The Issue The central issue in this case is whether the application for a surface water management permit (permit no. 4-009-0077AM) filed by the Respondent, David A. Smith (Applicant), should be approved.
Findings Of Fact Based upon the prehearing stipulations of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Applicant is the owner of the subject property. The Applicant filed an application for a permit to construct a stormwater management system which was proposed to serve a residential and golf course development to be known as Sabal Hammocks. The site of the proposed project is approximately 720 acres in size and is located in township 24 south, sections 28, 29, 30, 32, 33, and 34, range 35 east, Brevard County, Florida. The entire project site for the Sabal Hammocks development is located within the boundaries of the St. Johns River Water Management District. To the west of the project site is an 140 acre public park that treats its own stormwater and releases pre-treated stormwater during some storm events into the canals on the Sabal Hammocks site. The Applicant's site is located adjacent to Lake Poinsett and prior uses of the land have included cattle grazing and the cultivation of rye and oats. The Applicant filed his application for the stormwater management permit (permit NO. 4-009-0077AM) on December 22, 1989. That application was deemed complete by the District on June 19, 1990. The District issued a notice of its intended action to approve the permit application on June 28, 1990. Save timely filed a petition challenging the proposed action. By law the District is the appropriate agency charged with the responsibility of reviewing applications for stormwater management permits within the subject area. Save is an association of individual persons and representatives from groups who utilize the waters of Lake Poinsett and its surrounding areas for recreational and business purposes. The receiving waters for stormwater discharge from the proposed Sabal Hammocks development will be Lake Poinsett. That water body is classified as Class III waters. Currently, a dike system exists along the southern boundary of the subject property. That dike system separates the internal grazing lands of the parcel from the lower marsh and flooded areas external to the dike. A series of ditches cross the parcel to drain the interior areas. Two agricultural discharge pumps are currently in use at the site. The operation of those pumps has been authorized pursuant to a consent order approved by the District's governing board on December 13, 1990. The dike system on the subject site has been in place since the 1970s. The original construction specifications of the dike are unknown. Sometime in the 1980s, several openings or breaches were cut in the dike system. Those breaches were opened pursuant to permits issued by the District and the Department of Environmental Regulation (DER) . The breaches were cut to a sufficient width and depth to allow boats to navigate through to interior areas of the subject property during those times when the water levels outside the dike would allow such entrance. The breaches were not cut to ground level and the original dike remained intact and uncompromised by the breaches. That is, the dike has not failed to impede water movement and the integrity of the dike was not weakened by the breaches. The original outline, dimension of the dike, remained visible despite the breaches. In 1986, the Applicant requested permission from the District staff in order to close or restore the dike breaches. At that time, the District staff advised David Smith that a permit would not be required to restore the dike since such improvements would be considered a maintenance exemption. Subsequently, and in reliance upon the representations made by the District's director,, the Applicant closed the breaches and restored the continuity of the dike system of the subject property. The Applicant's work to close the breaches was performed in an open manner, would have been visible to persons using the adjacent marsh or water areas for recreational purposes, and was completed at least one year prior to the application being filed in this case. Neither the District nor DER has asserted that the work to complete the original dike in the 1970s, nor the breaches completed in the 1980s, nor the restoration of the breaches in 1986 was performed in violation of law. Further, the District had knowledge of the subject activities. Save contends that the restoration of the dike system was contrary to law and that it was not afforded a point of entry to contest the closure of the breaches. Additionally, Save infers that the original construction of the dike system in the early 1970s was without authorization from authorities. Save's contention is that the prior condition of the property, ie. the parcel with breached openings, must be considered the correct pre- development condition of the land. The District, however, considered the pre- development condition of the parcel to be that of a diked impoundment separated from Lake Poinsett. The same assumption was made regarding the pumping of water from the area enclosed by the dike via an existing 36 inch pump which discharges to Bass Lake (and then to Lake Poinsett) and an existing 12 inch pump that discharges into the marsh areas adjacent to the property (between it and Lake Poinsett). The District's consideration of the site and the application at issue was based upon the actual condition of the land as it existed at the time this application was filed. The pre-development peak rate and volume of discharge from the site was calculated based upon the maximum discharge capacity of the two existing pumps (described above). Accordingly, the maximum pre-development rate of discharge from the two existing pumps is in the range of 90-107 cubic feet per second. The pre-development volume of discharge, based upon actual pump records, was calculated as 710 acre-feet for a 25 year, 96 hour storm event. The total areas encompassed by the Applicant's proposal are the 720 acre site where the golf course and residential homes will be located together with 140 acres from an adjacent public park. The runoff entering the stormwater system from that public park will have already been treated in its own stormwater management system. The Applicant's proposed stormwater system will consist of a series of lakes and interconnected swales. This wet detention system will capture the runoff and direct its flow through the series of swales and lakes via culverts. The waters will move laterally from the northwestern portion of the parcel to she southeastern end of the site. From the final collecting pond, she waters will be pumped to Bass Lake and ultimately flow to Lake Poinsett. Wet detention systems generally provide greater pollutant treatment efficiencies than other types of stormwater treatment systems. The maintenance associated with these systems is also considered less intensive than other types of treatment systems. The wet detention system proposed for Sabal Hammocks accomplishes three objectives related to the flow of stormwater. The first objective, the collection of the. stormwater, requires the creation of several lakes or pools into which water is directed and accumulates. The size and dimension of the lakes will allow the volume of accumulated water to be sufficient to allow stormwater treatment. The capacity of the lakes will also provide for a sufficient volume to give adequate flood protection during rainfall events and storms. The second objective, the treatment of the stormwater, requires the creation of a littoral zone within the system. The littoral zone, an area of rooted aquatic plants within the lakes or ponds, provide for the natural removal of nutrients flowing into the system. The plants serve as a filtering system whereby some nutrients are processed. The proposed littoral zone in this project constitutes approximately 37 percent of the detention system surface area and therefore exceeds District size requirements. The depth of the treatment volume for the proposed system will not exceed 18 inches. A third objective accomplished by the creation of the series of lakes is the provision for an area where pollutants flowing into the detention system may settle and through sedimentation be removed from the water moving through the system. The average residence time estimated for runoff entering the Sabal Hammocks detention system is 48 days. The permanent pool volume will, therefore, be sufficient to assure the proposed project exceeds the District's requirements related to residence time. The design and volume of the Sabal Hammocks system will also exceed the District's requirements related to the dynamic pool volumes. In this case the Sabal Hammocks system will provide for approximately 65 acre-feet of runoff. Thus, the proposed system will adequately control and detain the first 1 inch of runoff from the site. The length to width ratio for the proposed lakes, 18:1, exceeds the District's minimum criteria (2:1). The final lake or pond into which the stormwater will flow will be 17 acres and will have 15 acres of planted wetland vegetation. Before waters will be released into Bass Lake, the site's runoff will pass through 3100 linear feet of this final lake before being discharged. The proposed project will eliminate the two agricultural pumps and replace them with one pump station. That station will contain four pumps with a total pumping capacity of 96 cubic feet per second. Under anticipated peak times, the rate of discharge from the proposed single station is estimated to be less than the calculated peak pre-development rate of discharge (90-107 c.f.s.). The estimated peak volume of discharge will also be lower than the pre-development discharge volumes for the comparable storm events. The proposed pump station is designed to be operated on electrical power but will have a backup diesel generator to serve in the event of the interruption of electrical service. Additionally, the pumps within the station will be controlled by a switching device that will activate the pump(s) only at designated times. It is unlikely that all four pumps will activate during normal rainfall events. The Applicant intends to relinquish maintenance responsibilities for the stormwater system including the pump station to Brevard County, Florida. Finished floor elevations for all residential structures to be built within the Sabal Hammocks development will be at a minimum of 18.2 mean sea level. This level is above that for a 100 year flood. The floor elevations will be at least one foot above the 100 year flood elevation even in the event of the dike or pump failure or both. Finished road elevations for the project will be set at 17.5 feet mean sea level. This elevation meets or exceeds the County's requirements regarding the construction of roadways. It is estimated that the Sabal Hammocks system will retain at least 26 percent of all storm events on site. If the lake system is utilized to irrigate the golf course the proposed system could retain 45 percent of all storm events on site. Of the 31.27 acres of wetlands within the proposed site, only 4.73 acres of wetlands will be disturbed by the construction of this project. Some of the wetlands are isolated and presently provide minimal benefits to off-site aquatic and wetland dependent species. No threatened or endangered species are currently utilizing the isolated wetlands. The areas of wetlands which are productive and which will be disturbed by the development will be replaced by new wetlands to be created adjacent to their current location at a lower elevation. The new wetlands should provide improved wetland function since those areas will be planted with a greater diversity of wetland plant species. Additionally, other wetland areas will be enhanced by the removal of invader species and increased hydroperiod in the area. The integrated pesticide management plan for the proposed project will be sufficient with the additional condition chat use of Orthene, Subdue, and Tersan LSR will be authorized when approved insecticides or fungicides have not been effective. In this case, the estimates regarding the water quality for the proposed project were based upon data from studies of multifamily residential projects. Data from single family/ golf course developments was not available. Therefore, based upon the data used, the projected runoff concentrations for this project should over estimate pollutants and are more challenging to the treatment system than what is reasonably expected to occur. In this regard, the overall treatment efficiencies are estimated to be good for all of the parameters of concern with the exception of nitrogen. The projected increase in nitrogen, however, will not adversely impact the receiving water body. The projected average concentration for each constituent which may be discharged is less than the state standard with the exceptions of cadmium and zinc. In this regard, the District's proposed conditions (set forth in the District's exhibits 4 and 9) adequately offset the potential for a violation of state water quality standards. More specifically, the use of copper-based algaecides in the stormwater management system should be prohibited; the use of galvanized metal culverts in the stormwater management system, or as driveway culverts, should be prohibited; and the use of organic fertilizers or soil amendments derived from municipal sludge on the golf course should be prohibited. Additionally, a water quality monitoring plan should be implemented by the Applicant. The monitoring plan mandates the collection of water samples from areas in order to adequately monitor the overall effectiveness of the treatment facility. The source of cadmium is not be expected to be as great as projected since the most common source for such discharge is automobiles. It is unlikely that the golf course use will generate the volume of discharge associated with automobile use that the multifamily data presumed. The projected quality of the discharges from this project should be similar to the ambient water quality in Lake Poinsett. In fact, the post- development pollutant loading rates should be better than the pre-development pollutant loading rates. The discharge from the proposed Sabal Hammocks project will not cause or contribute to a violation of state water quality standards in Lake Poinsett nor will the groundwater discharges violate applicable state groundwater quality standards. The floodways and floodplains, and the levels of flood flows or velocities of adjacent water courses will not be altered by the proposed project so as to adversely impact the off- site storage and conveyance capabilities of the water resource. The proposed project will not result in the flow of adjacent water courses to be decreased to cause adverse impacts. The proposed project will not cause hydrologically-related environmental functions to be adversely impacted The proposed project will not endanger life, health, or property. The proposed project will not adversely affect natural resources, fish and wildlife. The proposed project is consistent with the overall objectives of the District.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the governing board of the St. Johns River Water Management District enter a final order approving the application for permit number 4-009-0077AM with the conditions outlined within the District's exhibits numbered 4, 8, and 9 and as previously stated in the notice of intent. DONE and ENTERED this 2 day of July, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2 day of July, 1991. APPENDIX TO CASE NO. 90-5247 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant. Paragraphs 5 and 6 are accepted. The first sentence of paragraph 7 is accepted the remainder is rejected as irrelevant. Paragraph 8 is accepted. Paragraphs 9 through 11 are accepted. Paragraph 12 is rejected as irrelevant. 8 Paragraphs 13 through 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 25 are accepted. The last two sentences of paragraph 26 are accepted, the remainder is rejected as irrelevant. Paragraph 27 is accepted. Paragraph 28 is rejected as comment, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraph 29 is accepted. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as argumentative. Paragraphs 32 and 33 are accepted. With regard to paragraph 34 it is accepted that compensating storage was not required. Otherwise, unnecessary, irrelevant, or comment. With regard to paragraph 35, it is accepted the proposed system meets the first 1 inch of runoff requirement otherwise, unnecessary or irrelevant or comment. Paragraph 36 is accepted. Paragraphs 37 through 41 are rejected as irrelevant, argumentative or comment. Paragraphs 42 and 43 are accepted. With the deletion of the last sentence which is irrelevant, paragraph 44 is accepted. Paragraphs 44 through 49 are accepted. The second sentence of paragraph 50 is accepted, the remainder of the paragraph is rejected as irrelevant or contrary to the weight of the evidence. The first sentence of paragraph 51 is accepted, the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 52 through 56 are rejected as irrelevant, comment, or recitation of testimony. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraphs 59 and 60 are rejected as irrelevant, comment, or argumentative. Paragraphs 61 and 62 are accepted. The first sentence of Paragraph 63 is accepted. The remainder of the Paragraph is rejected as contrary to the weight of the evidence. The proposed project will benefit the wetland areas in an unquanitifiable measure due to the enhancements to prior wetlands and the creation of new wetlands. The first sentence of paragraph 64 is accepted. The remainder is rejected as contrary to the weight of the evidence. Paragraph 65 is accepted. Paragraph 66 is rejected as argument or irrelevant. Paragraph 67 is accepted. Paragraphs 68 and 69 are accepted. Paragraph 70 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 71 through 73 are accepted. Paragraph 74 is rejected as irrelevant or unnecessary. Paragraphs 75 through 78 are rejected as argument, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraphs 79 through 82 are accepted. Paragraph 83 is rejected as irrelevant. Paragraphs 84 and 85 are rejected as argument or comment. It is accepted that the Corp and DER are aware of the restoration of the dike and that neither has asserted such work was performed contrary to law. Paragraph 86 is rejected as comment on the evidence or irrelevant. It is accepted that the District advised Applicant that he could restore the dike system and that the District was apprised of the completion of that work. With regard to paragraph 87, it is accepted that the restoration of the dike entailed filling the breaches to conform to the dike's original design; otherwise, rejected as irrelevant. Paragraphs 88 and 89 and the first sentence of Paragraph 90 are accepted. The remainder of paragraph 90 and Paragraphs 91 through 93 are rejected as irrelevant, argument, or comment. Paragraph 94 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 78 is accepted. Paragraph 79 is rejected as argumentative. Paragraph 80 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SAVE: None submitted. COPIES FURNISHED: Mary D. Hansen 1600 S. Clyde Morris Boulevard Suite 300 Daytona Beach, Florida 32119 Brain D.E. Canter HABEN, CULPEPPER, DUNBAR & FRENCH, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Wayne Flowers Jennifer Burdick St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178
The Issue The issue to be determined is whether the applicants, William Guererro and Christina Bang, a/k/a Christina Guerrero (Applicants), are entitled to issuance of a Consolidated Environmental Resource Permit and State Lands Approvals for various structures on the Applicants’ property at 58458 Overseas Highway, Marathon, Florida.
Findings Of Fact The Parties Petitioners Bernard Spinrad and Marian Spinrad are the owners of adjoining parcels of property with the addresses of 58418 and 58420 Overseas Highway, Marathon, Florida. They acquired the property in December 2001. They recently completed construction of two residential structures on the properties. The structure at 58418 Overseas Highway is currently listed for sale. The structure at 58420 Overseas Highway is a vacation rental property. Neither structure is Petitioners’ permanent residence. The DEP is the state agency with the power and duty to regulate activities in waters of the state pursuant to chapter 373, Florida Statutes. The DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on activities on state sovereignty submerged lands under chapter 253. The Applicants, are the owners of adjoining parcels of property with the address of 58478 Overseas Highway, Marathon, Florida (the Property). They purchased the Property in June 2010. The structures that are the subject of the Permit are to be constructed near or waterward of the shoreline of the Property. The Property The Property is located on Grassy Key, an island in the middle Florida Keys, within limits of the city of Marathon, Monroe County, Florida. U.S. Highway 1 passes through Grassy Key. The Property -- as is that of Petitioners -- is situated between U.S. Highway 1 and the open waters of the Atlantic Ocean. In the early part of the 20th century, a portion of Grassy Key was platted as the Crains Subdivision. The properties owned by Applicants and Petitioners are within the Crains Subdivision. During the periods of time directly relevant hereto, the Property has been owned by Burgess Levine, who owned the property during the period prior to the October 2006, landfall of Hurricane Wilma until June 2010, and by Applicants, who have owned the Property since June, 2010. Grassy Key Grassy Key is three-miles long, and has 6800 feet of beaches, none of which are designated as critically eroded. The island fronts the Atlantic Ocean to the east, and the more protected waters of Florida Bay to the west. The waters along the Atlantic Ocean shoreline of Grassy Key in the area at issue are shallow, with an extremely flat bottom having a very gradual slope of approximately 1 to 30, meaning there is a one foot vertical change over 30 horizontal feet. The mean tide range at the Property is about 1.7 feet. Under normal conditions, the stretch of Grassy Key at issue is fairly characterized as a zero-wave energy shoreline. Waves break well offshore and there is negligible wave energy propagating beyond that point. What shoreline energy exists is produced by small tide currents and wind-shear on the water surface that moves water along the shoreline. The direction of the water movement is dependent on tides and wind direction, with the predominant direction being from north to south. Erosive and other significant changes to the shoreline of Grassy Key, including that stretch fronting the Property, are event driven, meaning when there is a coastal storm that causes a rise in the water level, substantially higher than the astronomical tide, waves can propagate onto the shoreline of Grassy Key. The wind and waves can come from virtually any direction depending on the storm. A storm of greater intensity will create higher energy-wave conditions. Although storm conditions may only occur over 1 to 3 percent of a given year, with the rest of the year having zero-wave energy, on average the coastline may be considered to be of moderate-wave energy. The beach sediment along the Grassy Key shoreline in all areas pertinent hereto consists of calcareous material, made up of the breakdown of corals and coralling algae, with a significant fraction of other detrital marine material. The upper beaches of Grassy Key, including that on the Property, generally consist of coarse, calcareous sand with a small fraction of calcareous silt-size particles. The inter-tidal areas along Grassy Key consist of predominantly fine calcareous sand, with a greater fraction of calcareous silt. Extending out into the nearshore area all along Grassy Key, including that fronting the properties owned by Petitioners and Applicants, the sediment becomes a very fine calcareous sand, with a greater fraction of the material being calcareous silts and clays, and with a substantial amount of organic mud of a marine origin, classified as Islamorada muck. Since at least the 1970s, one wading in the nearshore waters along Grassy Key could expect to sink into the surface muck to a depth of anywhere from six inches to two feet. The depth of muck becomes less as one moves further out and approaches the offshore Thalassia beds. Although some areas offer more resistance than others, it is routine to experience difficulty in walking and wading along the coast of Grassy Key because of the high percentage of clays and silts in the substrate. The band of muck narrows as one proceeds towards the northern stretches of Grassy Key, until one reaches the furthest areas to the northeast where the nearshore transitions to exposed rock and hard bottom. The surface muck that exists in the nearshore waters of Grassy Key, having a sizable component of decaying organic material, gives off an odor of hydrogen sulfide when disturbed that some find to be unpleasant. The odor is a naturally- occurring condition of the sediment, and is common in mucky areas all around the southern coasts of Florida. The suggestion that the shoreline in the vicinity of the Petitioners’ property, and that of Applicants, was a naturally occurring white, sandy beach is contrary to the greater weight of the evidence. To the extent the shoreline at Petitioners’ property may have been temporarily altered by the overwash from Hurricane Wilma as discussed herein, Petitioners’ own post-Wilma man-made efforts at beach stabilization, or the redistribution of sediments occasioned by Hurricanes Isaac and Sandy in 2012, the evidence demonstrates the “mucky” condition described herein to be more consistent with the natural and long-standing conditions of Grassy Key. Thus, as Grassy Key exists in the present time, one may expect to encounter six inches to two feet of loose muck anywhere along the nearshore area. Close to shore of Grassy Key are scattered beds of Halodule, a species of seagrass that tends to emerge and grow in shallow waters. The growth of Halodule is influenced by the nature of the sediments, the salinity temperature, and clarity of the water. Storm events have a significant effect on its growth. Given its transient nature, Halodule may vary in any given area from nonexistent, to spotty, to well-established beds. As one moves further offshore, the Halodule transitions to large, continuous beds of Thalassia. Thalassia grows in deeper water, and is common to a depth of about 12 feet. Being deeper and less affected by storm energy, the line of the Thalassia beds off of Grassy Key has not substantially changed over time. As wind and waves come across the grass beds, and as tides ebb and flow, grass blades are cropped. The amount of grass varies seasonally to a degree. The cropped and dislodged seagrasses, along with other organic material entrained therein, are naturally carried by the tides and wind and stranded along the shoreline. The stranded material is known as wrack, and the line of stranded material is known as the wrack line. Grassy Key is well known for the large seagrass wracks that pile up on the shoreline. A wrack line is a normal and natural occurrence in marine environments like that of Grassy Key, and can be a good indicator of the upper edge of the water action at a particular time. The cropping and dislodging of seagrass is accentuated during major or minor storm events. During Hurricane Rita in 2005, a very large seagrass wrack was blown onto the shoreline of Grassy Key. It was subsequently blown back out to sea by the overwash from Hurricane Wilma. The decomposition of the seagrass and other organic materials creates a significant odor that is not uncommon. That odor of decomposing material is well-recognized as being associated with Grassy Key. Areas along the shoreline of Grassy Key have been used by sea turtles for nesting. However, the nature of the substrate in the area of the Property is not optimal for nesting. Generally, sea turtles require a nesting site with 15 to 20 inches of sand above the water table so as to allow them to dig a suitably deep and dry cavity for their eggs. The natural substrate along the section of Grassy Key at issue is coarser and more difficult to dig into, and does not have the depth of sand for the best chance of a successful nest. Despite the nature of the substrate, Petitioner testified as to her observation of turtle nests along her property in each year from 2006 through 2010. Since the SW Groin, the Mid-bulkhead, and the NE Groin were all in existence and functioning during that period, with work to the SW Groin having been completed by 2008, the preponderance of the evidence demonstrates that those structures have no effect on the success or failure of sea turtles to nest along the property. To the extent nesting has been disrupted since 2011, the most logical inference that can be drawn from the evidence is that such disruption is the result of the Mid-Jetty Extension, which is slated for removal under the terms of the Permit. The preponderance of the evidence demonstrates that the structures and activities authorized by the Permit will have no adverse effect on sea turtles. Hurricane Wilma In October, 2005, Grassy Key was pounded by Hurricane Wilma. The storm passed to the north, and created a substantial storm surge that moved from west to east across Grassy Key. The storm surge created a “ridge and runnel” effect on the Atlantic facing shoreline, with the channelization of the storm tide flow creating erosion and gullies on upland shore-adjacent properties. The storm surge and flooding across Grassy Key caused substantial wash-outs of sand; transported a large volume of sandy, upland sediments into the nearshore waters of the Atlantic Ocean; and created washover “fans” of material along the shoreline of Grassy Key. The effects of the Hurricane Wilma storm surge manifested just north of the Property, became substantial at the Property, and continued south down the shoreline for a considerable distance. At the Property, sand was pushed from 50 to 100 feet waterward from the existing shoreline, and a substantial runout was created running parallel and north of the SW Jetty. The sand pushed into the water buried everything in its path, including seagrasses. In short, the post-Wilma shoreline from the Property south along Grassy Key was left in a completely disrupted state. The nearshore waters fronting the properties owned by Petitioners and Applicants were affected by the deposition of sandy, upland sediments, which temporarily created areas of substantially harder-packed sediment. Over time, as the shoreline equilibrated and the sandy sediment distributed through a broader area, more typical shoreline conditions returned. The photographic evidence demonstrates that the Mid- bulkhead and the SW jetty structures were impacted by the Hurricane Wilma storm surge. In addition, the sandy area between the mid-bulkhead and the SW jetty was pushed seaward from its previous location. The scars from Hurricane Wilma remain evident through the most recent aerial photographs received in evidence. It is visually apparent that seagrass, though reappearing in patches, has not reestablished in the nearshore areas along the affected shoreline of Grassy Key -- including the areas in front of the Property and the property owned by Petitioners -- to the extent that it existed prior to the storm. Post-Wilma Activities When Hurricane Wilma hit, the Property was owned by Burgess Lea Levine. Not long after Hurricane Wilma, Ms. Levine shored up the SW Jetty, and performed work in the “beach” area between the mid-bulkhead and the SW jetty. The photographic evidence also supports a finding that the rock outline of the Mid-jetty was reestablished to its pre-Wilma configuration. The repairs to the SW Jetty resulted in a structure that is virtually indistinguishable in size and shape to the SW Jetty as it presently exists. The wrack line at the beach area after it was “worked” following the passage of Wilma, shows the area in which work was done to be generally consistent with -- though slightly seaward of -- the 2005 post-Wilma shoreline. In 2008, Ms. Levine applied for a series of exemptions and for consent of use for state-owned lands for “shoreline repair, replace earthen ramp with a concrete ramp, repair wood deck, replace mooring piles & maintenance dredge existing channel w/in Atlantic Ocean.” On September 19, 2008, the DEP issued a regulatory authorization and proprietary submerged land approval. The Rights of Affected Parties that accompanied the September 19, 2008, notice provided that “[t]his letter acknowledges that the proposed activity is exempt from ERP permitting requirements” and that “this determination shall expire after one year.” The notice of Rights of Affected Parties did not apply to the proprietary authorization. At some time after issuance of the regulatory authorization, Ms. Burgess initiated additional work to repair the SW Jetty. The photographic evidence, which is persuasive, indicates that the work on the SW Jetty, including the concrete cap, was complete by the end of 2008. When Applicants purchased the Property, the determination of exemption issued in 2008 had, by application of the notice of Rights of Affected Parties, expired. Shortly after the Applicants purchased the property, they had the existing family home demolished. Applicants intend to construct a winter vacation home for their personal use on the property. 2012 Storms In August and October 2012, Grassy Key was subject to event-driven conditions as a result of the passage of Hurricanes Isaac and Sandy. Those storms redistributed large areas of sediments that had been moved offshore by the effects of Hurricane Wilma. The Proposed Permit The February 20, 2013, Permit provides that the structures described herein do not require the issuance of an Environmental Resource Permit, subject to the criteria and conditions in Florida Administrative Code Rule 40E-4.051. The Permit provides that the boat ramp is eligible to use the general permit in Florida Administrative Code Rule 62-330.417, the repair and replacement of the dock is exempt pursuant to section 403.813(1)(b), Florida Statutes, the maintenance dredging of the Channel is exempt pursuant to section 403.813(1)(f), and that the repair and replacement of the NW Jetty, the SW Jetty, and the Mid-bulkhead are exempt because the structures are “historic in nature and pre-dates Department regulations.” In addition to the regulatory authorizations, the Permit granted proprietary authorization by Letter of Consent for the dock pursuant to Florida Administrative Code Rule 18- 21.005(1)(c)4., and for the Channel, the NW Jetty, the SW Jetty, and the Mid-bulkhead pursuant to rule 18-21.005(1)(c)7. The Permit established the mean high-water line as that existing in 1974 and depicted on the “Richmond Survey.” Proprietary authorization for the boat ramp was determined to be unnecessary due to its location above the mean high-water line. Finally, proprietary authorization for the “Sandy Area” or beach between the Mid-bulkhead and SW Jetty was granted by Letter of Consent pursuant to rule 18-21.005(1). On September 20, 2013, the DEP filed a Notice of Additional Grounds for Exemption Determination, in which it found each of the structures subject to the regulatory review to “have only minimal or insignificant individual or cumulative adverse impacts on water resources” and to thus be exempt from the need to obtain an Environmental Resource Permit pursuant to section 373.406(6), Florida Statutes. On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action in which they agreed to certain additional conditions, and which referenced the October 1, 2013, repeal of rule 40E-4.051, and its replacement by the “Statewide ERP rules.” For purposes of this de novo proceeding, the proposed Permit at issue includes the February 20, 2013, Permit; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action. The Proposed Structures Groins There has been some confusion relating to the names of the structures that are subject to the proposed Permit. Two of the structures are referred to as jetties, the NE Jetty and the SW Jetty, and the middle structure is referred to as the Mid- bulkhead. A jetty is a navigation structure that is constructed at a barrier inlet. Its purpose is to stabilize the inlet and prevent shoaling by “jetting” current and wave-driven sand further offshore, such that the offshore bar is moved into deep enough water to allow navigation in and out of the tidal inlet, and allowing the tidal current between the ocean and the receiving body of water to keep the inlet scoured and open. There are 48 jetties on the open coast of Florida, none of which are in the Florida Keys. A groin is a structure designed for shore protection purposes. A groin is typically aligned perpendicular to the shoreline, or “shore normal.” The structures identified in the Permit as the NE Jetty and the SW Jetty are clearly groins, and not jetties. The mid-bulkhead is a groin, generally for shore confinement, with a channel-facing bulkhead. For purposes of continuity, the structures will be identified by the names given them in the Permit. Since there is negligible wave energy along the shoreline normal conditions, the groins have little or no day- to-day effect on longshore transport. Under storm conditions, the structures affect longshore transport, as evidenced by accretional “fillets,” and function as shoreline protection and confinement structures. The rock groins provide shelter, habitat and structure for corals, sponges, lobster, and fish in the area. The preponderance of the evidence demonstrates that the groins authorized by the Permit will have no adverse effect on fish and wildlife resources. NE Jetty The NE Jetty was originally constructed in the early 1960s, likely concurrent with the dredging of the navigational channel. The quality of the aerial photographs of the period make it difficult to tell if the NE Jetty was a loosely-placed rock embankment or a more well-designed and constructed structure. However, the fillet of sand accreted to the north of the Channel demonstrates that the jetty was in existence and functioning as a shore-protection structure. By the 1970s, the NE Jetty had become overwhelmed by longshore sediment transport from the northeast. Sediment overtopped the NE Jetty and filled in the landward reaches of the Channel. At that point, ability of the NE Jetty to perform as a shore protection structure was compromised to the point that it could no longer hold the shoreline out of the basin or the landward portion of the Channel. The Mid-bulkhead became the dominant structural control over the shoreline and started to accrete the shoreline to the northeast. At some time between 1977 and 1981, the Channel was maintenance dredged pursuant to a permit issued by the Department of Environmental Regulation, DEP’s predecessor agency. The NE Jetty appeared on the plans for the maintenance dredging. Thus, the most reasonable inference that can be drawn from the evidence is that the NE Jetty was repaired and restored in conjunction with the approved maintenance dredging. By 1981, the NE Jetty had been restored as the dominant shore protection structure north of the Channel, and a fillet of accreted material had been reestablished. The aerial photographs from that period are not sufficiently distinct to determine the precise size, shape, and configuration of the NE Jetty at that time. However, there is no evidence of additional work having been performed on the NE Jetty between 1981 and 1985. By 1985, the NE Jetty existed in substantially the size, shape, and configuration as it existed at the time of Hurricane Wilma. Between 1981 and the 2005 arrival of Hurricane Wilma, the evidence is convincing that the NE Jetty was holding up the shoreline to the northeast and preventing sediment from filling in the upper reaches of the Channel. Although the evidence suggests that the NE Jetty had, by 2005, begun to show its age, the continuous presence of an accretional fillet demonstrates that it continued to serve its function as a shore-protection structure. Although the NE Jetty suffered damage from Hurricane Wilma, it continued to perform its shoreline protection function. Aerial photographs taken in 2009 and 2011 show a relatively distinct structure with a well-defined accretional fillet. Thus, the greater weight of the evidence demonstrates that, at the time of its repair in May 2011, the NE Jetty was a functional groin. The NE Jetty, as repaired in 2011, is of substantially the same size, shape, and location as the structure depicted in aerial photographs taken in 1985, 2009, and early 2011. Although the elevation of the structure was increased over its pre-repair elevation, the increase was that reasonably necessary to prevent the function of the structure from being compromised by the effects of age and weather. The work performed on the NE Jetty, consisting of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Since 2005, and at the present time, the shoreline north of the NE Jetty has reached a state of equilibrium and stability, and is not expected to change significantly from its current condition. The preponderance of the competent, substantial evidence demonstrates that the effect of the NE Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. The sand and sediment accreted to the north of the NE Jetty since 1981 is in the range of 250 square feet. SW Jetty The aerial photographs from 19647/ demonstrate that some form of structure then existed at the location of the current SW Jetty. The structure is indistinct due to what appears to be sidecast material from a small channel in front of the property to the immediate south of the Property. By 1971, the SW Jetty had become more distinct. From that time forward, the SW Jetty, and its accompanying fillet of accreted material, appears in roughly the size and shape of the structure as it appeared immediately prior to the arrival of Hurricane Wilma. The SW Jetty was heavily impacted by Hurricane Wilma. The overwash from the storm created a substantial runout alongside the SW Jetty, and the post-storm aerials suggest that the jetty boulders were undermined and shifted from their more uniform 2003 appearance. Immediately after Hurricane Wilma, the owner of the Property commenced restoration and repair activities. As part of the activities, the SW Jetty was repaired with the addition of boulders, which were often three feet and every now and then as much as four feet across. The boulders, being irregularly shaped, could not be stacked like Legos®, so the repairs were not neatly within the precise pre-Wilma footprint. However, the repaired SW Jetty was substantially in the length and location as existed prior to Hurricane Wilma, though it may have had a slightly wider cross-section. By 2007, the work on the SW Jetty was complete, and it had assumed its present appearance with the addition of a concrete cap. Its appearance -- i.e. length, width, and location -- in 2007 and 2008 was not dissimilar from its appearance in 2003. As repaired, the SW Jetty effectively constitutes the same structure that it has been since its initial construction. From a coastal engineering perspective, the work that was performed on the SW Jetty, consisting generally of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Dr. Lin testified that between 1974 and 2011, the area to the southwest of the southwest jetty was “about equalized,” though it was “accreting a little bit.” Thus, the effect of the SW Jetty on the shoreline of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners from 1974 to 2011 was minimal and insignificant. Dr. Lin testified that, since 2011, the same area had eroded. The only substantive shoreline change that logically accounts for that subsequent erosion is the Mid-bulkhead extension, which is slated for removal under the terms of the proposed Permit. Petitioner testified that she observed no adverse effects from activities on the Property until after February 2011.8/ Since work on the SW Jetty was complete by no later than 2008, Petitioner’s testimony supports a finding that the SW Jetty has had no measurable effect on the water resources in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the SW Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. Mid-bulkhead The structure of the Mid-bulkhead first appeared as part of the sidecast material from the excavation of the navigation channel in 1964. It coalesced into a defined but smaller and more rudimentary structure in the 1971-1972 time period. At that time, it was acting as the predominant shore protection structure due to the overtopping of the NE Jetty with sediment, which also filled in the landward reaches of the Channel. By 1981, after the maintenance dredging of the Channel, the Mid-bulkhead had assumed substantially the size, shape, and location that it has currently. The Mid-bulkhead has a navigation function of protecting the landward extent of the Channel from the collapse of adjacent sand and sediment, and a shore protection and compartmentalization function. Those functions have been consistent since 1981. The Mid-bulkhead appears to have been subjected to the overwash of sand and sediment from Hurricane Wilma, though it maintained its shape and form. The outline of the Mid-bulkhead appears to be more well-defined after the initial post-Wilma repairs. In any event, the configuration and size of the Mid-bulkhead is substantially the same as it had been since 1981. At some point, the interior section of the Mid- bulkhead was topped with soil that is inconsistent with that naturally occurring in the area. That fill was confined, and brought the Mid-bulkhead to a more even grade with the rock outline, but could have had no measurable effect on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the Mid-bulkhead is minimal and insignificant. Channel In 1961, the Department of the Army authorized dredging of a navigation channel at the Property. The approved channel was to be 700 feet long, 30 feet wide, and to a depth of five feet below mean low water. The Florida Trustees of the Internal Improvement Fund issued a letter of no objection. By 1964, the Channel that is the subject of this proceeding had been dredged, though not to the 700-foot length approved. Rather, the Channel was dredged to a length of approximately 290 feet. Much, if not all of the dredge spoil was sidecast, creating a rock structure alongside the Channel. Measurements taken during the course of this proceeding demonstrate that the initial dredging resulted in near vertical side slopes, which shows that the bailing of the bedrock was accomplished to the limits. The width of the Channel is from 28 feet to 32 feet wide, which is within an acceptable tolerance of the 30-foot approved width. In 1976, the then-owner of the Property sought a permit from the DEP’s predecessor, the Department of Environmental Regulation, to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, to a depth of minus 8-feet mean high water, and to construct a new rock jetty to extend 230 feet waterward from the existing terminus of the NE Jetty. Given the mean tide range of 1.7 feet at the Property, the depth of the proposed dredging would have been minus 6.3 feet mean low water, or 1.3 feet deeper than originally approved. The permit drawings depict the existing NE Jetty, the Channel boundary, the outline of the Mid-bulkhead, and the sidecast rock structure alongside the southern side of the Channel. The permit was denied. In 1977, the owner of the property reapplied for a permit to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, and to a depth of minus 4.0 feet below mean low water nearshore to minus 6 feet below mean low water at the waterward end. The proposal to construct an extension of the NE Jetty was deleted. The permit was issued, and a severance fee for the dredged material was paid based on a projected 700 cubic yards of material removed. The permit drawings and photographs depict the existing NE Jetty, the nearshore Channel boundary, and the general outline of the Mid- bulkhead. By 1981, aerial photographs demonstrate that the maintenance dredging of the Channel was complete, the NE Jetty was in place and functioning to protect the shoreline as evidenced by the accretional fillet, and the Mid-bulkhead had assumed its approximate current shape and configuration. Although the Channel has varied in depth over the years since the maintenance dredging and Hurricane Wilma, the greater weight of the evidence, including photographic evidence, indicates that the Channel was well-defined and remained navigable during that period. The Channel is an open-water exposed channel. Water in the Channel mixes due to direct tidal flow and the sheet flow of water due to shear wind stress. As water passes over the Channel, it sets up gyre, which is a mixing process. The open- water exposed Channel is subject to a high degree of mixing, even on normal waveless conditions, because of the wind transport of water and the tidal transport of water. The Channel is not a semi-enclosed basin. A semi- enclosed basin does not receive the direct forcing functions that an open-water channel receives. A semi-enclosed basin has no direct connection to open waters, but is connected to open waters by a narrower opening. Although a semi-enclosed basin exchanges water via every tidal cycle, the flushing process is one of slow mixing, in which a little bit of water is added to and withdrawn from the larger basin through the narrow opening during each tidal cycle. In such a case, a flushing analysis may be necessary to determine how much time and how many tidal cycles it may take to effect a complete exchange of the water in the semi-enclosed basin, and thus, for example, to dilute a pollutant to an acceptable level. A flushing analysis is not needed in this case because the Channel is an open-water, openly-exposed location subject to a high degree of mixing under normal day-to-day tidal processes. There is no greater basin connected by a restricting connection as with a semi-enclosed basin. Rather, the Channel has direct exposure to the tides, along with wind shear stress moving the water. The evidence in this case is substantial and persuasive, because the Channel is highly exposed to the open water and the tides, and a well-mixed and well-flushed aquatic system, that a flushing analysis is neither required nor necessary. Dock The dock made its first obvious appearance in 1981. It appears in a consistent shape and appearance through 2011. Aerial photographs taken in 2012, after the maintenance dredging of the Channel was conducted, show the dock had been removed. At the time of the hearing, the Applicants had installed new pilings and vent boards for the replacement dock, but the decking had not been installed. Work to complete the replacement of the dock was halted due to the pendency of the litigation challenging the structures. The proposed dock is less than 500 square feet. It is proposed for non-commercial, recreational activities. It is the sole dock proposed on the Property. The proposed dock will not impede the flow of water or create a navigational hazard. Boat Ramp Since the issuance of the 2008 approval, the boat ramp site was graded and stabilized in limerock material. The concrete ramp was not completed due to the pendency of the litigation challenging the structures. However, Applicants propose to pave the ramp with concrete. Based on Mr. Clark’s observations during his site visits, the boat ramp is landward of the mean high waterline depicted on the survey. The preponderance of the evidence demonstrates that the proposed boat ramp will provide access to the Channel, which provides a minimum navigational access of two feet below mean low water to the ramp. Applicants have agreed to install depth indicators at the ramp to identify the controlling depths of the navigational access. The work on the ramp involves no seagrass beds or coral communities. The ramp as proposed will require no more than 100 cubic yards of dredging. The total width of the ramp is to be 20 feet and the ramp surface will be no wider than 12 feet. Beach Area The area between the SW Jetty and the Mid-bulkhead is an accreted beach-type area that has been confined and protected by the Mid-bulkhead and the SW Jetty. The shoreline landward of the mean high water line, from the dry beach and to the upland, is somewhat steeper than adjacent unprotected shorelines, which is indicative of the grooming of the upper beach sediment and the stability of the shoreline between the Mid-bulkhead and the SW Jetty. As a result of the Hurricane Wilma storm surge, a substantial amount of sediment was swept across the Property and into the Atlantic waters. The beach area was inundated with sand and sediment from the overwash, which appears to have moved the shoreline well waterward of its previous position. Along the northern side of the SW Jetty, a substantial channelized gully was created. The configuration of the shoreline post-Wilma suggests that efforts were made by the then-owner of the Property to fill in the gully on the northern side of the SW Jetty, and to groom and restore the shoreline by redistributing sand and sediment on the Property. It is typical, and allowable under DEP emergency final orders, for affected property owners to redistribute overwashed deposits and place them back within the beach system. In that regard, the DEP encourages the redistribution of clean beach sand back onto the beach. The then-owners of the Property were not alone in taking steps to address the effects of Hurricane Wilma on their adjacent shorelines. The photographic evidence demonstrates that Petitioners engaged in similar restorative activities, which included bringing in material purchased from a contractor to fill in a gully created on their property by the overwash. Observation of representative soil samples from the beach area demonstrate that the soils are consistent with those in the upper beach areas found throughout the area. The only areas of inconsistent soils were found in the interior of the rock structure of the Mid-bulkhead, which contained a four to six-inch layer of soil with a different consistency and darker brown color, and small area of similar soil directly adjacent thereto and well above the mean high water line. The greater weight of the competent, substantial, and credible evidence demonstrates that there was no substantial amount of “fill” from off-site placed on or adjacent to the beach area. Rather, the nature, appearance, and composition of the soils suggests that the temporary increase in the size of the beach area after Hurricane Wilma was the result of grooming and redistribution of sand and sediment pushed onto the Property and into the nearshore waters by the Hurricane Wilma storm surge. In the years since Hurricane Wilma, the influence of normal tidal and weather-driven events has returned the beach area between the mid-bulkhead and the SW jetty to roughly the configuration that existed prior to the passage of Wilma, though it remains somewhat waterward of its pre-Wilma location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the February 20, 2013, proposed Permit, as conditioned by Applicants’ December 12, 2013, Proposed Changes to the Pending Agency Action. DONE AND ENTERED this 25th day of July, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2014.
The Issue Whether Petitioner, Palafox, LLC (“Palafox”), is entitled to its reasonable attorney’s fees and costs incurred in its defense of the challenge to its Environmental Resource Permit (“Permit”) as raised in the Amended Petition in the underlying administrative matter, filed by Respondent, Carmen Diaz or her attorney, Jefferson M. Braswell, or both, pursuant to section 120.569(2)(e), Florida Statutes.
Findings Of Fact Palafox is a Florida limited liability company and was the applicant for the Permit in Case No. 19-5831. Palafox owns Lot 1, Block B, of the Palafox Preserve Subdivision, the six-acre property on which the Project will be developed. Ms. Diaz is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision. Petitioner is a member of the Palafox Preserve Homeowners Association, Inc. (the “HOA”). The HOA is not a party to this litigation. The HOA has previously agreed not to challenge any permits sought by Palafox for the development of the project. Mr. Braswell is not a party to this matter. He represented Ms. Diaz through the Final Order issued by the District in Case No. 19-5831. Palafox’s Renewed Motion for Fees sought attorney’s fees and/or sanctions against Mr. Braswell for his role in that case, as allowed under section 120.569(2)(e). Ms. Diaz’s Challenge to the Project The Project consists of a 36-unit multi-family residential development proposed to be built on Lot 1, Block B, of the Palafox Preserve Subdivision. The Project encompasses approximately 2.68 acres of Lot 1, Block B. The Project lies adjacent to, and immediately west of, Martin Hurst Road and adjacent to, and immediately south of, Palafox Lane. The remainder of 2 Mr. Braswell also filed a Proposed Final Order and Amended Proposed Final Order, which were not authorized and have not been considered by the undersigned in preparing this Final Order. Mr. Braswell is not a party to this proceeding and did not become a party thereto by merely appearing at the final hearing to make some argument on his own behalf. He did not move to intervene in this proceeding, or otherwise obtain party status, not even by ore tenus motion at the Final Hearing. Mr. Braswell did not file a notice of appearance and did not attend the Final Hearing as counsel for Ms. Diaz. Furthermore, Mr. Braswell did not request permission to submit a Proposed Final Order. Palafox’s property runs to the west of the Project and south of Palafox Lane, and is located within a perpetual conservation easement. Ms. Diaz’s property is a residential lot located west of, and not adjacent to, Palafox’s property. An approximate nine-acre conservation easement owned by the HOA lies between Ms. Diaz’s property and Palafox’s property. A portion of Petitioner’s back yard is located within the conservation easement. Approximately seven acres within the conservation easement are wetlands. The conservation easement, including the wetlands, straddles the boundary between Block A and Block B, with about two-thirds in Block A, for the most part owned by the HOA, and one-third in Block B, wholly owned by Palafox. Palafox sought an environmental resource permit from the District to construct storm water management facilities (SWMFs) to serve the Project. The SWMFs to be authorized by that Permit are on Palafox’s property. Palafox’s property, the conservation easement and wetlands, and Ms. Diaz’s property, are all located within the same closed basin. This means that storm water within the basin will generally not flow out of the basin in all storm events up to, and including, a 100-year, 24-hour storm. On October 30, 2019, following the District’s notice of intent to issue the Permit, Ms. Diaz filed an Amended Petition for Formal Proceedings Before a Hearing Officer (“Amended Petition”). In the Amended Petition, Ms. Diaz challenged the District’s issuance of the Permit alleging that the Project will (1) have adverse water quantity impacts to adjacent lands; (2) cause adverse flooding to on-site or off-site properties; (3) cause adverse impacts to existing surface water storage and conveyance capabilities; and (4) adversely impact the value and function of wetlands and other surface waters. She also alleged that the wetland had not been properly delineated previously, and that an older delineation was no longer valid. Specifically, Ms. Diaz alleged that the “proposed [storm water] system results in a massive change in the amount of storm water being discharged from the applicant’s site directly onto Petitioner’s property which leads to adverse impacts on her property.” On November 19, 2019, the Final Hearing was scheduled for February 19 and 20, 2020. Ms. Diaz was deposed on January 17, 2020, almost three months after filing her Petition, and two months after the Final Hearing date was set. The deposition revealed that Ms. Diaz was not the least bit informed of the Project. Ms. Diaz had not reviewed the Permit, and believed that the Permit authorized Palafox to build the Project, rather than the storm water treatment system. Ms. Diaz had not seen the site plans, had no understanding of what the Project would look like, and admitted she had done nothing to learn about the Project. In fact, Ms. Diaz testified repeatedly at her deposition that she simply does not want the Project built, regardless of whether it would actually impact her property or the wetlands, and regardless of what kind of development it is. She does not want Palafox’s property developed, in any capacity, and wants it to stay “the way it is now.” Ms. Diaz conducted no written discovery nor any depositions, and did not hire an expert until approximately one month before the final hearing. That expert, Mr. Carswell, had never visited the site. Although Mr. Carswell conducted a storm water analysis, Mr. Carswell conceded that Mr. Braswell prepared and sent him a ten-page report and asked him to consider it as Mr. Carswell’s opinion report. In reviewing and adopting that report, Mr. Carswell admitted that he did not do the type of analysis that he would have if he wanted to determine the incremental addition of storm water to a closed basin. Instead, he did a simple water balance equation. Mr. Carswell testified that he had never before used this type of analysis to support permitting for a storm water pond and that if he was going to try to predict the incremental contribution of storm water discharge from a project into a closed basin, he would utilize a model similar to the one submitted by Palafox in support of this Project. The undersigned found Mr. Carswell’s analysis was not a professionally-acceptable method for determining whether the Project met the standards for the Permit. In addition to Mr. Carswell, Petitioner offered the testimony of four other witnesses at the final hearing. None were able to offer any evidence that Palafox failed to provide reasonable assurance that the project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on-site or off- site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; and Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The testimony of two of those witnesses, Mr. Songer and Mr. Stinson, was in transcript form and was actually given in DOAH case No. 18-2734. In that case, neither witness’ testimony was accepted to defeat Palafox’s site plan approved under the more stringent permitting requirements of Leon County. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s (Sept. 24, 2018)). The remainder of Ms. Diaz’s witnesses’ testimony was equally ineffective. Mark Cooper, the Project engineer, testified that the Project would raise the water level in the wetland by .04 feet in a 100 year, 24-hour storm event, which he classified as a negligible impact. Mr. Cooper’s testimony confirmed that of Palafox’s expert engineer, Mark Thomasson, who classified that increase as “de minimus.” Cheryl Poole, Ms. Diaz’s other witness and an engineer who worked on a prior project on the property, merely testified to conditions that existed a decade prior that are not relevant to the Project. In short, Ms. Diaz presented no credible evidence at all that the Project would negatively impact either the wetlands or her property. After the final hearing, the undersigned administrative law judge issued a Recommended Order, adopted in toto by the District, concluding that Ms. Diaz did not carry her burden to prove that Palafox failed to provide reasonable assurances that the Project will not (a) cause adverse water quantity impacts to receiving waters and adjacent lands; (b) cause adverse flooding to on-site or off-site property; (c) cause adverse impacts to existing surface water storage and conveyance capabilities; and (d) adversely impact the value and functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Braswell’s Prior Challenges to the Project Mr. Braswell has been involved in challenges to the Project for over five years. In those challenges, he has represented his parents, the HOA, Ms. Diaz, or some combination of those parties. In 2015, Mr. Braswell filed an administrative challenge on behalf of his parents—Wynona and Robert Braswell (the “Braswells”), who live in the Palafox subdivision and are members of the HOA. See Braswell v. Palafox, LLC (Fla. DOAH Case No. 15-1190). In that administrative challenge, the Braswells challenged Leon County’s approval of the Project site plan.3 The Braswells raised many of the same factual issues regarding the wetlands and storm water impacts that Mr. Braswell later raised again in Ms. Diaz’s challenge to the Permit. The Braswells also raised the issues that 3 Mr. Braswell admitted that when he filed that case, he “didn't know very much about the [P]roject,” “didn't know the rules” for Leon County’s site plan approval, and that he and his parents “didn't realize kind of what [they] were getting [them]selves into.” the Project violated a private covenant in the subdivision’s governing documents, which was beyond the Division’s jurisdiction. Accordingly, Palafox filed a civil suit for declaratory judgement to resolve that claim. In the interim, jurisdiction of Case No. 15-1190 was relinquished to the County without prejudice to refer it again to the Division should the civil suit not dispose of the issues raised in the administrative case. See Braswell v. Palafox, LLC, Case No. 15-1190 (Ord. Rel. Jsd. May 14, 2015). After an initial grant of summary judgment for the Braswells and a reversal by the First District Court of Appeal, the trial court entered a final judgment for Palafox. (Final Judgment, Evergreen Communities, Inc. v. Braswell, No. 2015-CA-000765 (Fla. 2d Cir. Ct. 2017)). After the civil suit was resolved, Mr. Braswell renewed his parents’ challenge to the site plan. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s Sept. 25, 2018). As in the underlying Permit challenge, Mr. Braswell argued that the wetlands were not correctly delineated, and that the project would cause the wetland area to overflow and burden the “downstream” storm water facilities owned by the residential homeowners. While the County did not issue a storm water permit for the Project, approval of the site plan required a determination that the Project meets the County’s environmental code requirements. The County’s standard for volume control requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That standard is more stringent than the District’s requirement to provide “reasonable assurances” that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; and will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. In the site plan challenge, the administrative law judge found that the Project was consistent with the Code requirements and specifically found as follows: the Project’s proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. no statute, ordinance, rule or regulation requires a wetland to be re-delineated after it has been identified and placed in perpetual preservation under a conservation easement and that the argument to the contrary “would lead to the absurd result of re-surveying and re- recording allegedly ‘perpetual’ conservation easements every time a lot was developed” within a plat. Id. at R.O. ¶¶ 37 & 51. In yet another case arising from this dispute, in 2016, Mr. Braswell’s father filed a formal complaint against the Project engineer with the Florida Board of Professional Engineers. Mr. Braswell submitted additional information in support of that proceeding. See In re Mark Cooper, P.E., Case No. 2016052464 (Fla. Bd. of Prof’l. Eng’rs Mar. 14, 2017). The Closing Order in that case found no probable cause of a violation by Palafox’s professional engineer related to the storm water system after the independent reviewer concluded that, based on the materials submitted by Petitioner’s counsel, “there should be no adverse surface water impacts to adjacent property” from the Project. Id. at ¶ 1. After the resolution of the civil suit and prior administrative challenges, Palafox, the HOA, and the Braswells entered into a settlement agreement. Under that agreement, the HOA and the Braswells agreed they would not challenge the Project any further, as long as it complied with the site plan that the County had approved. Mr. Braswell signed that agreement on behalf of his parents as attorney in fact. Palafox, believing that Ms. Diaz was bound by that settlement agreement as a member of the HOA, and that she had breached the agreement by filing the Amended Petition in the Permit challenge, filed a civil suit in Leon County Circuit Court. See Palafox, LLC v. Diaz, Case No. 2019-CA-002758 (Fla. 2d Cir. Ct.). Mr. Braswell, representing Ms. Diaz in that suit as well, filed a counterclaim, subsequently voluntarily dismissed, in which he again raised the issues of the wetlands delineation and downstream flooding. (Def’s Ans. and Aff. Def. and Countersuit for Dec. Jdmt. at pp. 6-9). At no point between the resolution of the prior litigation regarding this Project and filing the Permit challenge did Mr. Braswell obtain new evidence or expert opinion to suggest that the Project would not meet the District’s more lenient standards for granting an environmental resource permit. Nor did he adduce evidence at hearing that would lead an administrative law judge to reach a different conclusion from Judge Ffolkes—that the project would not cause adverse impacts to downstream owners, that the Project would not adversely impact the wetlands, and that no new wetland delineation was required.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
Findings Of Fact The Parties The Applicant, Trail Ridge Landfill, Inc. (Trail Ridge), is a corporation formed in 1989 for the purpose of developing a landfill project and providing waste disposal capacity for the City of Jacksonville. Trail Ridge Landfill, Inc. is a wholly-owned subsidiary of Waste Management of North America, Inc. Its operating division is involved in the waste collection, recycling and disposal business. Waste Management of North America, Inc. is a wholly-owned subsidiary of Waste Management, Inc., which is involved in all facets of solid waste collection and disposal nationally. The Florida Department of Environmental Regulation (DER) is an agency of the State of Florida charged with the responsibility of regulating solid waste management facilities and with permitting their initial construction and operation. It is charged with reviewing applications for permits for construction of such facilities, for reviewing applications for dredge and fill permits in wetlands or waters of the State and, as pertinent to the project involved in this proceeding, for storm water management and storage of surface water and the regulation thereof through its permitting and enforcement authority contained in Chapters 403 and 373, Florida Statutes, and Titles 40C and 17, Florida Administrative Code. The Petitioners are Coastal Environmental Society, Inc. (CESI), a not- for-profit Florida corporation established for the purpose of protecting natural resources. St. Johns Preservation Association, Inc. (SJPA), also a not-for- profit Florida corporation established for the purpose of protecting the community, including environmental concerns; Baldwin-Maxville Coalition, Inc., also a not-for-profit corporation established to promote the health and welfare of its community, including environmental concerns; William McCranie, a resident of Jacksonville, Florida; Darryl Sperry, a resident and citizen who lives 1 1/4 miles from the proposed landfill site in Baker County. All Petitioners have been established to be substantially affected by the proposed permitting and the projects related thereto and all have met pertinent standing requirements as a matter of fact and law. The Respondents do not contest the standing of the Petitioners. Background and Purpose of the Project The purpose of the proposed landfill facility is to address the solid waste disposal needs of the City of Jacksonville and Duval County (the City). The City currently disposes of solid waste at two landfills. One is on the east side of Jacksonville on Gervin Road, and the other is located in the north area of Jacksonville on Island Road. The presently used, east landfill is an unlined landfill currently operated pursuant to a DER Consent Order, in connection with which closure of that landfill is planned. The north landfill consists of three unlined cells and one lined cell. The City currently has unused landfill capacity at these two landfills which will last approximately one more year, but has also sought approval for expansion of the north landfill which would provide about two more additional years of capacity, if approved. The proposed landfill project, if approved, constructed and operated, would meet these solid waste disposal needs for approximately 20 to 25 years. The project at hand began when the City issued a Request For Proposal for private companies to submit bids to the City for construction of additional landfill capacity somewhere to the northwest of Jacksonville in Duval County. Two companies that met qualifying requirements submitted proposals in response to the request for proposals. Trail Ridge was one of those two qualifying bidders. The City selected the Applicant for contract award and then entered into a contract. The Applicant has an option to purchase the proposed landfill site from Gilman Timber and Land Company (Gilman, Gilman Paper Company). After issuance of the permits to the Applicant, the option would be exercised. Thereafter the property would be immediately conveyed to the City from the Applicant. Thus the site of the proposed facility will ultimately be owned and controlled by the City, although the Applicant will operate the landfill under its contract with the City. Gilman presently uses the 1,288 acre site and several thousand surrounding acres for growing timber, principally pine trees, in a pine plantation-type operation grown for use as pulp wood. Much of the site and surrounding Gilman land is characterized by pine trees grown to an age of 20 years or less and then harvested. A great deal of the site property has recently been cut, chopped, plowed re-bedded and re-planted with pine trees. Although some of the site is characterized by mature timber, much of the timber has been recently planted or is otherwise timber not yet mature enough for harvest. The option agreement provides that Trail Ridge will purchase the property from Gilman for $10,000 per acre. The City will then purchase the 1,288 acres from the Applicant for $2,600 per acre, which the Applicant maintains is the current, fair-market-value for the land as it is currently used as pine plantation for growing pulp wood. These terms and conditions are a part of the City's Request For Proposals. In addition to paying the Applicant $2,600 per acre for the 1,288 acre site, the City will pay the Applicant a fee over the life of the operation of the proposed landfill. The fee, amortized over the 20- year span of the agreement, will make up the difference between the Applicant's $10,000 per acre purchase price paid to Gilman and the City's $2,600 per acre initial purchase price paid to the Applicant. The City will thus ultimately re- pay Trail Ridge the $10,000 per acre for the purchase price for the property. The Applicant corporation will operate the landfill over its entire useful life and then close it. Thus, the Applicant's own figures show the land is valued at $3,348,800. The record does not reflect the reason for the purchase price paid to Gilman being $12,880,000, of which the City will repay $9,000,000 to the Applicant in the form of the operation fee, over and above the initial payment to the Applicant of $3,348,800. In any event, the utilities payment to the Applicant of the $12,880,000 for the land and the operation of the landfill only represents the recompense to the Applicant for the purchase funds expended for it to buy the site from Gilman. Additionally, the Applicant, through its option agreement with Gilman, is required to pay Gilman a $60,000 per month option fee. $15,000 per month of that must be paid during the pendency of the option, with the remainder of the $45,000 monthly fees due upon closing of the purchase. The portion of the operation fee paid by the City over and above the $2,600 per acre initial purchase price, attributable to the land appraisal itself, will be paid by the City on the basis of a certain dollar fee-per-ton of solid waste handled and disposed of in the landfill by the Applicant. Testimony indicates this will be approximately $8.00-$15.09 per ton, although the evidence as to which amount is indefinite. The testimony of Applicant's witness Allen, in any event, references these amounts as applicable to the City's solid waste "stream" handled by Trail Ridge at the proposed facility. Its contact with the City assures the Applicant of a minimum of 569,000 tons of waste per year to which the fee would apply. The City currently generates approximately 750,000 tons of waste per year. There is no evidence of what the construction or other capital costs or operation expenses related to the proposed facility will be over the useful life of the facility for the Applicant or related corporations. Site and Design The proposed site is 1,288 acres in size, located in southwestern Duval County, approximately three miles south of Interstate Highway 10, 1.5 miles west of U.S. Highway 301 and 1.14 miles north of State Road 228. The site is located in a sparsely populated area approximately 4 to 6 miles from the City of Baldwin, 5 miles from the City of Macclenny and 2 miles from the City of Maxville. A substantial portion of the proposed site will be left undisturbed and used as a buffer area to separate it from any surrounding development. There are water supply wells within fairly close proximity to the site. One well is within a mile of the site and three are approximately 1.5 miles southeast of the site. The proposed facility will include both a Class I and Class III solid waste disposal area. The Class I area will be approximately 148 acres in size, and the Class III area, 28 acres. The Class III disposal area will only be used for non- household refuse such as construction debris, tree and shrubbery clippings and the like, which will not generate deleterious substances in liquid or gaseous form, as will the Class I landfill. The remainder of the 1,288 acres will be used for buffer zones, dirt borrow areas, storm water management facilities and ancillary facilities necessary to the day to day operation of the landfill. No part of the Class III disposal area will be located within 200 feet of jurisdictional wetlands, which are the closest bodies of water. The project will be located on "Trail Ridge," which is a relatively elevated geographic feature, extending generally in a north-south direction in western Duval County. Geologically, it is an ancient sand dune. There is a substantial decline in elevation of this portion of the ridge from west to east, which produces surface water drainage patterns in a west to east direction at the site, also accompanied by surface water drainage patterns in a southerly- northerly direction into wetlands which occur on the south and north verge of the site, because the site is a prong or easterly extension of Trail Ridge lying between wetlands which occur on the northerly, southerly and easterly boundaries of the Class I disposal site. The 1,288 acres, including the landfill sites themselves, have been used for silvi-culture practices since 1948 or earlier, and are currently managed primarily as a slash pine plantation grown for pulp wood purposes. The present owner of the site, Gilman Paper Company, plans to continue this use of the site should the landfill project not be approved and constructed. Since 1948, the entire site, including much of the wetlands thereon, have been logged, some portions of it as many as three times. The silvi-culture practices at the site include clear- cutting, chopping, burning, harrowing, tilling and bedding of the soil, and planting of pine trees. The pine trees are grown to be harvested on a 20-year cycle or less. Due to these intensive silvi-cultural practices, the natural conditions of the site have been significantly altered and much natural vegetation, such as bottom-land hardwoods, has been replaced by planted pine trees. The area has been extensively ditched for drainage purposes and logging roads have been constructed throughout the site. The design of the Class I disposal area of the landfill includes three major components: a liner system, which includes a permanent leachate collection and removal system, a cap and closure system and a gas control system. The Class I disposal area is designed to be 140 feet high when the landfill is completed and closed in approximately 20-25 years. It will have typical landfill refuse "lifts," of approximately 8 to 12 feet in height, with a side slope grade of three horizontal feet to one vertical foot of elevation gain. This is the maximum grade steepness allowed by DER rules. The Class III landfill, in which no household garbage, chemicals, oils and greases or other deleterious substances will be deposited, will include only a cap and closure system. In order to carry out Department regulatory requirements designed to contain waste permanently in a well- defined area and to minimize the amount of leachate produced within a landfill, as well as to collect and remove leachate that is produced, the landfill will have, in effect, a double liner system. The liner system is designed to contain the leachate produced when rain water contacts waste in the landfill and to cause that leachate to percolate vertically downward through the landfill, capture it in the liner system, prevent it from contacting groundwater and to remove it and treat it. Leachate from the Class I disposal area will be contained by the liner system and removed by a leachate collection and removal system. The liner system, starting from the bottom and proceeding upward, will consist of a 6 inch thick layer of compacted, subgrade soil. Over that layer, a prefabricated "bentonite" clay-like material will be deposited. Directly over the bentonite layer will be a high density polyethylene liner (the secondary liner) called a "geomembrane." The bentonite material has the characteristic of swelling when contacted by a liquid so that, if the geomembrane leaks, the bentonite will swell and plug the hole in the liner above it. On top of the bentonite layer and the geomembrane layer, is a synthetic drainage material called "geonet." Geonet has a very high transmissivity rate and therefore has great capacity to conduct water within its own plane. Lying immediately above the geonet material is a geotextile filter designed to keep sand out of the pores or interstices of the geonet. Above that geotextile filter is a second geomembrane (the primary liner). Above the second geomembrane is another geonet layer, as well as another geotextile filter layer. Then to protect the entire liner system from damage, two feet of clean sand will be placed above the uppermost geotextile filter layer. The two feet of sand also acts as a drainage layer for the uppermost geonet. The leachate that percolates down through the waste and the sand will contact the geonet and then be carried down slope on top of the geomembrane. This constitutes the leachate collection system. The bottom geonet is called the "leak detection system." This is because, if a hole develops in the primary liner, any leachate coming through the hole will be quickly drained away through the bottom geonet. The bottom geonet thus operates as a backup leachate collection system, since any leachate reaching the bottom geonet will also be discharged into the leachate removal system. If a leak should develop in the secondary liner, the bentonite material would quickly plug the leak, swelling and absorbing that liquid. The Petitioners have stipulated that the Applicant has proposed a liner system and leachate collection system for the Class I disposal area which meets all criteria of Chapter 17-701, Florida Administrative Code, except as to the requirements of Rule 17-701.050(5)(c), (e)3. and 4. and (f)3., Florida Administrative Code. The Applicant demonstrated that the liner system and leachate collection system will meet the criteria of Rule 17- 701.050(5)(c), Florida Administrative Code. The liner system will be installed in accordance with a quality assurance plan. A specific condition already agreed upon will require the Applicant to submit for approval a revised quality control and assurance plan for installing the Class I synthetic liner system, after selection of the liner manufacturer and prior to the liner's installation. The liner system is designed so that it will be protected from puncture by waste materials or landfill operation equipment. In addition to the two feet of sand placed on top of the entire liner system to protect it, when initial waste disposal begins, the first lift of waste across the entire area of the liner system, as it is installed in phases, will be composed of 6-8 feet of "select waste" to protect the liner from puncture. Select waste is waste containing no pipes, roots or other potentially puncturing objects which could penetrate the sand layer to damage the liner system. A quality assurance engineer will be on site full-time supervising the initial placement of the select waste until that phase of the landfill operation is completed. A grant of the permit should be so conditioned. The Applicant has established that the liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e), Florida Administrative Code. The leachate depth on top of the primary and secondary liners will not exceed a foot because the geonet has the capacity to quickly remove leachate from the liner. The actual hydraulic head of leachate on the primary liner will be only approximately 1/4 inch. The depth on the secondary liner was shown to be even less. The liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e)3. and (f)3., Florida Administrative Code. The design of the collection system, including the geotextile filter, will prevent clogging of the system throughout the active life and closure period of the landfill, primarily by placing a gravel aggregate around the collection pipe so as to prevent debris from entering the system. A pilot line will also be installed in each collection pipe to facilitate access for mechanical cleaning, should it be necessary. In the unlikely event of an obstruction in the system, the leachate would simply bypass that area and continue down-grade to the next downstream leachate collection pipe and be removed from the landfill for treatment by that means. The liner system and leachate collection system will also meet the criteria of Rule 17-701.050(5)(e)4., Florida Administrative Code. The leachate collected will be carried downhill to pipes at the east end of the landfill. The leachate will then be pumped from the pipes into storage tanks. Trucks will then be filled with leachate to be transported to the City's Buckman Regional Wastewater Treatment Plant, owned and operated by the City, for treatment and disposal. Unrefuted evidence shows that this plant has adequate capacity and treatment capability to safely treat and handle the leachate. The truck loading areas will be equipped with berms and other means of protecting the surrounding wetlands, surface and groundwaters from leachate spills during the truck filling process. The Applicant's evidence does not demonstrate, however, that the tanks themselves and the area surrounding them will have protective measures for containing leachate spills. In order to comply with the above rule, the totality of the evidence concerning the leachate collection, disposal system and treatment method demonstrates that the tanks should be accompanied by a surrounding containment system (walls or berms) which will have the capability of containing the entire capacity of a tank should failure of a leachate collection tank or related piping or valving occur. Any grant of the permit should be so conditioned. The Petitioners have stipulated, and the Department agrees, that the Class III disposal area is exempt from the liner system and leachate collection system requirements of the above-cited rule provisions. Covering and Closure System Both the Class I and Class III landfills are designed with a composite soil covering system to minimize the amount of rainfall which can come into contact with the solid waste so as to minimize the creation of leachate. During the day to day landfill operations, a 6 inch initial cover will be applied to enclose each Class I landfill disposal cell on a daily basis, except for the working face itself, where waste is currently being deposited. The working face may be left uncovered, so long as solid waste is scheduled to be placed on it within an 18 hour period. A 6 inch initial cover will also be applied once every week to enclose each Class III landfill disposal cell. Thereafter, an intermediate cover of one foot of compacted earth will be applied on top of the initial cover within seven days of initial completion, if a final cover or additional lift on top of that completed cell is not to be applied within 180 days of cell completion. The initial cover will consist of sandy soil, over which will come the intermediate cover of one foot of compacted earth. The final cover will be applied to those portions of the landfill which have been filled with waste to the extent of designed dimensions at the time those portions have been filled. The final cover, to be placed on the sides of the landfill and ultimately upon the top at the end of its useful life, will be placed on top of the 12 inches of intermediate soil layer and will consist of 12 inches of compacted clay with a permeability of 1 X 10/-7 cm/sec. Next will come a layer of 12 inches of compacted soil and then a final layer of 12 inches of top soil, upon which the Applicant will plant grass for erosion control. Erosion of the cover layers on the side slopes is designed to be minimized by closing areas of the landfill as they are filled, an operational procedure commonly referred to as "close as you go." The final cover layers placed on the landfill outside of the clay cap are designed to allow the establishment of a planted grass cover as soon as possible to minimize erosion of the cover material and the side slopes. In addition, the intermediate cover placed on top of and between each cell, beneath the clay layer surrounding the outside perimeter of the landfill, has a high permeability, thereby acting as a drainage layer to direct rainfall and leachate vertically downward to the leachate collection system, as well as to collect runoff so as to retard erosion. Erosion is also retarded, as is the runoff of storm water/leachate over the side slopes of the landfill, by containing storm water which comes into contact with the working face of the landfill cells. This will be accomplished by minimizing the size of the working face to approximately 42 feet width. This will serve to reduce the potential for storm water to contact waste. Additionally, berms will be constructed around the working faces of each active cell which will cause any runoff or storm water which gets inside the working face of the cell to remain there and to percolate through the land fill to eventually be collected as leachate by the collection system. If enough rain falls on the working face of a cell to cause an overflow of storm water over the berms, additional berms placed on the interior slopes of the landfill will catch the overflow and divert it back through the landfill and the leachate collection system. The Applicant contends that normal maintenance equipment and personnel will be able to maintain the exterior side slopes of the landfill and thus minimize erosion. However, if erosion should become a problem, the Applicant proposes to install interceptor berms constructed on the side slopes, accompanied by various geotextural fabrics or synthetic materials proposed to be imbedded on the side slopes to help anchor the interceptor berms. These berms, however, have been demonstrated by Petitioner's witness, Mr. Peavy, to be inadequate to retard erosion. In fact, they may promote erosion because they would be insufficiently anchored to the side slope (as designed with 3:1 slope) and the downhill slope of the berms themselves is considerably steeper than a 3:1 ratio, which will actually promote erosion. The erosion problem will be discussed in further detail infra, but the proposed "optional" berm system, consisting of two proposed berms down the length of the 450 foot side slope will have to be redesigned in order to serve the purpose of retarding side slope erosion. The cap or cover for the exterior side slopes of the landfill will consist of a relatively impermeable clay layer overlain by a sand layer, as well as a top soil layer. Mr. Lithman, an expert in geotechnical engineering testifying for the Applicant, established that as a result of the side slope stability analysis he conducted of the clay layer for the Class I disposal area, that the clay layer would be stable, with a safety factor of 2.9-3, which is more than adequate for a slope as designed for the Class I disposal area (3:1). Mr. Evander Peavy, testifying for the Petitioners and accepted as an expert witness in the fields of civil engineering, soil mechanics, surface water hydrology and hydraulics, agreed that there was an adequate safety factor in the clay cap layer itself and that no plane of failure would likely occur in that layer. The problem, however, lies in the sand layer immediately predetermined or potential plane of failure will occur at the interface between the sand layer and clay layer. This is where the side slope of the landfill is most likely to fail. Failure means that the weight of the sand and soil layers on the outside of the clay layer would exceed the resisting forces, holding them back on the slope of the landfill, which would result in a deformation, slumping or break in the sand layer. If this slumping or break occurs in the sand layer and is not immediately repaired, rain water can erode the clay layer, which is highly erodible if exposed to rainfall. If not redressed soon, this could result in exposure of the waste of the landfill to rain water with the result that leachate could seep out of the side slopes of the landfill and enter surface waters of the State through the functioning of the storm water system. The most likely layers a civil engineer would analyze to determine the stability of the side slope would be the sand and soil layers above the clay layer because they are the weaker layers in terms of adhesion, shearing and resistance to downward movement under stress. However, Mr. Lithman, Trail Ridge's expert who conducted a side-slope stability analysis, only analyzed failure in the clay layer initially, until he was called on rebuttal to address findings of Mr. Peavy. The DER rule provision that allows 3:1 ratio side slopes for the sides of such landfills only serves as a guideline or maximum steepness criteria for design engineers. It does not relieve an engineer from analyzing slope stability in accord with good engineering practices. Analyzing side slope stability must be done in terms of establishing "safety factors." An acceptable safety factor for a landfill is 1.5 because, if failure occurs, solid waste can quickly be uncovered which can cause leachate contamination to surface waters of the State. A safety factor of 1.5 is the commonly accepted factor for earthen dam design because of the risks posed by failure of such slopes or embankments. Mr. Peavy is extensively experienced in the design of earthen dams and similar earth works, including extensive analysis of slope constituents and design for stability under shear forces and other failure-inducing factors, as well as for resistance to erosive forces. He was engaged in such phases of engineering work for approximately 26 years, during which period he designed and oversaw construction of numerous dams, revetments and other earthen embankments and works of many types. Because of this, and because of the commonly accepted engineering methods and calculations he used in analyzing the stability and integrity of the side slopes of the landfill, involving plane of failure analysis and erosion damage analysis, his testimony is credited over that of the other witnesses testifying on the subject matters involving side slope integrity of the landfill. Because of this, a safety factor was established for the side slopes of the landfill, for the sand and soil layers of 1.5. Safety factors of 1.25 are indeed commonly used for highway embankments, but highway embankments are not designed with predetermined or potential planes of failure, such as is involved at this landfill (as presently designed) between the sand-soil layers and the clay layer. Trail Ridge's expert witness in this area, Mr. Lithman, had testified that a safety factor of 1.25 would be adequate because it was typical of DOT earthen embankments for roadways. Mr. Niehoff testified that a 1.3 safety factor was sufficient. In fact, however, Mr. Peavy, testifying for the Petitioners, calculated the safety factor of the side slopes of the landfill to actually be 0.85, using his initial assumption of a weight for a cubic foot of the sand-soil layer of approximately 100 pounds. Mr. Niehoff testifying for Trail Ridge found no basic fault with Mr. Peavy's analysis of the safety factor and alleged that his analysis was done with accepted engineering procedures, but only with use of slightly different assumptions. He testified that if he had used the same assumptions as Mr. Peavy, he would have reached the same conclusions. Mr. Peavy also calculated his safety factor again by employing the same equation used by Trail Ridge's expert, Mr. Lithman, and assumed instead that the unit of sand-soil layers was 125 pounds per cubic foot, as did Mr. Lithman. This assumption coupled with the internal angle of friction of 35 degrees used by Mr. Peavy, which was shown to be a conservative assumption, resulted in a calculated safety factor of 1.05, which is still unacceptable, even under Mr. Lithman's analysis, because Mr. Lithman opined that the safety factor should be 1.25. Using Mr. Peavy's equation, but his own assumptions as to angle of friction and weight per cubic foot of the sand-soil layer, Mr. Niehoff, testifying for the Applicant, calculated a safety factor of 1.3. This safety factor also is unacceptable because it is less than the 1.5 safety factor established as proper by Mr. Peavy's testimony and, indeed, if Mr. Lithman's safety factor of 1.25 could be deemed acceptable, the 1.3 figure would result only in a marginal safety factor at best. The major difference between the safety factor calculations of Mr. Peavy and Mr. Niehoff is that Mr. Peavy assumed that the sand-soil layer above the clay layer would be saturated, while Mr. Niehoff assumed that only 19 inches of the 24 inch sand-soil cover layer would be saturated by rainfall. However, Trail Ridge's own experts, Mr. Lithman and Mr. Niehoff, offered conflicting testimony between themselves on the amount of saturation to be expected. Like Mr. Peavy, Mr. Lithman did his analysis on the basis that the sand-soil layers would be saturated completely, contrary to Mr. Niehoff's subsequent testimony that this would not happen beyond a 19 inch depth in the layer. Mr. Niehoff's conclusions that the sand-soil layer would not become saturated or valid only if there is a complete grass cover over the entire side slopes of the landfill. He admitted that if the sand-soil layer became saturated, the safety factor would only be 1.1 or less according to his own calculations. Trail Ridge offered no preponderant evidence to establish that an adequate grass cover could be established so as to prevent saturation of the sand-soil layer during the design 25-year, 24-hour storm event (approximately 8- 9 inches rainfall in 24 hours). The evidence indicates, rather, that establishing and maintaining a grass cover on the side slopes of the landfill will be very difficult to achieve on a uniform, completely grassed basis. This is because of erosion and because of the damage by equipment necessary to repeatedly repair erosion damage and because of the fact that much of the side slopes of the landfill will be, in effect, under construction until the landfill is completely built out and completed at the end of approximately 20 years. Even if the lower several lifts of the landfill, when covered on the "cover as you go" basis can achieve them, more recently deposited, will not have a complete grass cover. Thus, there is a substantial likelihood of saturation of the sand-soil layer, during storm events of the type for which the landfill is designed. Further, the volume of water that would saturate into the sand-soil layer, even if the landfill was completely grassed, will still be sufficient to totally saturate the lower 90 feet of the landfill side slopes above the clay layer in the event of a 25-year, 24-hour storm event. If the sand-soil layers become saturated, sloughing or failure of those layers will occur at the toe of the landfill. If that occurs, then the clay layer, protective cap can be quickly eroded by subsequent rainfall and surface runoff. This will cause the waste within the landfill to be exposed to rainfall, generating leachate which can migrate to the surface of the landfill and thence to the storm water system and ultimately to the surface waters of the State. No provisions have been made in the design to remove water from the sand-soil layers once it reaches the area near the toe of the landfill to prevent sand-soil layer failure. The impermeability of the clay layer would prevent the rainfall from migrating through the clay layer and continuing to the interior bottom of the landfill to be collected properly as leachate because the clay layer properly should be an impermeable barrier to storm water. Thus, a saturated condition of the sand-soil layers would be most likely to cause their sloughing and failure near the toe of the landfill, with resulting damage by erosion or cracking to the clay layer with the effect of allowing leachate to escape to surface waters of the State. Although the Applicant's expert, Mr. Lithman, opined that side slope stability had not been a problem with the 3:1 ratio slopes at the City's Rosemary Hill Landfill, he admittedly was unaware of the height or length of the side slopes of that landfill. The longer the side slopes and the higher the landfill, the more likely it is that the sand-soil layers will become saturated and fail during design storm events or shortly thereafter, especially as the landfill, in its later years is built both longer and higher toward its final configuration. Further, Mr. Lithman and the Applicant's evidence does not reveal the composition of the side slopes of the Rosemary Hill Landfill, in terms of whether or not the clay and sand-soil layers designed in the proposed landfill are present. Due to the height of the proposed landfill, the lengths of its side slopes and the absence of design features such as terraces and benches, failure of the side slopes, especially in the later years of the landfill's life and, indeed, after closure (closed landfills can generate leachate) is likely to occur, based upon the facts established through Mr. Peavy's testimony. The likely side slope failure is a result of the design flaw and is not a problem which can be cured by normal operation and maintenance activities. Indeed those activities may aggravate the problem through their deleterious effect on the establishment of a uniform, complete grass cover. Because of the height of the proposed landfill, the length and slopes of its sides and the lack of design features such as benches or terraces, it is likely to experience significant side slope erosion due to storm water. The volume of rain water that would accumulate and flow down the sides of the landfill will achieve velocities which would destroy even a well established grass cover, especially in the later years of the landfill's life when the sides have reached significant length and height. Storm water would thus gain sufficient velocity to destroy a grass cover and to particularly attack those portions where the grass cover is incomplete, thinned or possessed of an insufficient root mat to hold the soil. Once erosion starts, small rills will form which will soon develop into deeper gullies, ultimately penetrating the sand-soil layer. It can then quickly erode away the resulting exposed clay cap layer, exposing the waste to storm water. Leachate could thus leak from the landfill. Because of the present design of the Class I landfill, the only way to repair erosion damage is to push material from the bottom with heavy machinery, such as bulldozers. These erosion maintenance activities themselves would prevent the establishment of a uniform solid grass cover. The presently operated East Landfill in Duval County exhibits both side slope failure and erosion damage due to rainfall on its 3:1 slopes, including damage to the grass cover. Erosion damage to the slope layers due to erosion maintenance activities of the type which would be necessary to repair damage at the proposed landfill has occurred. Both erosion and side slope failure will ultimately result in exposure of solid waste to rainfall runoff and assure side slope seepage of leachate. The material eroded or sloughed away from the side slopes can obstruct the drainage conveyance system surrounding the landfill, rendering the MSSW/storm water system inoperative. Because of the presently proposed design of the landfill, it would be impossible to effectively correct side slope erosion or failure, due especially to maintenance activities. Even if a uniform grass cover could be established in the last years of landfill operation and after closure, the great length and slope of sides of the landfill by that time would result in erosion even if the grass cover were initially uniform and solid on the entire slope of the landfill. A change in the design of the landfill, however, whereby 15 foot wide benches or terraces would be incorporated into the sides of the landfill every 20 or so vertical feet, would likely prevent the side slope erosion and failure established to be likely by Mr. Peavy. In fact, benches or terraces similar to those found to be required by Mr. Peavy have had to be recently installed at the East Landfill in Duval County in order to resolve side slope erosion and failure problems on those 3:1 slopes. The mere installation of interceptor berms, as depicted in TRL Exhibit 28, would not alleviate side slope failure and erosion problems, but rather would aggravate them and would reduce the safety factor of the side slopes to 0.5. Consequently, in order to grant the permit, it should be conditioned on the landfill being re-designed and constructed so as to incorporate benches or terraces at approximately 20 foot intervals on the slope of the landfill from bottom to top. Although this may potentially reduce the volume of space within the landfill, depending on how it is accomplished, it has been established that, without the use of the bench or terrace system, pollutant leachate cannot be reasonably assured to be prevented from entering State waters and wetlands. Leachate Control Leachate is any water coming in contact with solid waste. The chemical constituents of leachate which are present and will be present in the Duval County solid waste stream, to be disposed of at the proposed landfill, include chlorobenzene, volatile organics of various types, benzene, acetone, phenolic compounds, gasoline constituents, chloroform, methylethylketone, methylene chloride, toluene, xylene, ethylbenzene, total organic carbon, nitrogen, phosphorus and metals such as aluminum, chromium and zinc. Leachate thus contains toxic, hazardous and priority pollutants which will be disposed of in the landfill. The breakdown and degradation of solid waste can also generate additional toxic or hazardous compounds and substances. Leachate can potentially be discharged in a proposed landfill into groundwater and surface waters in a number of ways, including leakage from the bottom of the landfill liner into groundwaters, including into the Class I storm water pond and surface waters of the State through discharge from the groundwater into the storm water pond system. It could also be deposited into the storm water system through spillage of leachate where tanker trucks are loaded, through seepage of leachate through the side slopes of the proposed landfill by damage to the integrity of those side slopes as found above. The Petitioners maintain that side slope seepage of leachate will occur because the permeability of the intermediate cover layers surrounding the cells of the landfill is significantly less than the permeability of solid waste. This will have the result, according to Petitioners, that leachate will migrate horizontally through the intermediate cover layers to the sides of the landfill. Once there it arguably would migrate to the surface of the landfill side slopes through erosion of the outer cover, and fissures in the clay due to drying from exposure to the sun and through erosion. Additionally, the Petitioners maintain that leachate will migrate downward through the peripheral intermediate cover layer under the clay and contact the impermeable clay anchor cap, build up hydraulic head pressure and thus seep out through landfill sides near the toe of the landfill. The Petitioners maintain that Trail Ridge's policy and proposal to punch holes in the intermediate cover layers atop the cells of the landfill to encourage downward migration of leachate and discourage horizontal migration of leachate through the intermediate cover layers will be ineffective because the intermediate cover is more permeable than the solid waste itself so that punching holes in the intermediate cover to allow the leachate to migrate down through solid waste will actually not occur. Additionally the Petitioners contend that the filter system and the storm water pond will not treat the dissolved chemical components of the leachate specified in Petitioner's Exhibit 2 and that these dissolved components will move through the sand filters into waters of the State. Contrary to Petitioner's contentions, however, the Applicant has demonstrated that leachate will not avoid capture by the leachate collection system by seeping horizontally through the cover or cap and out the sides of the landfill, provided that the side slope failure and erosion prevention measures found to be necessary in the above Findings of Fact are instituted in the design, construction and operation of the landfill. The design of the cap and closure system is basically a side slope seepage prevention system, except for the absence of terraces or benches. The intermediate soil cover beneath the clay cap and surrounding each cell of the landfill acts as a drainage medium. It will channel any seepage of leachate from the cells of solid waste through the permeable, intermediate soil cover, generally in a downward direction, both in and between the cells of the landfill throughout its cross-section, as well as downward through the intermediate soil cover lining immediately beneath the clay cap around the periphery of the landfill. This system, if the above design deficiency is corrected, will tend to force the leachate downward into the collection system, as opposed to horizontally out the cover or the sides of the landfill. The reason this system will work in this manner is because the intermediate cover soil is more permeable than the solid waste itself. The permeability of the intermediate cover will promote vertical movement of the leachate because, as the leachate migrates across each cell, it will encounter the vertical, intermediate soil cover layer at the side of each cell and that will promote its moving downward toward the collection system. The water in the landfill will thus follow the path of least resistance, so that the vertical portions of the intermediate cover layers surrounding each cell and surrounding the sides of the landfill beneath the clay cap, coupled with the force of gravity, will provide a preferential path downward toward the leachate collection system. This finding includes consideration of the Petitioners' contention that leachate will migrate downward and contact the impermeable clay anchor cap and build up head pressure so that it will seep out of the sides at the toe of the landfill. The intermediate cover layer underlying the sides of the landfill beneath the clay anchor cap is connected with the leachate collection system underlying the bottom of the landfill. Thus, a continuous conduction of leachate down through the intermediate cover, permeable layer will allow the leachate to seep downward all the way to the leachate collection system rather than pooling behind the impermeable clay anchor cap. This condition will be enhanced by the fact that surrounding each cell is the approximately vertical, permeable intermediate cover layer, throughout the entire cross-section of the landfill, such that much of the leachate will migrate downward in the interior of the landfill. Because of the ready conductance of leachate in a downward direction by the intermediate cover layers, Trail Ridge's policy of punching holes in the intermediate cover layer on the top of each cell in order to seek to prevent side slope seepage of leachate will be ineffective because the intermediate cover is more permeable than the solid waste. Thus, this procedure is unnecessary and, in fact, could become counter-productive to the extent that punching holes in the intermediate cover would allow rain water mixed with leachate to contact more of the solid waste contents of the landfill as it migrates down through the interior of each solid waste cell. This would result in a more highly concentrated form of leachate, which could pose more deleterious threats to ground and surface waters should it escape to ground and surface waters. Therefore, any grant of the permit should be conditioned on a prohibition of the Applicant thus violating the integrity of the intermediate cover layer overlying each cell as the landfill is built up in lifts. Gas Control System The Class I disposal area is designed with a gas control system which will prevent explosions and fires caused by the accumulation of methane gas due to decomposition of the waste in the landfill. The gas control system will prevent damage to the vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will prevent objectionable odors off site. The Petitioners have stipulated that the Applicants' gas control system will be designed in accordance with Rule 17- 701.050(5)(j), Florida Administrative Code. Although the Petitioners presented testimony of various persons who live in close proximity to other landfills, which were at one time operated by Waste Management subsidiary companies, neither the persons who testified of odor problems at those landfills, nor other witnesses presented testimony to show whether any of the landfills utilized a gas control system or one of equivalent design to that proposed for the subject facility. No evidence was presented to support a finding that the proposed landfill facility would produce objectionable odors to any significant degree. The Petitioners have further stipulated that the Class III disposal area is exempt from the gas control system requirements set forth in Rule 17- 701.050(5)(i) and (j) and (6)(i), Florida Administrative Code, and the Department agrees. Hydrogeology and Ground Water Monitoring The Applicant filed as part of its application, and placed in evidence, a hydrogeological survey and groundwater monitoring plan, contained in TRL Exhibit 51. The hydrology of the proposed landfill site may fairly be characterized as complex because it contains many different features such as recharge and discharge areas, varying zones of conductivity, a sand component to the surficial aquifer as well as a rock aquifer component and multi-directional groundwater flows. Additionally, wetland systems occur down-gradient from the higher levels of the surficial aquifer on the north, east and south sides of the proposed Class I disposal area. From the surface grade down to a depth of approximately 100 feet lies the surficial aquifer, which primarily consists of a coarse sand medium. Lying below the sand aquifer is a confining unit (relatively impermeable) identified as the Hawthorn Group, which consists of denser marls, dolomites and silver clays. Beneath the Hawthorn layer, at a depth of approximately 300-400 feet, is the Floridan aquifer, which serves as the principal deep water supply source for this part of Florida. Additionally, immediately above the Hawthorn layer in the deep zone of the surficial aquifer, a "rock aquifer" exists under a portion of the landfill site, generally the eastern-most portion. It was not shown to be continuous throughout the site. The rock aquifer is connected to the sand surficial aquifer lying above it. Zones of varying higher and lower permeability occur at various places within the surficial aquifer. Generally, groundwater at the site flows down-gradient in an easterly direction, caused by rain or surface water recharging the surficial aquifer on the higher portions of Trail Ridge, including the western side of the landfill Class I disposal site. The surficial aquifer then discharges this groundwater to the land surface and the wetlands lying on the eastern side of the site. Additionally, some northward and southward flow of groundwater occurs from recharge areas to the wetlands lying on the northerly and southerly boundaries of the Class I disposal site in the wetlands. The specific condition 19 contained in the Department's Notice of Intent to issue permit and draft permit requires the Applicant to periodically (quarterly) sample monitoring wells to ensure that water quality standards are not exceeded at the boundary of a zone of discharge established by that specific condition and authorized by Rule 17-28.700(4)(a), Florida Administrative Code. A groundwater monitoring plan has been developed by the Applicant, with accompanying hydrogeological survey as mandated by Rule 17-28.700, Florida Administrative Code. The proposed groundwater monitoring system consists of 42 monitoring wells in and around the area of the proposed Class I and Class III landfill sites. The system is designed to monitor upgradient and downgradient flows in wells constructed to sample from the shallow and intermediate zone and from the deep zone (to some extent) on the east boundary of the Class I disposal site. Specific condition number 18 of the Notice of Intent to grant the permit and draft permit, to which the Applicant has agreed, requires that a detailed chemical characterization of a representative sample of leachate be performed, so as to allow for any necessary modifications to the list of chemical substances to be analyzed in water samples drawn from the monitoring wells on a quarterly basis. Although there are up-gradient monitoring wells for the shallow and intermediate portions of the surficial aquifer, there are no upgradient monitoring wells for the deep zone of the surficial aquifer. There are no upgradient monitoring wells on the west side of the landfill in the deep zone. The deep zone of the surficial aquifer is the zone between the intermediate zone and the top of the Hawthorn confining bed. The rock aquifer is present beneath the proposed landfill site and was encountered at well locations B-7, B-8, B-12 and B-14. That rock aquifer is hydrologically connected to and part of the deep zone, which is hydrogeologically connected throughout the site to the uppermost portions of the surficial aquifer lying beneath the landfill. The rock aquifer is a significant source of drinking water in Duval County and the surrounding northeast Florida area and is used as a supply source for domestic and commercial wells within one and one-half miles of the landfill Class I site. "Sinkers" are immiscible liquids contained in landfill leachate that are denser than water. When released from the landfill they would sink to the first low permeability unit in the surficial aquifer. This would be at the bottom of the surficial aquifer at the rock unit. Once they encountered a lower permeability unit or strata, sinkers would then move in a more lateral direction downgradient in undetermined directions. The silty clay layer depicted on Figure 9 of TRL Exhibit 51 would intercept those sinkers and cause them to tend to move in a direction toward the silty clay layer intercepted by well B-1. At that point the sinkers would then have a tendency to move in a north or south direction on top of the confining zone. The direction those sinkers would move, following a gradient, cannot be determined at present from the groundwater monitoring plan because no deep wells are proposed in either of those areas which could detect sinkers. The groundwater monitoring plan is thus not adequate for the deep zone or to detect pollutants that could migrate off site in the rock aquifer because there are no monitoring wells in the deep zone on the west, north and south sides of the Class I landfill area. Monitoring for sinker compounds in the deep zones is thus insufficient and water supply wells nearby in the deep zone would be at risk because there is no way to detect pollutants between those water supply wells and the source of the pollutants at the landfill. The groundwater monitoring plan is inadequate because there is insufficient information to determine the direction of water flow in the deep zone. Sufficient upgradient monitoring wells in the deep zone are necessary in order to determine the direction of water flow in the deep zone which will in turn indicate where additional deep zone monitoring wells should be located to detect contaminants migrating off site. Leachates also contain contaminant constituents or compounds called "floaters." Floaters are immiscible liquids which are lighter or less dense than water. They tend to float on top of the groundwater table. The hydrologic information depicted with the application and the Applicant's evidence is not sufficient to determine where floaters might migrate. The shallow monitoring wells referenced in TRL Exhibit 42 would not adequately detect floaters at or near the water table surface. Due to the lower lying stream or wetland systems on the north and south side of the Class I landfill on Trail Ridge, groundwater flows in the vicinity of those areas are likely moving northward and southward to some extent. Thus, TRL Exhibit 51, and particularly Figure 14 of that exhibit, is insufficient to support a determination of where monitoring wells should be located because it does not include the impact of the stream or wetland systems on the north and south sides of the landfill. Groundwater contours bend into the stream areas on the north and south sides of the landfill which would indicate groundwater flow to the south and the north instead of just from west to east. The general shape of these contour lines would resemble the contour lines depicted in Figure 16 of TRL Exhibit 51. These contour lines bend back to the east and the west on the north and south sides of the Class I landfill. Since there is groundwater flow to the north and to the south from the Class I landfill, intermediate and deep monitoring wells in addition to shallow wells, should be located along the west, north and south sides of the landfill. Because they are not in the groundwater monitoring plan thus far, the plan is inadequate. A grant of the permits should be conditioned on such additional wells being installed and made a part of the monitoring program, in accordance with the above findings. A zone of discharge for the proposed landfill has been established pursuant to Rule 17-28.700(4)(a)2., Florida Administrative Code, which is intended to extend vertically from the base of the surficial aquifer and horizontally 100 feet beyond the footprint of the landfill or to the compliance groundwater monitoring wells, whichever is less. (See pages 611- 618 of the transcript.) Therefore, even if the groundwater monitoring wells are closer than 100 feet to the footprint of the landfill, they are to be used for monitoring for compliance with applicable water quality standards, including the primary and secondary drinking water standards for G-II groundwater, as contained in Rules 17-550.310 and 17-550.320, Florida Administrative Code. The Applicant has agreed to this location of the wells, their spatial relationship to the footprint of the landfill, to the zone of discharge and to their use for compliance purposes. Storm Water and Surface Water Management System The Applicant proposes as part of its permit application a storm water discharge and surface water management system. The application for permitting for that system was submitted to the DER which reviewed it using the Water Management District's permitting criteria set forth in Chapters 40C-4 and 40C- 42, Florida Administrative Code. Pursuant to its independent permitting authority set forth in Section 373.413, Florida Statutes, the DER noticed its intent to issue the MSSW permit to the Applicant, based upon its opinion that the project will comply with applicable rules. The proposed storm water discharge/surface water management system (MSSW system) will utilize roadside swales, perimeter ditches, catch basins, culverts, detention ponds and pump stations to manage storm water in compliance with Chapters 17-25, 40C-4 and 40C-42, Florida Administrative Code. The solid waste disposal areas will operate as watersheds, routing storm water in to the MSSW system. The retention areas have been designed to handle the retention treatment requirements of a 25-year, 24-hour "design storm" runoff, resulting from approximately eight to nine inches of rainfall. The system is comprised of three independent parts; the Class I landfill system, the Class III landfill system and the separate roadway surface water management system. The Class I system will use temporary berms to intercept storm water runoff from the cap cover system of the landfill, on top of the solid waste disposal area. These top berms will divert the storm water runoff to regularly spaced pipes which will convey the storm water into the perimeter swale located at the foot of the landfill side slopes. The runoff will then be diverted through a culvert into a concrete-lined perimeter ditch which will convey it to the pond. The top berms of the landfill also operate as erosion control features, capturing and channelling some storm water runoff away from the side slopes of the landfill, thereby assisting in erosion control. The Class I retention pond covers an area of approximately ten acres and will contain approximately 43 million gallons of water at design water levels. The peak flow of storm water runoff from a design 25-year, 24-hour storm can be accumulated and released at predetermined rates. The runoff from the first one inch of rainfall in a 72 hour period is retained and stored in the pond. No discharge will be allowed to the pond's outfall system, rather all the outfall from the runoff from the first inch of rainfall will be routed through the sand filter system prior to discharge. When storm water runoff enters the pond, it will mix with the water already in the pond and become part of the total water column. When a rainfall event then produces greater than one inch of rainfall, some water will have to be discharged from the pond by passing it through the sand filter and then discharging through the outfall structure. The water discharged is water which was already resident in the pond before the rainfall event, mixed with the current rainfall runoff from that hypothetical rainfall event. The volume of the pond is so large that storm water runoff will constitute a very small fraction of the actual water volume in the pond at any given time. On the average, it will take 33 days for a given molecule of storm water runoff to travel through the pond, the sand filter and then be discharged through the outfall system. the sand filter system operates on a water level trigger device involving floats in wet wells attached to electrical switching mechanisms. When a certain water elevation in the wet wells, reflective of the elevation in the pond, is reached, the pumps automatically start and pump water into the filter chambers, causing the water to flow over a filtering sand. The filter will be maintained periodically by lowering of the water level to permit removal and replacement of the top six inches of sand in the filter. The Class III storm water pond is similar in design to the Class I pond except that it will not use a top berm. Rather, a perimeter swale will function similarly to the Class I landfill top berm, intercepting storm water runoff from the top and side slopes of the Class III landfill. The Class III storm water pond is equipped with the same type of filtration and pumping system as the Class I pond. The Class III system is designed also to retain the first inch of storm water runoff from a "design storm" rainfall in a 72 hour period. All of that runoff from the first inch of rainfall will likewise be routed through sand filtering prior to discharge. The roadway storm water system utilizes grassed roadside swales to act as a retention structure to filter the storm water runoff. The runoff retained in the swales will be conveyed by pipe to a smaller detention and dispersion pond located between the Class I and Class III disposal areas and built with the same design constraints as the Class I pond. The roadway system will not use a pumping system to operate, but rather discharge will occur through natural action of gravity through the dispersion pond. The filtered storm water runoff from the Class I and Class III disposal areas will be discharged into adjacent wetlands after it leaves the ponds. The discharge will be performed by a wetland irrigation system. The irrigation system will discharge the filtered storm water through conveyance pipes to the wetland boundaries. There a series of perforated pipes will extend outward from the conveyance pipes themselves and serve as a means of gradually releasing the filtered storm water into the wet land area as a means of wetland replenishment and mitigation. Concerning the issue of surface water quality, it has been established that the sand filtering systems on the Class I and Class III storm water ponds are capable of providing 100 percent of the treatment required by State water quality standards when considered in conjunction with the treatment capability of the ponds themselves as natural lake systems. The individual sand filters each provide twice the capacity for treatment necessary which equates to a safety factor of 2. With both filters operating, there is a combined safety factor of 4. Although the Class I and Class III retention ponds are designed with filtration systems, the primary pollution removal system will be the ponds themselves operating as natural lakes. Once storm water enters the ponds, the average residence time is adequate to allow the biological processes of uptake and assimilation to function to remove the bulk of the pollutants, including those derived from any spillage of leachate into the storm water management system and ultimately deposited into the ponds. The volatile organic compounds which can occur in the leachate can largely be removed simply by the process of evaporation, due to the adequate retention time of any leachate- containing storm water which reaches the ponds. It has been established that, due to the storm water pond's natural treatment mechanisms, especially the long retention time, the size and volume of the ponds, as well as the vegetated sides of the ponds, that, considering also the operation of the filter system, the water discharging from the Class I and Class III storm water treatment facility will have very low concentrations of total nitrogen, phosphorous, biochemical oxygen demand (BOD), suspended solids and heavy metals. The Applicant's expert witness on water quality and water chemistry, Dr. Harper, also assumed that the Class I retention pond would have some leachate migration into the pond through groundwater influx. Worst case scenarios were used to estimate this possible influx and the results established a maximum deposition of 2.46 gallons of leachate into the pond over a 65 day period. This amount would be diluted by a factor of 14 million solely by new storm water runoff and rain normally expected under average rainfall conditions during such a 65 day period, without even considering the considerable dilution by the existing water volume of approximately 43 million gallons already in the pond in such a period. Dr. Harper's testimony is accepted. It is unlikely that any runoff can enter the retention pond on one day and then exit within one day's time through the outfall overflow device. Even assuming that runoff occurs in excess of the designed one inch, that runoff would dilute with the large volume of water already present in the storm water pond. Thus, the new storm water would be mixed, diluted and subject to natural biological processes and the process of evaporation (of volatile organic compounds), operative in the pond before it can be released through the outfall structure. The runoff will enter the pond at the west end and discharge through the opposite or east end of the pond. The majority of water caused to be discharged through the outfall because of a larger-than-design storm event runoff would thus actually be water already present in the pond as opposed to incoming runoff from the recent rain event being deposited in the west end of the pond where the storm water system discharges from the Class I disposal area. Even a rainfall event producing twice the designed-for volume would produce no effect on the water quality of the discharge. Further, along with the filter systems and the natural processes of biological uptake, assimilation as well as evaporation in the natural lake system which would operate in the pond, the side slopes of both ponds will be vegetated so as to further assist in uptake and removal of any pollutants present in the runoff, further mitigating any potential for water quality impacts. It has been established that the surface water management system is designed to segregate surface water from leachate by minimizing the size of the landfill working face and reducing the potential for storm water to contact waste and become leachate. Further, a berm will be constructed around each working face which will encompass the entire active cell of the landfill, causing any runoff water entering the working face to remain there and percolate through the landfill to the leachate collection system, rather than entering the storm water system. If a severe rainfall event could cause leachate to overflow those berms, the design includes additional berms on the interior slopes of the landfill to catch that overflow and divert it back through the leachate collection system. The berms are relocated as the working face of the landfill changes, so they will continue to fulfill these functions on an ongoing basis. In terms of a worst case event, the Applicant has also established that the estimated impact of runoff from approximately one acre of exposed solid waste entering the retention pond would still cause no water quality impacts. Further assurance of leachate segregation from surface waters is provided in a spillage control plan which would be activated in the event of leachate spillage from a tanker truck. In connection with this, any grant of the permit should be conditioned upon an adequate berm system surrounding the tank truck leachate filling device in order to contain any such spill to prevent the leachate from entering the storm water retention facilities and surface waters. Such a system should also be characterized by (and the permit conditioned upon) retention berms or other forms of containment being placed around each leachate storage tank, designed to retain the full capacity of such a leachate storage tank in the event of a catastrophic tank valve, piping or other failure. It has been demonstrated, moreover, that if the leachate-storm water separation and control system were to fail in some way so that leachate directly entered the retention pond, the volume of leachate entering the pond would have to exceed approximately 150,000 gallons to cause any water quality violation in the storm water retention pond, even assuming the high concentration of contaminants in the leachate envisioned in the opinion of Dr. Robert Livingston, the Petitioners' aquatic ecologist and toxicologist. He raised concerns that pollution of the head water systems of the St. Johns and St. Mary's Rivers might result from the operation of the project. The Applicant has rebutted the concerns expressed by Dr. Livingston and Dr. Parks and established reasonable assurances that toxins and contaminants occurring in leachate will not deposit in surface waters of the State in any significant or rule-violative amounts for the reasons expressed in the above Findings of Fact. Draw-Down Effects The Petitioners contend that there will be a draw-down of groundwater levels in surrounding wetlands caused by these storm water ponds and associated pumping, in violation of the Water Management District's rules and policy embodied in MSSW Handbook Section 10.6.3. This section presumes an adverse impact on wetlands will result if the system causes the groundwater table to be lowered more than five feet lower than the average dry season low water table. The Petitioners' expert in this area, Dr. Motz, estimated that a measurable draw-down of groundwater of one to two feet in the wetlands water table would extend outward as far as maybe 1,000 feet in all directions from each of the storm water ponds. Dr. Motz used a large error convergence factor in his calculations, however, and also used a model for a confined aquifer, which was not shown to exist at the subject site. He did not use a model which should be appropriate for unconfined or semiconfined aquifers which the evidence reveals is the more appropriate hydrogeology which would be employed in groundwater modeling for the subject site. Dr. Motz' use of a large error convergence factor can potentially result in an answer which is far from the actual appropriate draw-down figure. Numerical models are approximations of reality and the smaller the error convergence factor, then the closer to the real number of the cone of depression, or draw-down level, the model will give. Consequently, the use of an analytical groundwater, cone of depression model was shown by the Applicants' witnesses to give a more accurate result, especially in view of the large error convergence factor employed by Dr. Motz in his numerical model. It was not shown that Dr. Motz had actually "calibrated" the groundwater model he employed. The Applicants' hydrogeology expert, Don Miller, used three analytical and two empirical methods to determine radius of influence or draw-down from the storm water ponds and calibrated the models he used. Validating the data or calibrating the model is a way of making sure the model actually represents the situation intended. Calibration is performed in this instance by inputting some data and then seeing if the model itself could accurately predict the remainder of the data of interest. Using these various methods, Dr. Miller arrived at a range of radius of influence likely to occur from the Class I storm water pond of 167 feet to 184 feet at the western end of the pond and approximately 40 feet at the eastern end. The maximum radius of influence for the Class III storm water pond was shown to be approximately 160 feet at the western end and 0 at the northeastern corner. The other hydrogeology expert for the Applicant, Dr. Leve, performed a separate analytical analysis of draw-down using the Southwest Florida Water Management District's "KOCH" model to produce a projected radius of influence of approximately 167 feet, which is comparable to the projections of Dr. Miller. In conjunction with this, it was shown that Dr. Motz' use of a small value for groundwater infiltration and the large error convergence factor served to increase his predicted radius of influence in an inaccurate way. Dr. Motz also used a higher value for transmissivity or hydraulic conductivity ("K"). The Applicant's experts relied on the average of the actual permeability test results obtained for the site. A different figure for transmissivity or hydraulic conductivity results from Dr. Motz taking into account two test wells in which hydraulic conductivity could not be measured because the well water level rose too quickly to obtain a measurement. Consequently, he predicted or assumed that that factor might affect the hydraulic conductivity at the site by a whole order of magnitude, which resulted in his 1,000 foot prediction for draw-down cone of influence. The problem here is that the evidence does not demonstrate clearly that this much- greater hydraulic conductivity factor with regard to these two wells, which was an isolated incident compared to all other wells tested, is not some mechanical or human error in the installation or evaluation of the wells. Further, even if one predicts the hydraulic conductivity of the unmeasured, apparently highly conductive wells at the geometric mean of all the hydraulic conductivity measurements for the water table zone (except for the marl zone) at 3.0 X 10 cm/sec or three times greater than the value used by the Applicant, it would result in a cone of influence of 265 feet instead of 184 feet. If one also assumed a value for the two ignored wells, as data points, by assuming that they had a hydraulic conductivity value of 3.5 x 10/-3 cm/sec, the highest reported well conductivity value, and then employed that in the empirical formula used by Donald Miller, it would still not greatly exceed the 265 foot cone of depression number. No evidence was adduced to demonstrate that a cone of depression of that magnitude would have any adverse affect on the wetlands, especially in view of the recharging of the wetlands through the storm water pumping and irrigation system. In summary, the totality of the evidence in the Applicant's case, especially on rebuttal, demonstrates that Dr. Motz' methodology significantly overestimated the radius of influence for draw-down at both storm water ponds. The parties agree that the maximum draw-down of 16 feet would occur within the Class I storm water pond, where a "seepage face" would be formed where the pond would cut into the water table through earth borrowing activities. The maximum draw-down inside the Class III storm water pond, where a seepage face would be formed by the excavation into the water table to construct the pond, will be 14 feet. The lowered groundwater within the storm water ponds is due in part to the natural sloping land surface of that area and the concurrent natural slope of the water level before the ponds are even excavated. The slope of draw-down will decrease rapidly, that is, much of the 14 foot or 16 foot apparent draw-down amount will be the result of the relatively sheer seepage face formed by the pond excavation. At the top of that seepage face, the groundwater cone of depression will flatten out considerably and very rapidly so that, as the slope of the draw-down decreases rapidly in the immediate vicinity of the pond, the groundwater outside the ponds themselves will actually be lowered less than five feet. The groundwater levels used in the application were based upon seasonal high water level for the site, rather than "average dry season low" water levels, as referenced in Section 10.6.3 of the Water Management District's Applicant's handbook. Therefore, the projected draw-downs are very conservative and would overestimate the actual draw-down for dry season low water table groundwater levels. Consequently, the weight of the evidence supports the Applicant's predictions on the effects of draw-down. The evidence demonstrates that draw-down from the storm water ponds associated with both landfills will have either no impact or minimal impact on wetland species, either transitional or submerged, in the surrounding wetlands. Silvi-culture activities on the site have considerably altered the area and lowered the natural water table through the construction of drainage structures by the timber company in the past. In general, the wetland jurisdictional lines from the storm water ponds are based on United States Army Corps of Engineers (Corps) wetland criteria and thus do not contain species generally considered to be wetland species for purposes of DER dredge and fill or Water Management District MSSW jurisdictional purposes. Many species used by the Corps in determining jurisdiction, such as slash pine, can grow both in uplands or wetlands. The edges of the areas delineated as jurisdictional wetlands are dominated by transitional and upland plant species such as slash pine, gallberry, palmetto, grapevine and huckleberry, which can tolerate dry conditions. It is only as one's investigation proceeds waterward or toward the center of the delineated wetlands, (in which area the land surface slopes down- gradient at the same area where the draw-down cone of influence rapidly diminishes to an insignificant level), that the plant species change to those species adapted to regular and periodic inundation for purposes of the State agencies' wetlands jurisdiction. The draw-down maximum for any wetland location using the maximum projected radius from Dr. Miller's efforts of 184 feet, (17 feet beyond the projection based upon the Water Management District's model), is on the southwest edge of the Class I pond. Maximum draw-down there will be 24' inches at the wetland boundary line, that is, the Corps jurisdictional boundary line where the dominant plant species are transitional or upland plants such as slash pine, gallberry and bay trees. Pine trees at this point exhibit tall and vigorous growth which indicates that the water table, before installation of the ponds, is already well below the surface, otherwise these upland trees would lack sufficient oxygen to grow if water levels were closer to the surface. The potential draw-down here would thus have little effect on this vegetation. There will be essentially no draw-down effect further down-gradient beyond the DER Water Management District jurisdictional boundary, where the pines are already of diminished stature because of water existing close to the land's surface and where DER wetland jurisdictionally-listed plants predominate. The draw-down at the wetland boundary line on the southeastern part of the Class I pond will be 9 2/3 inches. Wetland species which could be affected are found 50-60 feet beyond that radius of influence at this point. The radius of influence on the northern side of the Class I pond will not cross any wetland boundary until it widens at the northwestern corner. The maximum draw-down at the wet land line near the northwestern corner of the pond would be approximately 15 1/2 inches. Here again the predominant plant species are the upland species of slash pine and gallberry and thus the draw-down will have little effect on those species for reasons mentioned above. On the western edge of the Class III pond is an isolated wetland for purposes of the Water Management District MSSW and Corps jurisdiction only. The edge of that wetland is dominated by slash pine and gallberry. The estimated draw-down on the boundary line of that land in the area dominated by slash pine and gallberry is six inches. There will be no draw-down from that Class III borrow pond area in any wetland dominated by transitional or submerged species. In addition to the above considerations and factual findings concerning the effect of the draw-down, the Applicant is proposing an irrigation systems as delineated above, which will deliver water to the wetlands to mitigate and replenish any minimal impacts of groundwater draw-down. The irrigation system will increase the degree and duration of saturation of the soils at the wetlands' boundary. This will mitigate any minimal effect of draw- down and may actually have the effect of enhancing the health and quality of the wetlands over time, from the wetlands' boundary waterward. In order that the irrigation system will pose the maximum benefit and most closely imitate the natural systems, the irrigation system will be designed for flexible operation. A wetlands ecologist will review the wetlands quarterly and adjust the irrigation system as necessary, as to location and operational regime, in order to properly maintain the health, including water levels and hydro-periods in the wetlands. The Applicant has agreed that the grant of the permit be conditioned to allow for this ongoing quarterly investigation and adjustment. Dr. Motz indicated in his testimony his belief that, to a large extent, the water pumped to the wetlands through the irrigation system would simply immediately migrate to the groundwater and immediately back to the storm water pond, through the effects of the draw-down, and not serve the purpose of replenishing the wetlands. He admitted, however, that he did not know whether the proposed irrigation system would work or not. The Applicant's expert witness in this regard, Dr. Leve, established that the irrigation system would effectively distribute water into the wetlands and saturate the surface due to the "mound effect" of water at the irrigation systems' discharge point at the wetland boundary. He used a standard, generally-accepted "mounding model" to predict the effects of the mounding for the irrigation system. Mounding is a hydrogeological phenomenon whereby water will mound up and create a zone of saturation in the soil at the point of discharge to the ground surface. Mr. Leve ran that model for a cross-section of each of the storm water pumps. He also ran the model for two different values of groundwater inputs into the ponds. A figure of 28,800 gallons of groundwater infiltration into the pond per day, as predicted by the Applicant's expert witnesses, and the 100,000 gallon per day groundwater input predicted by Dr. Motz was used. For both cross- section locations examined by Dr. Leve, the discharge of 28,000 gallons per day at the wetland boundary would raise groundwater levels by approximately three inches. The discharge of 100,000 gallons per day at the same locations through the irrigation system would increase water levels by approximately nine inches. These calculations ware based upon the discharge of the groundwater inputs into the storm water pond only. Discharge additionally of the inputs from storm water runoff from the surface of the landfill into the pond and then through the irrigation system would also be delivered into the wetlands as warranted. Additionally, a berm system will prevent surface water runoff from entering the north dirt borrow area. A berm will be constructed at the eastern boundary of the north borrow area to maintain an interior water elevation of 125 feet or one foot above the natural ground, whichever is higher. Water levels will thus be maintained at the north borrow area so that there will be no lowering or de-watering of the groundwater table. Additionally, storm water will be diverted by berms along the west end of both the Class I and Class III landfills upgradient and into the wetlands, so that the adjoining wetlands receive significant surface water recharge that previously did not flow into those wetlands. Mitigation A mitigation plan was proposed for purposes of both the dredge and fill permit application and, in the solid waste landfill application, for the MSSW permitting. It was incorporated into the draft dredge and fill permit and draft landfill permit incorporated in the Department's Notice of Intent to issue. The mitigation plan and other measures will offset the impacts from filling and other activities caused by the project in both the dredge and fill and MSSW jurisdictional wetlands on the site. The proposed mitigation measures include the creation of 4.76 acres of new wetlands; the irrigation of the wetlands surrounding the Class I and Class III storm water ponds, as delineated above, and the diversion of surface water around the landfills into the wetlands to aid in their recharge. A high quality, forested wetland will be created utilizing the reliable method of mulching and, an extensive hardwood planting program which will include red maple, sweetgum, cypress and tupelo trees. The created wetland will contain deep water and transitional zones. The area will be monitored to insure 80 percent survival of the trees planted and routine maintenance will be performed. Approval of this mitigation plan and any issuance of the permits should include the requirement that rapid replanting be done to replace any dead trees and such approval should also be conditioned on the use of the largest trees possible to be planted, by appropriate tree planting equipment, so that the beneficial uptake and filtering functions, as well as wildlife habitat functions of such hardwood wetlands can begin operating as a mitigatory factor as soon as possible. The created wetland area will replace lost wetlands with a wetland type of higher quality and potentially higher habitat function, depending upon the maturity of the trees planted (see above condition). The wetland replacement ratio attendant to the creation of this wetland area is proposed to be 2.8:1 and the permit should be conditioned on at least that ratio being observed in the mitigation wetland installation plan. Although there was some testimony critical of the wetland creation proposal because it would alter 4.76 acres of uplands which might be of significance to the wildlife in the area, in fact the site of the mitigation area is currently pine plantation which has been greatly altered from its natural state. It does not currently provide high quality upland wildlife habitat. Additionally, only 30-40 percent of the uplands on the entire tract will be altered by the entire project construction proposed. This leaves a majority of the uplands presently on the site in their current condition to the extent that it serves as wildlife habitat at the present time. A conversion of the subject area into a high quality hardwood forest wetland, which would remain bordered by upland on one side in any event, will not have any significant impact on the present value of the mitigation areas as habitat. Wetlands Assessment and Impacts Through the use of consultant personnel skilled in the fields of surveying, biology and botany, the Applicant established jurisdictional lines demarcating the boundaries of DER jurisdiction for dredge and fill permitting purposes and MSSW permitting purposes in the field and adduced evidence of those boundaries at the hearing. The jurisdictional lines established were conservative in the sense that they reflect the jurisdictional standards of the U.S. Army Corps of Engineers, which is generally landward of the lines which would be established by the plant communities characteristic of DER dredge and fill and Water Management District MSSW jurisdiction. The locations of the flags as placed by the biology-botany consultant were then professionally surveyed and plotted by a trained surveyor such that the jurisdictional line was signed and sealed as a "specific purpose of survey." Further, a biologist met with the surveyors weekly to review the plotted line to ensure accuracy. That survey was submitted to the Department in connection with the applications herein. The Department supports that jurisdictional determination in this proceeding. The Department's own jurisdictional determination staff members were on the sites of the jurisdictional determinations for approximately eight days. The location of the wetland jurisdictional line for purposes of MSSW permitting has not been challenged by Petitioners, and no evidence regarding MSSW jurisdiction has been presented by Petitioners in this proceeding. The wetlands jurisdictional survey prepared by the Petitioners, however, showed "new" DER jurisdictional wetlands which would represent, if accepted, an alteration of the DER jurisdictional wetland boundary. Additionally, the challenge to the DER. jurisdictional determination is restricted by the Petitioners to the area around the Class I landfill footprint and its associated storm water pond. No evidence has been presented regarding the jurisdictional determination for the remainder of the site and project, including the access road. Witness Don Garlic has a degree in marine biology with additional coursework and training in the field of botany, including field training in wetland species. He visited the site for seven days for the purpose of critiquing the dredge and fill DER jurisdictional line established by the Applicant and offered as proof by the Applicant in this proceeding. In the 2-3 mile segment of the jurisdictional line around the Class I landfill and associated storm water pond, Mr. Garlick opined that there were three gaps 18-20 feet wide where he did not agree with the dredge and fill jurisdictional line determination. These areas represented by the gaps, if the gaps were determined to be jurisdictional, would add rather long, linear features of putative wetlands to the jurisdictional wetlands already encompassed by the proposed Class I portion of the project. They would add approximately 1/2 acre of additional DER jurisdictional wetlands impacted by the project. The Petitioners, however, did not establish the duration of water flow at any of the areas in which dredge and fill jurisdiction was contested. Mr. Garlick stated that water was flowing each of the seven days he was on the site, from March 28 to May 8, 1991, but stated that it was raining when he was there on April 23. He did not review rainfall data to determine whether it had rained prior to any of his visits. Likewise, he was not shown to have reviewed any groundwater data or to have performed any tests to ascertain groundwater levels in relation to claiming jurisdiction over the disputed Areas A, B, C and D depicted on Petitioners' Exhibit 8. This site has not experienced a prolonged drought. For the period 1988 through the hearing, only the latter portion of 1990 reflected a significant lack of rainfall based on rainfall data obtained from the National Oceanic and Atmospheric Administration Office (NOAA) at the U.S. Navy's nearby Cecil Field, as well as the Jacksonville International Airport. Nineteen eighty-eight, in fact, had above-average rainfall of 61 inches. The Class I landfill area was originally "flagged" in September and early October 1989. July, August and September 1989 were months of above average rainfall. September 1989 had 14 inches of rain, twice the normal rainfall. Nineteen ninety had slightly less than half of its average rainfall for the year, although it started out with normal rainfall and became dry in the fall months. There has since been twice the normal rainfall for the few months of 1991 prior to the hearing. A drought of the type and duration experienced in the latter part of 1990 would have had no significant effect on the plants at the sites in question (sites A, B, C and D). They are perennial plants that remain year-round and therefore are adapted to drought and flood conditions. (T-2047) 1/ The Applicant's jurisdictional determination based upon dominant plant species, established by its consultant in evidence was based upon perennial plant species. Therefore, the hydrological conditions on the site were normal ones when these areas were originally reviewed in 1989 and the jurisdictional delineations established and the conditions found at the site shortly prior to the hearing in March through early May 1991 by Mr. Garlick were unusually wet conditions and do not reflect the normal conditions prevailing at the site. Mr. Byron Peacock was accepted as an expert in wetlands ecology and botany with a B.S. degree in each of those disciplines, with emphasis on Florida wetland species, especially with regard to Florida fresh water wetlands. Mr. Peacock is quite familiar with the site, having been to the site "dozens of times" since September 1989, almost every month for a 21-month period. Mr. Godley, another of Applicant's expert witnesses, also visited the areas put into contention by Mr. Garlick in his testimony for purposes of testifying in rebuttal and also concluded that these areas were not jurisdictional for purposes of the DER's dredge and fill jurisdiction. Mr. Mike Eaton of DER visited at least one of the areas or sites in contention and was of the same opinion. Mr. Garlick had relied on flowing water being present and the plants present to determine that Area A, a ditch along Hells Bay Road, was a jurisdictional wetland area. The areas on both sides are upland. Mr. Garlick testified that there were breaks in the vegetation in Area A and that the vegetation was sufficient to establish a connection. Area A does not contain sufficient water to support a dominance of listed wetland species under either the "a or b tests," as provided in Rule 17-301.400(1)(a) and (b), Florida Administrative Code. There is upland vegetation growing all the way across the ditch on both sides at its connecting point and point of discharge to dredge and fill wetlands. If the ditch held water it would be wettest at this point of discharge into the jurisdictional wetlands, but the ditch does not contain water on a regular and periodic basis, as established by the testimony of Mr. Peacock. Therefore, the water observed in the ditch by Mr. Garlick would have been surface water runoff from the recent high rainfall. Concerning Area B in the Class I storm water pond footprint, Mr. Garlick indicated that he relied on herbaceous wetland plants as a basis for his finding of that as a jurisdictional area. He used the "b test" vegetation method of at least 80 percent transitional plants, less than 10 percent submerged or upland species, as well as the presence of "other indicators" of regular and periodic inundation for that Area B for purposes of the rule cited last above. Area B is a logging road and lies between upland stands of planted pines. It has been used as a road within the past year and there are "rutted- out" or gouged areas in the road caused by vehicular traffic which have puddled water, but between the puddles are areas dominated by upland vegetation. There is also a clear vegetative break in jurisdiction at the point where Area B connects to the jurisdictional line at Area B's southern end. The vegetation at that connecting point is a mixture of red. root, a transitional plant and many upland species, the dominant one being amphicarpum muhlenbergianum, which looks similar to red root in the field. Mr. Garlick testified that red root was the predominant plant in Area B. Mr. Garlick may have mistaken amphicarpum muhlenberqianum for red root. He was not familiar with that upland species and did not know if it was found at the site. A review of photographs from the 1950s, 1960s, 1970s and 1980s showed that Area B had historically always been uplands. The evidence shows that this area holds water only in limited areas following rainfall and that there is no hydrological, "a or b test" vegetative connection between these areas and jurisdictional waters of the State. Area C, located on the west side of the present West Fiftone Road, also contains part of an old road bed, as well as a ditch. Area C was determined to be within MSSW jurisdiction by the Applicant, but was also claimed as a dredge and fill jurisdictional area by Mr. Garlick for the Petitioner. Mr. Garlick indicated in his testimony that plants in Area C were mixed transitional and submerged species, but were sufficient to make out the area as within DER jurisdiction, based upon those plants. He also testified that different parts of Area C met the "a test" or the "b test." The ditch on the eastern side of Area C is dominated by upland vegetation, including amphicarpum grass, slash pine and goldenrod. The slash pines growing in the ditch, as shown by a photograph in evidence, were several years old. This ditch was dry on all of Mr. Peacock's visits to the site except recently during heavy rains. The remainder of Area C is characterized by a canopy of slash pines, a subcanopy of titi shrub of an upland type, with less than ten percent of the vegetation being characterized by bay and tupelos. There is a ground cover over most of that area consisting of upland species such as chokeberry, gallberry and reindeer moss. This area was determined to be jurisdictional for MSSW purposes because of a wet area in the middle containing fetter bush and sweet gallberry, which are both transitional species for jurisdictional purposes. The entire Area C was delineated as MSSW in the permit application, even though it may not all be jurisdictional, simply for ease of delineation and survey. The MSSW wetland areas within Area C, however, have no vegetative or hydrologic connection to the dredge and fill jurisdictional wetlands. Area C thus does not contain sufficient water or vegetation under either the A or B test connected with other jurisdictional areas to be considered jurisdictional for purposes of the DER's dredge and fill jurisdiction. Area D consists of a rutted trail-road used on a regular basis by persons visiting the tract. There is an upland pine plantation on either side of the roadway. Mr. Garlick contended there was a "flow way" in Area D, but that the vegetation was spotty or sporadic. During the past 21 months, Area D was dry every time Mr. Peacock was on the site, except recently after prolonged, heavy rains. At the eastern end of Area D near its connection to Area C, there is a patch of upland amphicarpum grass, growing all the way across the ditch and road. There is also the presence of beak rush, an upland plant which looks similar to submerged rush. There is insufficient water or wetland vegetation under either the a or b test to establish that this Area D is jurisdictional. The evidence thus did not support the Petitioner's contention that additional dredge and fill wetlands would be impacted by the project. The areas claimed by the Petitioners as additional jurisdictional wetlands did not contain sufficient water to be determined jurisdictional, pursuant to DER Rule 17-301, Florida Administrative Code. These areas held water only at certain times of the year in direct response to heavy or frequent rainfall and were normally influenced, that is, fed, by surface water rather than groundwater. Likewise, these areas did not contain sufficient plant species in the canopy, subcanopy or ground cover to be considered jurisdictional pursuant to vegetation indices and procedures delineated in Rule 17- 301.400(1)(a) or (b), Florida Administrative Code. Mr. Mike Eaton of DER testified and established a 1990 DER policy embodied in a memorandum admitted into evidence explaining how the Department employs the above-cited rule for purposes of using hydric soils in making dredge and fill jurisdictional determinations. Both Mr. Eaton and the DER policy in evidence established that hydric soils are not used by the Department except as an indicator of regular and periodic inundation once "b test" vegetation has been determined to be present for purposes of the above rule. Mr. Garlick testified that he used hydric soils as a "back up" to jurisdictional determinations based upon hydrology and plants. He did not identify any area where his jurisdictional determination was based on soils alone. The Department policy memorandum in evidence emphasizes the importance, in jurisdictional determinations with hydric soils as an aid, of not merely determining whether the soil in question is hydric, but also of investigating the specific characteristics of the soil profile, which the Department maintains must be performed by a soils scientist. Mr. Carlisle, a soil scientist, visited the site and took samples of the areas indicated by Mr. Garlick. These locations were located in an approximate fashion by Mr. Garlick on Petitioner's Exhibit 8 at the hearing. Thirty-four of the 35 samples taken were determined to be hydiric by Dr. Carlisle. There are, however, breaks of up to approximately 525 feet between the hydric soils test findings in Areas A, B and D and yet the distance between one hydric and non-hydric soil test finding was shown to be approximately 50 feet. No soil samples were taken by Dr. Carlisle in Area C. These samples are found to provide an insufficient basis for determining the presence of hydric soils throughout Areas A-D. Additionally, Areas A-D did not contain areas of "b test" vegetation contiguous to other jurisdictional areas. Therefore, even if hydric soils had been present throughout these areas, these soils standing alone, without supporting "b test" vegetation, are insufficient to establish jurisdiction in the areas maintained to be so by Mr. Garlick. General Wetland Impacts This project will impact wetlands subject to the DER jurisdiction and which are jurisdictional for MSSW purposes under Chapter 40C-4, Florida Administrative Code, the rules of the St. Johns River Water Management District. Thus, a dredge and fill permit is required pursuant to Section 403.91 et seq., Florida Statutes, and DER Rule 17-312, Florida Administrative Code. Areas subject to DER dredge and fill jurisdiction and MSSW permitting jurisdiction are considered pursuant to DER Rules 17- 301 and 40C-4, Florida Administrative Code. The 1,288 acre site contains approximately 550 acres of wetland, much of which contains planted pines as well as some naturally occurring pines, as well as hardwood swamp, cypress and gum swamp, seepage slope, ditches and swales. Virtually all of the wetlands have been adversely affected in some way by the forestry practices which have occurred and are still occurring on the site. Most of the sloughs and natural flow-ways have been channelized. Ditching has drained the adjacent wetlands and significantly altered the hydrology of the entire wetland system on the site. The wetland known as Hells Bay Swamp, immediately east of the landfills, is currently being clear cut by the Gilman Paper Company. The 550 acres of wetlands are jurisdictional for either dredge and fill or MSSW purposes or both. Some 3.17 acres of MSSW wetlands will be impacted by project construction; 1.61 acres of these are also dredge and fill wetlands. The 1.61 acres of the impacted dredge and fill and MSSW wetlands consist of roadside ditches along the Hells Bay Road and a road on the north side of the Class I landfill. These roads are currently subject to logging traffic, which decreases the usage of the roadways and ditches by wildlife. Consequently, the master of species present and using these ditches is limited. In addition to the 1.61 acres of ditches, the impacted MSSW wetlands also include 0.16 acres of wetland ditches along the entrance road in proximity to dredge and fill wetlands, a 0.80 acre isolated cypress head wetland located within the footprint of the Class I landfill and a 0.60 acre wetland located along West Fiftone Road extending into the south border of the Class I landfill footprint. The 0.80 acre cypress head has already been impacted by a logging road or fire break, and ditches have been constructed through the interior of it. The larger cypresses have been logged, and the remaining vegetation is sparse, rendering it of little quality as habitat for fish and wildlife. The 0.60 acre wetland extending into the south border of the Class I landfill is an old road bed with evidence of ruts from vehicular traffic depicted on photographs in evidence. This area has a slash pine canopy and is dominated by titi shrubs, with a few black gum and traditional wetland plant species such as fetter bush and gallberry in disconnected areas. It is a low quality wetland of scant value as habitat for fish or wildlife. Prior to and during construction, as a condition on a grant of the permits, all wetlands on the site will be protected from erosion, siltation, scouring or excessive deposition of turbidity, de-watering or other construction and operationally-related impacts by the installation and use of siltation barriers placed at wetland boundaries. Because of the significant possibility of the impacts mentioned above, especially siltation and turbidity, to the wetlands during the construction phase of the facilities and attendant to ultimate operation of the landfill itself, grant of the permit should be conditioned on acceptance of monthly inspections by DER enforcement personnel once construction has begun. Wildlife and Archaeological Resource Impacts Wildlife surveys were conducted by expert witness Isaac Rhodes Robinson and members of his staff, as well as by Biological Research Associates, Inc. in the months preceding the hearing. Mr. Robinson and the biologists on his staff spent approximately 1,000 man hours surveying the site, and Mr. Robinson, accepted as an expert in wildlife ecology and wetland ecology, testified on behalf of the Applicant in this proceeding. Assessments of the site were performed by reviewing relevant literature as well as conducting field surveys for both upland and wetland species. No evidence was found of any threatened or endangered species on the site. Mr. Robinson and his staff conducted surveys in 1990 and in early 1991 and biologists from Mr. Robinson's staff were present on the site at various times from September 1989 through the time of the hearing. Surveys performed by Mr. Robinson and his personnel were conducted in accordance with Florida Game and Fresh Water Fish Commission (FGFWFC) guidelines and exceeded that agency's guidelines by surveying 100 percent of the upland areas. No testimony of any witness in this proceeding indicated any physical evidence of use of the site by any endangered or threatened species. Wildlife surveys revealed a shall colony of gopher tortoises, listed as a species of special concern by the FGFWFC in a marginal habitat zone on the extreme western boundary of the Class I disposal area. The colony consists of less than ten individuals and there will not be a significant impact to the tortoises because the individuals will be trapped and relocated to a more suitable habitat on another area of he Applicant's tract, which will be undisturbed by the landfill or its operations, or else to a suitable habitat area off-site, as directed by the FGFWFC. Jay Stephen Godley was accepted as an expert in wildlife ecology and wetlands ecology. He directed an independent assessment of the site and project's impacts. The assessment included reviewing permitting documents, aerial photographs and literature pertaining to wildlife use of the site, as well as over 90 man hours spent at the site. He confirmed that the small population of gopher tortoises was the only significant species on the site and that the project would not significantly impact any listed wildlife species. Extensive trapping and investigation of gopher tortoise and armadillo burrows reveal no evidence of listed "commensal" species, or those species commonly found in association with gopher tortoises, such as Florida mice, gopher frogs, Florida pine snakes, or Eastern indigo snakes. In additions the isolated cypress head in the Class I landfill footprint was sampled for gopher frog tadpoles, and none were found. Florida pine snakes prefer scrub or sand hill habitats, neither of which are found on the site. Pine flatwoods environments, without the presence of either sand hill or scrub habitat, like this site, are not good indigo snake habitat. No indigo snakes' shed skins or other evidence of indigo snake frequency were observed on the site. Indigo snakes are large black snakes which are active during daylight hours and easy to observe in the course of extensive surveys such as those that were conducted for purposes of this project. Considering the amount of time spent by the various biologists on the site, it is quite likely that indigo snakes would have been observed if they frequented this site. The project will have no significant impact on wading birds. All wetlands were surveyed for listed bird species for a minimum of five days using FGFWFC guidelines. No wading birds were observed on the site during the 21 month period of review by Mr. Robinson's firm. The existence of the wood stork, bald eagle or Florida sand hill crane was not established on this site and is considered unlikely by the expert witnesses, whose opinions are accepted. No eagle nests were observed and, since the tree cover provides very limited extent of open water, the site is less than satisfactory as habitat for the little blue heron, snowy egret and Louisiana heron. The only wading bird observed by the Petitioner's expert witness on wildlife issues was a little blue heron observed in a wetland area east of the site, which is off the site being purchased by the Applicant and which was recently clear-cut by the Gilman Paper Company. The project will have no significant adverse impact on the Florida black bear's habitat. The black bear is a threatened species, but black bears do not use the site. No evidence was presented that black bears have ever been present on or in the immediate vicinity of the site. No witness, including Mr. Goodowns, an employee of Gilman Paper Company who has frequently visited and worked on this site over many years, has ever observed a black bear or any sign of a black bear present on the site. Bee hives have been kept at the site since at least 1969 and, although these are very attractive to black bears, they have never been known to have disturbed the hives, nor has it ever been necessary for bee keepers to erect electric fences or other devices to protect the hives from bears. The site presently is not far isolated from human activity, which fact deters the use of it as a habitat or an occasional travel way for black bears. It is located in an area completely enclosed by I-10, State Roads 228 and U.S. Highway 301, all heavily traveled public highways, as well as in close proximity to the town of Maxville, approximately two miles away, and Macclenny, approximately five miles away. Highways with high traffic volumes are significant barriers to movements of black bears, rendering it even less likely that black bears have or will frequent the site. The only evidence of potential black bear presence anywhere near the site presented by the Petitioners was the site's position near the Osceola Black Bear Range, as interpreted from one published article, as well as indication of three bear road kills from six to 15 miles away from the site, and supposed black bear movements recorded by the FGFWFC, all represented on a hand-drawn map, only admitted a corroborative hearsay pursuant to Section 120.58, Florida Statutes. The map exhibit contained the expert's own redrawing of his interpretation of the extent of the Osceola Black Bear Range from the article he referenced, which itself was not offered into evidence. Bear movements depicted on the map really consisted of those of a bear apprehended by the FGFWF and released in the area. The map did not show any roads, therefore making location and distances to the reported road kills speculative at best. Because black bears do not use this site and because of its encirclement by significant human activity, the site is not significant as a bear dispersal corridor or travelway between the Osceola Forest bear population and the Ocala Forest population. No direct evidence by radio-telemetry data or otherwise was offered to show that black bears actually move between the Osceola and Ocala Forest populations, nor particularly that they move through the area in the immediate vicinity of the project site. Construction of the landfill would not prevent the movement or foraging of black bears through the site. Neither fencing nor presence of traffic on the landfill access roads only during daylight hours would prevent such movement. It is also unlikely that bears would likely be hit by traffic on the roads because the noisy trucks which will use the road would provide ample warning to bear's of any danger from traffic so they would avoid it. If the landfill were constructed on this site, less than one-half of 5/100 of one percent of the 3,800 square- mile area of the Osceola Black Bear Range, referenced by the Petitioners' expert witness, would be impacted. The site itself does not provide high quality black bear' foraging or denning habitat. Even the Petitioners' expert characterized it as "good" or "better than average" habitat. All but 3.17 acres of the area to be impacted by the project is upland, consisting primarily of pine flatwoods. Authoritative studies show that flatwoods are not heavily utilized by bears, which spend 70 percent of their time in swamp or wetland habitat. The 550 acres of wetlands, including approximately 280 acres of swamps, which will be left undisturbed on the site, will provide habitat and travel corridors for the black bears should any ever frequent the site. Additionally, the 4.76 acres of hardwood wetlands to be created as mitigation, would add high quality wetland habitat for black bears. Therefore, due to the extremely small area involved, the unlikelihood of use by black bears and the mitigation proposed, the landfill will have virtually no impact on black bear habitat, travelways or populations. The evidence thus established that the project will not have an adverse impact on endangered or threatened species or their habitats. Because the site has been under extensive commercial forest management and harvest operations for over forty years, the density of plant and animal life has been reduced, thus making the site as a whole, low quality wildlife habitat.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving Trail Ridge Landfill, Inc.'s applications for the above-referenced permits for the proposed solid waste management facility, including a solid waste management facility permit, a storm water/management and storage of surface waters permit and a dredge and fill permit, provided those mandatory conditions specified in the Notices of Intent to issue such permits, as well as those conditions found to be necessary in the above Findings of Fact and Conclusions of Law are made mandatory conditions of permitting and subsequent facility operations. DONE AND ENTERED this 20th day of September, 1991, 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 20th day of September 1991.
The Issue The issue to be determined in this case is whether the Leon County Application Review Committee's preliminary decision approving a site and development plan for the Market District Housing (LSP 180013) is consistent with the Tallahassee-Leon County Comprehensive Plan ("Comp Plan") and the Leon County Land Development Code ("Code").
Findings Of Fact The Parties The Petitioner, Wynona C. Braswell, lives at 2784 Palafox Lane, which is the single-family lot located at Lot 5, Block A, of the 2008 Palafox Preserve Subdivision Plat ("Plat"). The Petitioner, Vickie Goodman, lives at the single- family lot located at Lot 1, Block A, of the Plat. The Petitioners are concerned that changes in the storm water management facility on Lot 1, Block B, of the Palafox Preserve Subdivision will reduce the size of the storm water pond. The Petitioners are concerned that changes in the storm water pond will cause the conservation easement to overflow and burden the storm water facilities owned by residential homeowners. Leon County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Leon County is responsible for enacting and applying relevant Comp Plan and Code provisions to the development of property located within its political boundaries. Palafox is a limited liability corporation that is the applicant seeking approval for the "Type A" site and development plan, which is the subject of this proceeding. Palafox is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. Gary Zins owns and controls Palafox through its managing member, Evergreen Communities, Inc., and is also the president of the Palafox Preserve Commercial Property Owners' Association, Inc., and controls the association as its only officer and director. Land Use Designations The Project is located on approximately 2.75 acres of the approximately 6-acre parcel of land identified as Lot 1, Block B, on the Plat. The parcel is within the Suburban ("SUB") and Lake Protection ("LP") categories on the Future Land Use Map of the Comp Plan. The parcel is split zoned Office Residential 3 ("OR-3") and LP. The Project is proposed only within the OR-3 zoned portion. Policy 2.2.5 of the Future Land Use Element ("FLUE") of the Comp Plan provides that the major function of the SUB designation is to mix placement of employment and shopping opportunities, with convenient access to low and medium density residential land uses. The proposal for 36 dwelling units which equates to a density of approximately 13 dwelling units per acre ("du/a") meets the gross density requirement of the OR-3 zoning district. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by Leon County as desirable for new development based on the availability of existing infrastructure and services. The parcel contains a localized closed basin, wetlands and 100-year floodplain. Consistent with Comp Plan Conservation Element Policies 1.3.2 and 1.3.6, the areas of the site that contain environmentally sensitive features were previously placed in a perpetual conservation easement, and Palafox does not propose to disturb the area in the conservation easement. Background Leon County previously approved development of 19 single-family lots located on Lots 1 through 19, Block A, of the Plat. This development included infrastructure such as Palafox Lane, which is the entrance to the subdivision, and storm water management facilities in both Block A and Block B of the Palafox Preserve Subdivision. The Palafox Preserve Subdivision is a common scheme of development, and the storm water management facilities are operated under a single operating permit. It is also a private subdivision with all of the storm water management facilities dedicated to private entities and not to Leon County. A wetland of approximately seven acres was identified as part of the Natural Features Inventory ("NFI") and placed in a perpetual conservation easement in 2006. The wetland was initially delineated in 2001 by Kevin Songer who represented the applicant at that time. Mr. Songer's wetland delineation was field reviewed by representatives from Leon County and the Florida Department of Environmental Protection, adjusted, and finally approved by Leon County in 2006 as part of the NFI approval. The wetland and perpetual conservation easement straddle the boundary between Block A and Block B with about two- thirds in Block A and about one-third in Block B. With the required buffer area added to the approximately seven-acre wetland, the perpetual conservation easement in total covers approximately nine acres. Subsequent permits for the development of the Palafox Preserve Subdivision, such as for the 19 homesites, relied on the 2006 NFI, which included the 2001 wetland delineation and the perpetual conservation easement. Leon County did not require new wetland delineations prior to development of each homesite even though homes were built as recently as 2012, 2013, and 2014. The storm water management facility constructed in Block B of the Plat is labeled as SWMF #1. SWMF #1 was designed to retain the additional runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. SWMF #1 has a concrete weir that allows a controlled discharge into the adjacent conservation easement wetlands. Storm water management facilities constructed in Block A included SWMFs #6 and #7 that collect the runoff from the homesites located on the west side of the conservation easement, namely Lots 11 through 19. Lots 11 through 19 all contain a portion of the conservation easement area as well as platted drainage easements. SWMFs #6 and #7 are constructed in the platted drainage easements on Lots 11 through 19 in Block A. SWMFs #6 and #7 are constructed in a horseshoe shape adjacent to the conservation easement, are designed as detention facilities, and discharge to the conservation easement wetlands. The SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are within the localized closed basin. There is another SWMF to the west behind homesites located on Lots 1 through 7 that is labeled SWMF #5. SWMF #5 is not within the localized closed basin and discharges to the Lake Jackson drainage basin. The conservation easement also contains a "pop-off" or outfall which allows for discharge of water from the wetlands to the west if it reaches a certain elevation, which based on the plans is 223.57 feet. It was designed to mimic pre-development conditions and only discharges if the 100-year, 24-hour storm is exceeded. If discharged, the water would travel west through drainage easements to SWMF #5 and ultimately to Lake Jackson. Because the localized closed basin retains up to the 100-year, 24-hour storm, it is a closed basin under the Code. Leon County also previously approved commercial development on Lot 1, Block B, of the Plat, which is still active (Palafox Preserve Commercial Project). The site development approval and environmental permits for the Palafox Preserve Commercial Project are current but would be superseded by final approval of the site and development plan and environmental permit for the current Project. The Project In 2014, an earlier application for Site Plan and Development Review was submitted for the Market District Housing Project. An Environmental Permit Application ("EMP") was also reviewed concurrently under the Code. Leon County issued a preliminary written decision of approval, which was appealed by Robert and Wynona Braswell, and the case was assigned to DOAH. Based on certain issues, the application was withdrawn, and the parties litigated in circuit court. That litigation concluded with a Final Judgment in favor of Evergreen Communities, Inc., and Palafox. Palafox then submitted the current site and development plan application for the Project dated April 4, 2018, which was designated LSP 180013. Palafox concurrently submitted an EMP application for the Project, which was designated as LEM 18- 00034. The Project's current Plan application was reviewed by various departments within Leon County, as well as several other entities and agencies. Ms. Shawna Martin, principal planner with the Leon County Development Services Division, coordinated the review gathering comments and feedback from the various departments and agencies and coordinated the preparation of a Staff Report for the Application Review Meeting ("ARM") held on April 25, 2018. The Staff Report recommended approval of the Project finding that the Project's proposed development was consistent with the Comp Plan, met applicable zoning standards and requirements, and met the applicable provisions of the County's Environmental Management Act ("EMA") and the provisions of chapter 10 of the Code. Leon County's Environmental Services Division ("Environmental Services"), under the supervision of Nawfal Ezzagaghi, a licensed professional engineer, reviewed the EMP application for the Project concurrently with the site plan and development review. Mr. Ezzagaghi has been the environmental review supervisor for Leon County since 2005, and is responsible for the review by Environmental Services' staff of environmental management plans, engineering calculations, engineering plans, and providing input on site plans and to the public works department. During the review of the application, both in 2014 and 2018, Environmental Services under Mr. Ezzagaghi's supervision reviewed the application including the storm water design, modeling, and construction plans, and coordinated and communicated with the applicant. Environmental Services received and reviewed the materials, conducted an independent analysis, and ultimately verified compliance with the EMA. The Petitioners received notice of the ARM meeting, submitted verbal and written comment, and ultimately challenged the written preliminary decision of approval. The Petitioners' challenge raised three primary issues: (1) that the Project is inconsistent with the Plat; (2) that the perpetual conservation easement wetland should have been re- delineated as part of the Project's current permitting application; and (3) that the storm water plan for the Project does not meet the requirements of the Code. Palafox Preserve Subdivision Plat The Plat designates a portion of Lot 1, Block B, as the "POA Drainage Easement." The dedication provisions of the Plat convey the POA Drainage Easement to the Palafox Preserve Commercial Property Owners' Association, Inc. Palafox, the applicant, is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. The dedication provisions of the Plat convey all "drainage easements" to the Palafox Preserve Home Owners Association, Inc., which is the owners' association for Block A--the residential area of the subdivision. Plat Note 5 states that "the construction of permanent structures, including fences but excluding driveways, by the Property Owner is prohibited within drainage and utility easements." The Petitioners claim that the Project is inconsistent with the prohibition in Plat Note 5. SWMF #1 is located within the POA Drainage Easement on Lot 1, Block B, of the Plat and does not serve any part of the residential area of the subdivision. On its face, the prohibition in Plat Note 5 does not apply to the POA Drainage Easement. In addition, words such as "fences" and "driveways" more reasonably refer to residential areas of the Plat. Wetland Delineation The application for the Project did not contain a new NFI. Leon County informed Palafox that the parcel had already been through the NFI process and held a valid and active EMP. As a matter of policy, Leon County does not require submission of a new NFI or new wetland delineation once previously delineated wetlands are under a perpetual conservation easement that is dedicated to Leon County as a preservation area. Unlike the 2001 wetland delineation line submitted in the 2006 NFI and placed under the perpetual conservation easement, Kevin Songer's 2015 wetland delineation work for the Petitioners was neither checked by independent peer review nor confirmed by any state or local environmental regulatory agency. Mr. Songer's 2015 wetland delineation does not represent a recognized wetland jurisdictional line. Storm Water Plan The storm water management system for the Project is a "two-step system" designed to address both the water quality and volume control standards of the EMA. For water quality, the Code requires a one and one-eighth-inch standard for storm water treatment and the Project would satisfy this requirement through a new storm water detention and treatment facility. The detention pond is designed to treat the volume determined from the one and one-eighth-inch standard, or slightly more than 14,000 cubic feet. This is the more critical volume for which the new facility must be designed. For volume control, the closed basin standard requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That difference is approximately 9,650 cubic feet. The closed basin for which retention must be demonstrated includes the conservation easement wetlands, and modeling demonstrated a change in elevation from 221.51 to 221.54 over approximately six acres. This difference in elevation is retained in the wetlands up to and including the 100-year, 24- hour storm. The post-development elevation of 221.54 does not approach the 223.57 "pop-off" elevation of the wetlands. SWMF #1 was designed to retain runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. The evidence established that SWMF #1 was "over-designed" because of circumstances in 2006 to 2007, which may have included different Code requirements and the wishes of the original developer. The Petitioners' engineer, Sal Arnaldo, who did not have any previous experience with the Code, opined that the existing SWMF #1 could not be replaced by the proposed detention with treatment facility. Mr. Arnaldo's understanding of the Code was that all storm water that falls on Block B and runoff from the first 500 feet of Palafox Lane must be retained in a retention pond up to and including the 100-year, 24-hour storm. He viewed SWMF #1 as the "closed basin" or the "site" that was not allowed to discharge to the conservation easement wetlands. In his opinion, the proposed detention facility for the Project did not provide the same function. Different pond sizes, designs, and storm water management methods can be used to meet the requirements of the Code exemplified by the fact that the two-step approach used for the Project is the same approach used on the west side of the wetlands for Lots 11 through 19, Block A. SWMFs #6 and #7 are also detention facilities which were designed to treat storm water and discharge to the conservation easement wetlands. Leon County's expert engineer, Mr. Ezzagaghi, testified that the SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are part of the closed basin under the Code. Thus, the standard is not a comparison of the capacity of existing SWMF #1 to the capacity of the proposed detention facility, but whether the storm water system as a whole controls for the post- development volume that is in excess of pre-development conditions. The evidence demonstrated that the Project's proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. Summary The preponderance of the evidence, which includes Leon County's interpretation and application of applicable provisions of the Comp Plan and Code, demonstrated that the Project is consistent with all requirements for approval. See § 10-7.407, Leon Cnty. Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Application Review Committee in its written preliminary decision dated April 27, 2018. DONE AND ENTERED this 31st day of August, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2018.
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
Findings Of Fact On October 16, 1992, Dawson filed an application for a permit to demuck and fill approximately 1250 square feet, and grade and sod to natural elevation approximately 3000 square feet of previously impacted wetlands adjacent to an unnamed tributary of Wills Branch, Duval County, in order to construct a pad for the construction of a single family residence. The site is Lot 34 of Hammond Forest Subdivision. The loss of wetland function was mitigated by Dawson which agreed to place two acres of wetlands adjoining Ortega River in a conservation easement to the Department. Following a review of Dawson's application, the Department issued permit # 162205542, and gave notice to the adjacent property owners, including Petitioner, who timely requested a formal hearing. Hammond Forest Subdivision consist of 45 residential lots which have been developed except for two lots, one of which is lot 34, the site of the proposed permit. The Wills Branch drainage basin runs generally north to south through the subdivision. Petitioner's lot, lot 33, and the proposed site, lot 34, are at the southernmost edge of the subdivision and adjacent to a pond which is terminus of the southerly flow of surface waters into the Wills Branch system. In October 1993, the Petitioner's home was flooded by surface water run off from the area north of Petitioner's home, including areas within and outside the Hammond Forest Subdivision. Property owners living on the northern most portion of the subdivision have drainage problems, and have experienced sheet flow of water south across their property and water damage to their driveways. In order to alleviate this problem, Dawson constructed a shallow swale along the northern border of the subdivision which is intended to catch the southerly flow of surface water and divert the water to the east where it is captured in a storm drain located at the northeast corner of lot 17. The storm sewer is suppose to move the water below ground due south to the vicinity of Hammond Forest Drive, the principle street in the subdivision, which runs west to east in front of the proposed site and the Petitioner's lot. At the street, this storm sewer is connected to the storm water collectors for the street. The street storm sewers in the vicinity of the proposed site are inadequate to handle the volume of water which runs south down the cul-de-sacs into Hammond Forest Drive. The storm sewer are unable to handle the run off, and the water backs up in the sewer all the way to the northern collector located at the western end of the shallow swale. The owner of lot 17 experiences sheet flow of storm water over his property, and down his drive. From there, the water follows Quail Walk south to Hammond Forest. The property owners on the most easterly cul-de-sac, which is an extension of Hammond Forest, experience similar sheet flows of water. This water flows south down Hammond Forest towards the proposed site and the Petitioner's lot. The surface water flow down Hammond Forest meets the flow from Quail Walk immediately across from the proposed site and the Petitioner's lot. At this point the overloaded storm sewers cannot handle the merging flow of the northern storm drain and the water collected on the lots and streets to the north. The water backs up and collects at the collector located between the proposed site and the Petitioner's lot where the swirling caused by the drain forces the water over and down the Petitioner's driveway. During the record setting October 1993 rains, the water flooded the Petitioner's house. The water was so deep it was literally running in the front door and out the back door. Subsequent to the October 1993 flood, Petitioner's contractor installed a lateral driveway drain. Since this drain was installed, there has not been a rain comparable to the October 1993 rains; however, in a serious storm after the drain was installed, the waters surged into the Petitioner's driveway and flooded his garage. The proposed site is no higher than Petitioner's lot. The storm water drainage system for the subdivision was approved by the St. John's Water Management District prior to construction of the subdivision which preceded the application for the instant permit. The collector at lot 17 was added after construction of the other storm sewers which were not designed to accept this added volume of water. Expert testimony was received that the problem with the storm drains and sewers resulted from the absorption factor applied to the property which is upland from the subdivision which was unduly optimistic. Although the system was designed to be over minimum capacity, it is insufficient to handle the actual volume of water. A storm sewer runs from the collection grate between lots 33 and 34 to the collection pond along a easement between the aforementioned lots. The size of this storm sewer is inadequate, and the collection of water in the vicinity of the collector between the proposed site and the Petitioner's lot would be alleviated by increasing the size of this sewer pipe which runs the depth of and adjacent to the proposed site. The majority of this easement lies in an area regulated by the Department, and repairs to the drain would require the Department's approval for dredge and fill. The flow of surface storm water over Petitioner's lot is directly south into the collection pond. The developer plans to avoid flooding problems on the proposed site by raising the building pad's elevation a half foot; however, this will not prevent sheet water flow over the lot during storms given the elevations on the remainder of lot 34 which are identical to those on Petitioner's lot. The development of lot 34, which is currently is in a natural state, will alter the flow of water through the Wills Branch drainage basin by eliminating the natural vegetation and by allowing additional sheet flow over the developed lot into the collection pond. This water will carry into the pond lawn chemicals, fertilizers and other contaminates which it picks up as it travels over lot 34. A swale exists along the western edge of the Petitioner's property which prevents the lateral, east-west, movement of water between lots 33 and 34. A similar swale will be constructed between the two lots after lot 34 is filled and re-graded.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That Permit No. 162205542 be denied, or conditioned by requiring the applicant to increase the size of the sewer pipe between lots 33 and 34 to eliminate the reoccurring flooding and sheet flows of water over lot 33 and lot 34, as proposed to be developed. DONE and ENTERED this 30th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1994. APPENDIX A CASE NO. 93-7175 Both of the Respondents submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Dawson's Proposed Findings Recommended Order Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 15 Paragraph 3 Paragraph 5 Paragraph 4,5 Paragraph 13 Paragraph 6,7 Contrary to best evidence DEP's Proposed Findings Recommended Order Paragraph 1 Paragraph 1,2 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 3 Paragraph 4 Paragraph 5 Paragraph 5,6 Preliminary Stmt Paragraph 7 Paragraph 15 Paragraph 8-11 Conclusions of Law Paragraph 12 Paragraph 22 Paragraph 13,14 Paragraph 5, subsumed in 5 Paragraph 15 Conclusions of Law Paragraph 16,17 Paragraph 22 Paragraph 18 Contrary to best evidence Paragraph 19 Conclusions of Law Paragraph 20,21 Contrary to best evidence COPIES FURNISHED: Gary R. Pedroni 8682 Hammond Forest Drive Jacksonville, FL 32221 Carl D. Dawson, Sr., Esquire 320 East Adams Street Jacksonville, FL 32202 Donna M. La Plante, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
