater on its southward side. The channel has been in place since the mid-1940's. The proposed extension of the breakwater will consist of approximately 7,650 cubic yards of concrete rubble. It will cover an area of 1.12 acres. It is properly and adequately designed. As originally filed, the Navy's application reflected that the location of the breakwater was 30 degrees 21'23" Latitude and 87 degrees 15'33" Longitude. This is not the correct location of the breakwater. The correct coordinates of the breakwater and the proposed extension are 30 degrees 22'25" N Latitude and 87 degrees 15'45" W Longitude. The correct location of the project was discernable from other information in the application The breakwater is located at the entrance from Pensacola Bay to Bayou Grande at a promontory of land known as "Magazine Point". The existing channel and breakwater and the proposed extension run east and west with Pensacola Bay on the east and Bayou Grande on the west. Water Quality Standards. Bayou Grande and Pensacola Bay are Class III waters. The project will not degrade the existing water quality in Bayou Grande or Pensacola Bay or in any way increase the introduction of pollutants into Bayou Grande. Tidal waters exit Bayou Grande during ebb tide flow. They also exit Bayou Chico to the north at approximately the same time. The project will, therefore, not have a significant funneling effect allowing an increase of polluted water from Bayou Chico or any other area into Bayou Grande. The proposed project will serve to stabilize the volume exchange of water between Bayou Grande and Pensacola Bay. The size of the existing breakwater and the proposed extension will have no measurable effect on the circulation of waters in Pensacola Bay. The circulation of Pensacola Bay is controlled primarily by tide flow and secondarily by the wind. The tidal cycle of Pensacola Bay is 24.8 hours. The ebb tide, combined with the Coriolis effect, causes the water flow to hug the left or northwest bank of Pensacola Bay as it ebbs sought toward the Gulf of Mexico. The hydrographic study information provided by the Navy to the Department was sufficient to indicate that the general circulation of Pensacola Bay will not be significantly affected by the project. A hydrographic study of a bay could include numerous sampling stations collecting data over a significant period of time. Such an extensive study is not necessary or available in this proceeding. An adequate hydrographic study was submitted by the Navy to the Department. The study was conducted as requested by the Department. Based upon the hydrographic study performed by the Navy and other available information, the proposed project will not adversely affect circulation patterns in Bayou Grande or Pensacola Bay to an extent necessary to require a more comprehensive study. Any degradation in the water quality of Bayou Grande is and has been due to runoff from developed areas around the shoreline of the bayou. It is not clear what types of seagrasses have existed in Bayou Grande historically or are in existence today. Seagrasses that have existed or do exist in Bayou Grande include thallassia testidinium (turtle grass), halodule wrighti (cuban shoalweed) and ruppia maritima (widgeon grass). Turtle grass and cuban shoalweed thrive in water with a high salinity concentration. Widgeon grass prefers a lower salinity concentration. Historically, seagrasses have increased and decreased in coverage in Bayou Grande. The cause or causes of the fluctuations in the coverage of seagrasses in Bayou Grande is unknown. The evidence failed to prove that the existing breakwater has had, or that the proposed project will have, any effect on seagrasses in Bayou Grande. No studies have been conducted in the proposed project area which identify seagrasses, the extent of their growth, the effect of salinity on existing seagrasses or any causal connection between the existing breakwater or its proposed extension and the decline or increase of seagrasses. Based upon all of the evidence the proposed project should not adversely effect the salinity concentration in Bayou Grande or any seagrasses in the vicinity. With the development around Bayou Grande, if the channel were allowed to close, it is likely that the water of Bayou Grande would become extremely poor. The Public Interest. The area to be filled is shallow, bare, sandy bay bottom. There are no sea grasses in the area that will be covered by fill. The existing biological community of the area to be filled is of relatively low diversity. Only a very small number of organisms may be buried during construction of the breakwater extension. The area of the project is a high wave action area. The biological community of the immediate area of the breakwater extension is a wave stressed community. The area is not a coral reef or shellfish producing area. There are no identified endangered species located in the area of the project or Bayou Grande. The burial of any organisms will be offset by the colonization of algae and other fouling community organisms. Algae is important to the food chain by providing food to higher level organisms. The expected fouling community will be more productive and diverse than the existing sandy bottom community. Bayou Grande is an estuary and serves as a nursery for a wide variety of marine life and aquatic birds. In the distant past, marine life in Bayou Grande thrived. In the past 40 to 50 years there has been a decline in marine life in Bayou Grande. During the past 4 to 5 years Bayou Grande has improved as a nursery estuary. The evidence failed to prove that the breakwater directly affected the nursery function of Bayou Grande. The nursery function of Bayou Grande will not be adversely affected by the proposed project. The extension of the breakwater will not cause a safety hazard. The project will have a positive effect on navigation by contributing to keeping the channel open for use by boats. The water at the end of the existing breakwater is 1.7 feet deep. The depth of the water will increase to 5.9 feet at 800 feet of the proposed extension and to 10 feet at the end of the 850 feet of the proposed extension. An experienced boat operator should have little difficulty in avoiding the breakwater. The channel entrance is marked with a day marker and there is a light in the middle of the breakwater. Extension of the breakwater will help prevent boats from running aground on the shallow sandy bottom. The extension will also provide protection for small vessels seeking protection from storms. The extension will provide a windbreak from southern winds and enable vessels to more easily reach the shelter of Bayou Grande. On the night of October 19, 1986, a speedboat ran into the existing breakwater. According to a passenger on the boat, the light of the breakwater was not visible. The proposed project will not cause any harmful erosion or shoaling. The project will prevent shoaling by acting as a permeable barrier to natural sand transport. This will in turn help to keep the channel open and minimize dredging operations. The channel has been subject to repeated dredgings to maintain the channel. The last dredging took place in 1982. Bayou Grande is used for recreational purposes, including fishing and boating. The proposed project will not adversely affect the fishing and boating activities in Bayou Grande. The proposed project will not adversely affect any significant historical or archaeological resources. The Navy has been granted a permit as of January 3, 1986, to expand is marina facilities in an area adjacent to Bayou Grande. Access to the marina from Pensacola Bay is through the channel at Magazine Point. The proposed project will not adversely affect water quality standards or the public interest, even considering the permit granted to the Navy for the expansion of its marina facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue to the Navy the dredge and fill permit applied for by the Navy pursuant to application number 17 1054501. DONE and ENTERED this 19th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 86-2880 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 This proposed "finding of fact" is a conclusion of law. 2 1. 3-4 These proposed "findings of fact" are conclusions of law. 5 3. The first sentence is accepted in paragraphs 5 and 11. The second sentence is a conclusion of law. The rest of the proposed finding of fact is irrelevant. Irrelevant or not supported by the weight of the evidence. 8 20. 9 42. 17, 42 and 51. The existing breakwater was established in 1966 and not 1969. Not supported by the weight of the evidence. The exhibits referred to were not accepted into evidence. See paragraphs 32-34. Irrelevant. Although this proposed finding of fact is true, the evidence failed to prove the cause of the decline in productivity in Bayou Grande. Irrelevant. 14-18 Not supported by the weight of the evidence. The Navy's Proposed Finding of Fact 1 4 and 21. 2-3 20. 4 8 and 9. 5 17 and 19. 6 17. 7 46. 8 23. 9-10 Hereby accepted. 11 22. 12 18. 13 51. 14 55. 15 19. 16-19 Cumulative. 20 Irrelevant. 21 49. 22 52. 23-24 42. 25 51. 26 Irrelevant. 27 33. 28-29 37-39. 30 40. 31 33. 32 14. 33 56. 34 6 and 7. The date of the letter was January 28, 1986. 35 8. 36 9. 37 10. 38 53. 39 44 and 45. 40 Cumulative. 41-42 47. 43 12. This proposed "finding of fact" is a conclusion of law. Summary of testimony. Irrelevant. Hereby accepted. Cumulative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 51 38. 52 44. 53 27. 54 28. 55 36. 56 25. 57 Hereby accepted. 58 35. 59 29. 60 29. Not supported by the weight of the evidence. Cumulative. Hereby accepted. Irrelevant. Cumulative or irrelevant. Cumulative. 67 48. Cumulative or irrelevant. Hereby accepted. Irrelevant. 71-72 Cumulative. The Department's Proposed Findings of Fact 1 4 and 19. 2 17. 3 23. 4 37. 5 38. 6 39. 7 41. 8 42 and 43. 9 33. 10-11 32. 12 30. 13 Irrelevant. 14 56. 15 50. 16 45. 17 44, 48 and 49. 18 34. 19 35. 20 25. 21 26 22 24 and 31. 23 27. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary M. Callaway, Esquire Post Office Box 3697 Pensacola, Florida 32516 Robert Boasberg, Jr. Commander, JAGC, U.S. Navy Staff Judge Advocate Naval Air Station Pensacola, Florida 32508-5000 Karen Brodeen, Esquire Douglas Wyckoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility. This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny. The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County. There are basically four types of treatment being provided in the proposed stormwater management system: Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin; The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand; Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and One and one-half inches of runoff from 4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes. Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall. In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5), F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above. DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida. MICHAEL M. PARRISH, 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 24th day of November 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445 The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner and Respondent Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted. Paragraph 4: Accepted. Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.) Paragraphs 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted. Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance. Findings proposed by Intervenor Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted. Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.) Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance. Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence. Paragraph 9: Rejected as irrelevant. Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details. Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence. Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details. Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity. COPIES FURNISHED: Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
