Findings Of Fact Mr. Mills owns a 105 acre tract of land on which he raises cattle. This land is directly east of South Bull Pond in Putnam County, Florida. The land which he proposes to fill lies within the landward extent of South Bull Pond. The pond is a natural lake of approximately 350 acres which does not become dry each year. The lake has a maximum average depth of greater than 2 feet throughout the year. Its shoreline is owned by more than one person. South Bull Pond is a Class III water of the State of Florida. Petitioner's proposed project involves the excavation of approximately 5,000 cubic yards of sand and muck from the lake bottom. He plans to place the fill in an area adjacent to the dredge site but within the landward extent of the lake. The area to be excavated is 200 feet long and 50 feet wide. The area to be filled with spoil material is the same size immediately to the east of the dredge area. The excavation will be approximately three feet deep into the lake bottom. Mr. Mills' application indicates that the purpose of the proposed work is to keep his cows out of the bog and also to increase the value of his property. The proposed dredging and filling will result in the permanent elimination of approximately one-half acre of natural vegetation along the lake. This area consists of a natural berm formed by alluvial deposits and a wet bog landward of the berm. There is an opening through the berm which allows the free exchange of waters between the main body of the lake and the bog area. The top elevation of the berm is such that the berm area is submerged for long periods of time. Ordinary high water inundates the berm and passes over it into the bog which is at a lower elevation than the berm. The field appraisal of the proposed site was conducted by Mr. John Hendrix, a Department biologist, on May 5, 1981. The site consists of three areas: the lakeshore, the berm, and the bog. The dominate species along the lakeshore are Saw grass (Cladium jamaicensis), Water Lily (Nymphaea spp.), Pickerelweed (Pontederia lanceolata), and Spatter dock (Nuphar spp.). The dominant fresh water species on the berm are: Saw grass (Cladium jamaicensis), and Arrowhead (Sagittaria spp.). Two transitional fresh water species also grow on the berm: St. John's wort (Hypericum fasciculatum) and Button bush (Cephalanthus occidentalis). The dominant species of the bog, which is landward of the berm, are Water Lily (nymphaea spp.), Water shield (Brasenia schreberi), Royal fern (Osmunda regalis), and Arrowhead (Sagittaria spp.). The lake is presently mesotrophic. It has a large productive vegetative structure primarily along the shoreline. The nutrients are "tied up" or stored in the marshes and peaty sediments of this shoreline and are not freely circulating in the main water body. The shoreline vegetation provides filtration for the main water body. The plants physically entrap sediments and biochemically assimilate them. They also store nutrients which otherwise degrade the water in the lake. The proposed dredging and filling will degrade water quality in two ways: 1) The equipment used for dredging will disrupt the sediments. They will then discharge freely into the water column of the lake and release their stored nutrients. 2) The berm and bog areas will be destroyed so that they can no longer stabilize the shoreline or provide the filtration function. Adverse water quality impacts from the project will be both short and long term. The short terms impacts include expected violations of the following water quality criteria found in Chapter 17-3, Florida Administrative Code: BOD; dissolved oxygen; transparency; biological integrity; turbidity; pH; nuisance species; and both nutrients criteria. The long term impacts will include stimulation of shifting of the natural balance of the lake towards a more eutrophic state and violation of the water quality criteria for nutrients, dissolved oxygen, BOD and transparency. Petitioner wants to fill the bog to prevent injury to his cows. A workable alternative to filling the bog is to erect a fence across the property to exclude the cows from that area. The drawings submitted by Petitioner as part of his application show that the operation of the dredging machinery would be from the berm. During the hearing Petitioner indicated that such machinery would be operating from the lakeshore. This modification would create fewer short term violations of water quality criteria. However, the following criteria would still be violated: BOD, turbidity, nuisance species, biological integrity, dissolved oxygen, transparency and nutrients.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying Petitioner's permit application. DONE AND ENTERED this 14th day of October 1981 in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1981. COPIES FURNISHED: Jimmie L. Mills Route 2, Box 244 Hawthorne, Florida 32640 Silvia Morell Alderman, Esquire Cynthia K. Christen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel. The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals. The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be. The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it. The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods. This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat. The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
Findings Of Fact Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.
Recommendation From the foregoing, it is RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William W. Carpenter, Esquire 830 East Highway 434 Longwood, Florida 32750
Findings Of Fact The Petitioner, E. F. Guyton, has filed an application for a permit which would allow the dredging of a boat slip and construction of a sedimentation basin with boat storage, specifically requiring the excavation of a boat basin, access canal, and access channel on his property which is located on the west shore of Crescent Lake, in Putnam County, Florida. The permit application number is 54-6806. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has the responsibility of appraising those applications such as the one submitted by the Petitioner, E. F. Guyton, and making a decision to grant or deny that permit. The authority for such action on the part of the Respondent resides in Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code. This cause comes on for consideration based upon the Respondent's letter of intent to deny the application, as dated August 22, 1978, after which the Petitioner has filed its petition challenging that intent to deny and requesting that the permit be granted. The petition in behalf of the Petitioner was received by the office of the Respondent on September 8, 1978. It was subsequently assigned to the Division of Administrative Hearings for consideration and that Notice of Assignment was dated September 28, 1978. The proposal for permit calls for excavation of a boat basin 100 feet wide and 480 feet long, leading into an access canal 25 feet wide and 500 feet long. This excavation is in the vicinity of an existing intermittent natural stream. The proposal would call for the removal of approximately 21,000 cubic yards of silt and sand, landward of mean high water. The excavation would be accomplished by use of a dragline to a depth of -2.0 feet MSL. The basin and canal slopes would be 2:1 and stabilization of slopes would be assured by riprap and grassing. A concrete spillway would be constructed at the upper end of the basin to direct the stream flow into the basin. In addition, the proposal calls for the dredging of an access channel through the shallow littoral zone of Crescent Lake to the mouth of the proposed access canal. The dredging involved with the access channel would cause the removal of 400 cubic yards of sediment from an area 250 feet long and as wide as 30 feet. The proposed depth of the channel is 2.0 feet MSL and slide slopes would be 5:1. The spoil would be pumped to a dike holding area on adjacent uplands. The Respondent's Exhibit No. 1, which is the permit application, offers a sketch of the boat basin with secondary sedimentation feature and the attendant access canal and channel. The project lies between U.S. Highway 17 and Crescent Lake, Areas to the south and west of the site are pasture and bayhead wetlands and they serve as a watershed for the aforementioned intermittent stream. Other upland areas in the vicinity are dominated by fully-drained flat woods and well-drained sand hill and messic oak terrain. The project site waterward of the mean high water is part of a shallow littoral zone of the west shore of Cresent Lake. The intermittent stream receives the runoff from the pastureland and drainage from U.S. Highway 17. There is a pronounced change in elevation during the course of the intermittent stream. The submerged littoral zone of the lake, which includes the proposed site of the access canal, falls away at a gentle slope and includes a number of supporting hardwoods, predominantly bald cypress. The area also includes submerged emergent vegetation, which is found in the shallows offshore. These shallows are exposed to favorable sunlight from the point of view of the health of this vegetation. The vegetation includes an emergent bed of oft stem bulrush (Sicrpus validus) which is in line with the proposed channel. Within the photic zone there is submerged tape grass (Valisneria americana) and naiad (Najas sp.). On the shore of Crescent Lake at the project site is found a hardwood swamp in its natural form, together with a creekbed which divides into numerous channels fanning out in the direction of the lake itself. This area of the creekbed contains bald cypress (Taxodium distichum), red maple (Acer rubrum), swamp ash (Fraxinus panciflora), black willow (Salix nigra), black gum (Nyssa biflra), water hickory (Carya aquatica), and wax myrtle (Myrica cerifera). The herbs and ferns in this area include penny wort (Hydrocotyl umbellata), arrow- arum (Peltandra virginica), leather fern (Acrostichum danaeifolium), and royal fern (Osmunda regalis). The sediments found in the creek area are sandy to silty sand. In the area where the boat basin/sedimentation facility would be located, the present intermittent stream is much more confined than in the area of the creekbed. Only in times of heavy rainfall does the water come outside the banks of the intermittent stream and inundate the surrounding territory. This portion of the stream is densely vegetated by a mixture of hydrophytes, facultative hydrophytes, an optimally situated upland species. These include sweet bay (Magnolia virginiana), black gum (Nyssa biflora), and red maple (Acer rubrum). Additionally, there are slash pine (Pinus elliotii), long leaf pine (Pinus palustris), dahoon (Ilex cassine), wax myrtle (Myrica cerifera), water oak (Quercus nigra), wild azalea (Ericaceae), and saw palmetto (Serenoa repens). The sedminets in this area range from very sandy in the slightly higher elevations adjacent to the stream bed to a heavy peat which is found predominantly in the bay tree locations. The uplands in the agricultural area are dominated by water oak, slash pine, long leaf pine, live oak and saw palmetto. A more graphic depiction of the project site and in particular as it relates to the intermittent stream, shore line upland agricultural area, and U.S. Highway 17 may be found in the Petitioner's Exhibits 1 and 2 and the Respondent's Exhibits 2 through 15, which are photographs of the project site. There are numerous varieties of fish in the area of Crescent Lake through which the access channel would be routed. These include: Seminole killifish (Fundulus seminolis), naked goby (Gobiosoma bosci), black bullhead (Ictalurus melas), brook silversides (Labidesthes sicculus), sunfish (Lepomis sp.), large-mouth bass (Micropterus salmoides) and Atlantic needlefish (Strongylura marina) . In addition, there are 35 species of invertebrates which were collected in the studies made by employees of the Respondent in their assessment of this permit application. The names of those invertebrates may be found in the Respondent's Exhibit No. 19 which was admitted into evidence in the course of the hearing. The vegetation and shallow water with a sandy bottom, together with the numbers and species of macro invertebrates, small fishes and immature game fishes point to the fact that this part of the lake serves as a valuable site for the propagation of fish, otherwise referred to as a spawning ground. The water quality in Crescent Lake at the site of the project is good, from the standpoint of gross observations. However, there have been some indications of eutrophication in Cresent Lake. A more complete understanding of the water quality may be gained from an examination of the Respondent's Exhibits 21 through 41 admitted into evidence. These exhibits are constituted of certain water quality reports rendered after extensive testing in Crescent Lake. The rainfall in the area exceeds 54 inches a year, with 50 percent of that rainfall being recorded in the wettest quarter, in which over 7 inches a month would fall. July has recorded 15 inches as a mean measurement over the last 80 years, with the month of May showing less than 2 inches, the month of September showing less than 2 inches and the month of October less than 1 inch. In considering the proposed project, a beginning point would be an examination of the ability of the primary filtration pond and secondary filtration function found in the boat basin, to adequately disperse the pollutants which will come into the system from the agricultural area and U.S. Highway 17. That treatment system is inadequate. The inadequacy exists because in periods of low rainfall the pollutants will settle to the bottom of the siltation system and will not be dispersed evenly. This cycle of low rainfall when followed by heavy rainfall, such as occurs in July, will cause the pollutants to be rapidly discharged from the system into the basin of the lake, either in a dissolved form or a free form, causing an unreasonable dilatorious effect to water quality and creating possible turbidity. The confined nature of the proposed channel which empties into the lake will promote scouring because the water is coming out in a more confined area than the natural access allows at present. In addition, the flow velocity in the secondary siltation system is not strong enough to flush out the pollutants in an efficient manner. Finally, channelization promoted by the system would remove a certain percentage of the biological treatment that occurs in the natural intermittent stream, thereby introducing a greater quantity of pollutants into the lake and reducing oxidation that this biological treatment and natural course of the intermittent stream bed now provides. The project, as contemplated, is very similar in its nature to the canal system in Dunns Creek, a body of water adjacent to Crescent Lake. A study conducted on that canal system revealed a very poor quality of dissolved oxygen, which falls below the water quality standards for Class III waters. (A copy of this report may be found as Respondent's Exhibit No. 20 admitted into evidence.) These are the same standards that would apply to Crescent Lake. In addition, there is a lack of flushing and the development of aquatic weeds deterimental to the fish and invertebrates located in the area of the Dunns Creek canals. Therefore, a similar problem could be expected in the project now under consideration. If the project were completed, the excavation of the material would cause disruption of the sediment and water quality degradation if precipitation occurred during the excavation. Efforts at turbidity control would not protect against a heavy rain and the maturely vegetated stream bed and productive littoral vegetation and substrates would be lost. The long term effects of the project would cause degradation of the water quality and a loss of fish and wildlife resources in the impact area. The filtrative assimilative capacity provided by the algae, shrubs, trees and associated substrates involved in the process of absorption and in aerobic bacterial metabolism, would be eliminated by the project and replaced by an intermittently flushed, highly nutrified shallow water lagoon and canal. Pollutants associated with boat operations would further compound the water quality problems and perpetual sediment disruption would occur because of a natural result of shallow water maintenance and use of the system. Siltation and periodic discharge of degraded basin water into the littoral zone of the lake would adversely effect the productive potential and the habitat potential offered by this area in its present form. Based upon a full assessment of the project, it is established that there would be increased and harmful erosion, shoaling of the channel and the creation of stagnant areas of water. It would also cause an interference with the conservation of fish, marine and wildlife to an extent that is contrary to the public interest. It would promote the destruction of natural marine habitats, grass flats suitable as nurseries or feeding grounds for marine life and established marine soils suitable for producing plant growth of a type useful as a nursery or feeding ground for marine life or natural shoreline processes to an extent contrary to the public interests. These failings are in direct contravention of Chapter 253, Florida Statutes. The project would be contrary to State Water Quality Standards, as developed pursuant to authority of Chapter 403, Florida Statutes. Thus, the Petitioner has failed to give reasonable assurances that the immediate and long term impacts of the project would not result in a violation of the State Water Quality Standards, as required by Rule 17-4.28(3), Florida Administrative Code.
The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of April, 2001.
Findings Of Fact Joyce K. Anderson and Thomas Barnett have filed an application for issuance of a permit to dredge and fill a small area in the littoral, or "near shore," zone of Gillis Pond, a "sandhill lake" lying in what is known as the "sandhill region" of Central Florida, generally northeast of Gainesville. The dredging and filling as now proposed would be on and waterward of two lakefront lots jointly owed by the permit applicants. They seek by their application, authorization to dredge and fill at only one site on the waterward margin of the two lots with that modified project area reduced in size to a dimension of 12 feet by 25 feet. Fifteen feet of the project would be waterward of the shoreline. The Respondent, the Department of Environmental Regulation, is an agency of the State of Florida charged with the duty of enforcing, as pertinent hereto, the provisions of Chapter 403, Florida Statutes, and Chapter 17-3 and 4, Florida Administrative Code, enforcing the water quality standards contained therein as they relate to dredge and fill projects of this sort, with concomitant permitting jurisdiction over such projects. The permit applicants desire this dredge and fill permit in order to make a safe, comfortable swimming area for Mrs. Anderson's family and friends. Mrs. Anderson desires to remove the tree stumps, roots and vegetation existing in the littoral zone area of the above dimensions in order to make access directly from the shore more comfortable and pleasant, especially for small children who are unable to swim in the deep water off the waterward end of the existing dock. Mrs. Anderson already has a 56 foot dock extending from her property into the lake. The water is 7 feet deep at the waterward end of the dock and the littoral zone containing aquatic vegetation extends beyond the length of the dock in a waterward direction. The project area would extend waterward of the shoreline, a distance of 15 feet, and would parallel the shoreline approximately a distance of 12 feet. The littoral zone vegetation at the site, however, extends waterward from the shoreline 50 to 60 feet. The proposed area to be dredged is quite small in size in relation to the total linear shoreline of the subject lake of approximately 4,000 feet. The dredged material would be excavated to a depth of approximately 6 inches over that 12 by 15 foot area and replaced with clean sand fill. The dredged material removed from the site would be secured on an upland site such that nutrient pollutants from that dredged material could not be leached or carried back into the lake through storm water runoff. Approximately one-third of the shoreline of the lake is bordered by a marsh or wet prairie which is approximately as large in area as the lake itself. The dominant vegetative species in the project area and surrounding the lake, including the marsh, are submerged freshwater species listed in Rule 17- 4.02(17), Florida Administrative Code, including maidencane, sawgrass and a rare aquatic plant, websteria confervodies. Gillis Pond is a Class III water of the state, although its water quality parameters, or some of them, clearly exceed in quality, the minimum standards for Class III waters. Gillis Pond is what is termed an "ultra- oligotrophic lake, which means that its waters are characterized by a high level of transparency and very low nutrient content, that is to say that they are essentially pristine in nature. An oligotrophic lake such as this is very sensitive to any addition of nutrient pollutants. Even a small addition of nutrients to such water can cause an imbalance in the fauna and flora which have evolved to become dependent upon a low nutrient aquatic environment. Specifically, the rare aquatic plant named above is very sensitive to any enhanced nutrient levels and thus serves as a barometer of the water quality in this body of water. The addition of any nutrient pollutants to the lake, even in small amounts, might alter the chemical balance of the water in a derogatory manner so that the websteria confervodies might be eliminated. The elimination of this species from the littoral zone vegetation band surrounding the lake would likely result in other forms of vegetation supplanting it, altering the balance and makeup of the community of fauna and flora native to the lake and possibly hastening the progress of the lake toward eutrophication and degradation. The present water quality in the lake is such that dissolved oxygen and other criteria are better than the Class III water quality standards. The vegetation in the littoral zone of the lake and extending out as much as 50 to 60 feet waterward performs a significant function in uptaking and fixing nutrient pollutants that wash into the lake from storm water runoff from the surrounding uplands. Inasmuch as 30 to 40 feet of this belt of littoral zone vegetation would remain waterward of the dredged and filled area if the permit is granted, the nutrient uptake function of the vegetation in the littoral zone would not be significantly degraded. There are two locations where littoral zone vegetation has been removed in a similar fashion and water quality and flora and fauna communities characteristic of an oligotrophic lake are still present and healthy. Further, there is an extremely low nutrient level in the lake at the present time, and no significant amount of nutrient pollutants are leached or washed into the lake through septic tanks, storm water runoff or other sources. There is no question that the project as proposed would result in some slight, transitory degradation of water quality in the form of increased turbidity and reduced transparency. Turbidity will be caused during and shortly after the dredging and filling operation itself, caused by stirring up of bottom peat or sediments and by removal of a 12 by 15 foot area of aquatic vegetation in the littoral zone of the lake. Turbidity curtains in still waters such as involved here, can substantially reduce the spread of turbidity caused by the stirring up of bottom material and can substantially reduce the period of its suspension in the water by containing it at the dredged site. The vast majority of the littoral zone vegetation surrounding and waterward of the area to be dredged will remain such that the nutrient uptake function will be essentially undisturbed, thus any adverse impact on water quality will be insignificant. In terms of cumulative effect of allowing a multiplicity of such projects, not even a 10 percent loss of the littoral zone band of vegetation in the lake, which would be the maximum possible loss if all riparian land owners were allowed a similar size dredged and filled area on the front of their lots, would cause a violation of Department water quality standards. Parenthetically, it should be pointed out that such riparian owners cannot be prevented by any water quality criteria in Chapter 403 or Chapter 17, Florida Administrative Code, from having access to the lake in front of their lots. Such human traffic will have the gradual affect of destroying a significant amount of the littoral zone vegetation on and waterward of those lots (which is a cause and result the Department is powerless to regulate). By confining the destruction of littoral zone vegetation to such a small area as that involved in the application at bar and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining critical littoral zone vegetation will be significantly enhanced.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the application of Joyce K. Anderson and Thomas Barnett for a dredge and fill permit as described in the modified and amended application be GRANTED; provided, however, that turbidity curtains are used during all dredging and filling activity and for a reasonable time thereafter until turbidity caused by the project has settled out of the water column. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983. COPIES FURNISHED: Tim Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Joyce K. Anderson and Thomas Barnett 6216-B, Southwest 11th Place Gainesville, Florida 32601 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this matter is whether Respondent, Polk County Board of Commissioners (Polk County or County) has provided Respondent, Southwest Florida Water Management District (SWFWMD), with reasonable assurances that the activities Polk County proposed to conduct pursuant to Standard General Environmental Resource Permit (ERP) No. 4419803.000 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, and 40D-40.302, Florida Administrative Code. (All rule citations are to the current Florida Administrative Code.)
Findings Of Fact Events Preceding Submittal of ERP Application The Eagle-Millsite-Hancock drainage system dates back to at least the 1920's, and has been altered and modified over time, especially as a result of phosphate mining activities which occurred on OFP property in the 1950's-1960's. The system is on private property and is not owned and was not constructed by the County. Prior to 1996, the Eagle-Millsite-Hancock drainage system was in extremely poor repair and not well- maintained. The Eagle-Millsite-Hancock drainage system originates at Eagle Lake, which is an approximately 641-acre natural lake, and discharges through a ditch drainage system to Lake Millsite, which is an approximately 130-acre natural lake. Lake Millsite drains through a series of ditches, wetlands, and ponds and flows through OFP property through a series of reclaimed phosphate pits, ditches and wetlands and ultimately flows into Lake Hancock, which is an approximately 4500-acre lake that forms part of the headwaters for the Peace River. The drainage route is approximately 0.5 to 1 mile in overall length. The Eagle-Millsite-Hancock drainage system is one of eight regional systems in the County for which the County and SWFWMD have agreed to share certain funding responsibilities pursuant to a 1996 letter agreement. To implement improvements to these drainage systems, Polk County would be required to comply with all permitting requirements of SWFWMD. During the winter of 1997-1998, Polk County experienced extremely heavy rainfall, over 39 inches, as a result of El Nino weather conditions. This unprecedented rainfall was preceded by high rainfalls during the 1995-1996 rainy season which saturated surface waters and groundwater levels. During 1998, Polk County declared a state of emergency and was declared a federal disaster area qualifying for FEMA assistance. Along the Lake Eagle and Millsite Lake drainage areas, septic tanks were malfunctioning, wells were inundated and roads were underwater. The County received many flooding complaints from citizens in the area. As a result of flooding conditions, emergency measures were taken by the County. The County obtained SWFWMD authorization to undertake ditch cleaning or vegetative control for several drainage ditch systems in the County, including the Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit was required or obtained for this ditch cleaning and vegetative control. During its efforts to alleviate flooding and undertake emergency ditch maintenance along the Eagle-Millsite-Hancock drainage route, the County discovered a driveway culvert near Spirit Lake Road which was crushed and impeding flow. The evidence was unclear and contradictory as to the size of the culvert. Petitioner's evidence suggested that it consisted of a 24-inch pipe while evidence presented by the County and by SWFWMD suggested that it was a 56-inch by 36-inch arched pipe culvert. It is found that the latter evidence was more persuasive. On February 25, 1998, the County removed the crushed arched pipe culvert at Spirit Lake Road and replaced it with two 48-inch diameter pipes to allow water to flow through the system. The replacement of this structure did not constitute ditch maintenance, and it required a SWFWMD ERP. However, no ERP was obtained at that time (although SWFWMD was notified prior to the activity). (One of the eight specific construction items to be authorized under the subject ERP is the replacement of this culvert.) Old Florida Plantation, Ltd. (OFP) property also experienced flooding during February 1998. OFP's property is situated along the eastern shore of Lake Hancock, and the Eagle- Millsite-Hancock drainage system historically has flowed across the property before entering Lake Hancock. In the 1950's and 1960's, the property was mined for phosphate. The mining process destroyed the natural vegetation and drastically altered the soils and topography, resulting in the formation of areas of unnaturally high elevations and unnaturally deep pits that filled with water. OFP purchased the property from U.S. Steel in 1991. The next year OFP initiated reclamation of the property, which proceeded through approximately 1998. In 1996, OFP applied to the County for approval of a development of regional impact (DRI). OFP blamed the flooding on its property in 1998 on the County's activities upstream, claiming that the property had never flooded before. But upon investigation, the County discovered a 48-inch diameter pipe on OFP property which, while part of OFP's permitted drainage system, had been blocked (actually, never unopened) due to OFP's concerns that opening the pipe would wash away wetlands plants recently planted as part of OFP's wetland restoration efforts. With OFP and SWFWMD approval, the County opened this pipe in a controlled manner to allow flowage without damaging the new wetlands plants. Following the opening of this blocked pipe, OFP property upstream experienced a gradual drop in flood water levels. When the water level on OFP's property stabilized, it was five feet lower and no longer flooded. Nonetheless, OFP continues to maintain not only that the County's activities upstream caused flooding on OFP property but also that they changed historic flow conditions. This contention is rejected as not being supported by the evidence. Not only did flooding cease after the 48-inch pipe on OFP's property was opened, subsequent modeling of water flows also demonstrated that the County's replacement of the crushed box culvert at the driveway on Spirit Lake Road as described in Finding 8, supra, did not increase flood stages by the time the water flows into the OFP site and did not cause flooding on OFP property in 1998. (To the contrary, OFP actions to block flows onto its property may have contributed to flooding upstream.) On October 6, 1998, the County entered into a contract with BCI Engineers and Scientists to initiate a study on the Eagle-Millsite-Hancock drainage system, identify options for alleviating flooding along the system and prepare an application for an ERP to authorize needed improvements to the system. Prior to the County's submittal of an ERP application, SWFWMD issued a conceptual ERP to OFP for its proposed wet detention surface water management system to support its proposed DRI on the OFP property. OFP's conceptual permit incorporated the Eagle-Millsite-Hancock drainage system and accommodated off-site flowage into the system. Before submitting an ERP application to SWFWMD, the County had communications with representatives of OFP concerning an easement for the flow of the drainage system through OFP property. In March 1999, the County reached an understanding with OFP's engineering consultant whereby OFP would provide the County with an easement across OFP lands to allow water to flow through to Lake Hancock. In turn, the County would: construct and pay for a control structure and pipe east of OFP to provide adequate flowage without adversely affecting either upstream or downstream surface waters; construct and upgrade any pipes and structures needed to convey water across OFP property to Lake Hancock; and provide all modeling data for OFP's review. The ERP Application Following completion of the engineering study, the County submitted ERP Application No. 4419803.000 for a Standard General ERP to construct improvements to the Eagle-Millsite- Hancock drainage system on August 18, 1999. Eight specific construction activities are proposed under the County's project, at various points along the Eagle- Millsite-Hancock drainage system as follows: 1) Add riprap along channel bottom; 2) Modify culvert by replacing 56-inch by 36- inch arch pipe by two 48-inch pipes (after-the-fact, done in 1998, as described in Finding 8, supra); 3) Add riprap along channel bottom; 4) Add box, modify culvert by replacing existing pipe with two 48-inch pipes, add riprap along channel bottom; 5) add riprap along channel bottom; 6) Add weir, modify culvert by replacing existing 24-inch pipe with two 48-inch pipes, add riprap along channel bottom; 7) Add box and modify culvert by replacing existing 24-inch pipe with two 48-inch pipes; 8) Modify existing weir. Under the County's application, construction activities Nos. 6, 7, and 8 would occur on OFP property. In addition, it was proposed that surface water would flow across OFP's property (generally, following existing on-site drainage patterns), and it was indicated that flood elevations would rise in some locations on OFP's property as a result of the improvements proposed in the County's application. (Most if not all of the rise in water level would be contained within the relatively steep banks of the lakes on OFP's property--the reclaimed phosphate mine pits.) In its application, the County stated that it was in the process of obtaining easements for project area. As part of the ERP application review process, SWFWMD staff requested, by letter dated September 17, 1999, that the County clarify the location of the necessary rights-of-way and drainage easements for the drainage improvements and provide authorization from OFP as property owner accepting the peak stage increases anticipated in certain OFP lakes as a result of the County's proposed project activities. On September 28, 1999, OFP obtained a DRI development order (DO) from the County. In pertinent part, the DRI DO required that OFP not adversely affect historical flow of surface water entering the property from off-site sources. Historical flow was to be determined in a study commissioned by the County and SWFWMD. The DO appeared to provide that the study was to be reviewed by OFP and the County and approved by SWFWMD. Based on the study, a control structure and pipe was to be constructed, operated and maintained by the County at the upstream side of the property that would limit the quantity of off-site historical flow, unless otherwise approved by OFP. OFP was to provide the County with a drainage easement for this control structure and pipe, as well as a flowage easement from this structure, through OFP property, to an outfall into Lake Hancock. The DO specified that the flowage easement was to be for quantitative purposes only and not to provide water quality treatment for off-site flows. The DO required OFP to grant a defined, temporary easement prior to first plat approval. In its November 11, 1999, response to SWFWMD's request for additional information, the County indicated it would obtain drainage easements and that it was seeking written acknowledgment from OFP accepting the proposed increases in lake stages. During the ERP application review process, the County continued efforts to obtain flowage easements or control over the proposed project area and OFP's acknowledgment and acceptance of the increase in lake stages. At OFP's invitation, the County drafted a proposed cross-flow easement. But before a binding agreement could be executed, a dispute arose between OFP and the County concerning other aspects of OFP's development plans, and OFP refused to enter into an agreement on the cross- flow easement unless all other development issues were resolved as well. On August 4, 2000, in response to SWFWMD's request that the County provide documentation of drainage easements and/or OFP's acceptance of the increased lake stages on OFP property, the County submitted a proposed and un-executed Perpetual Flowage and Inundation Easement and an Acknowledgment to be signed by OFP accepting the increased lake stages. On August 7, 2000, the OFP property was annexed by the City of Bartow (the City). On October 16, 2000, the City enacted Ordinance No. 1933-A approving OFP's DRI application. The City's DO contained essentially the same provision on Off- Site Flow contained in the County's DO. See Finding 18, supra. However, the City's DO specified that the historical flow study was required to be reviewed and approved by OFP (as well as by the County and by SWFWMD). OFP has not given formal approval to historical flow studies done to date. On October 6, 2000, SWFWMD issued a Notice of Final Agency Action approving Polk County ERP No. 4419803.000. Permit Specific Condition No. 7 provides that "all construction is prohibited within the permitted project area until the Permittee acquires legal ownership or legal control of the project area as delineated in the permitted construction drawings." As a result of this permit condition, the County cannot undertake construction as authorized under the Permit until any needed easement or legal control is obtained. Precise Easement Route Approximately two months before final hearing, a dispute arose as to the precise cross-flow easement route proposed by the County. OFP had understood that the County's proposed route was based on a detailed survey. But closer scrutiny of the County's proposed route indicated that it cut corners of existing lakes on OFP's property, crossed residential lots proposed by OFP, and veered north into uplands (also proposed for residential use) in the western portion of the route before looping south and then north again to the outfall at Lake Hancock. Information subsequently revealed in the course of discovery suggested that the County's proposed route may have been based on pre-reclamation topography of OFP's property. After OFP recognized the implications of the cross- flow easement route being proposed by the County, OFP provided the County with several different alternative easement routes through the OFP property. While agreement as to the precise route has not yet been reached, the precise route of the easement is not significant to the County, as long as water can flow across OFP property to Lake Hancock and so long as the County does not have to re-locate existing ditches. Such adjustments in the location of the proposed flowage easement would not affect SWFWMD staff's recommendation for permit issuance, as long as it covered the defined project areas. In addition, OFP's current site plan is a preliminary, conceptual plan subject to change before it is finalized. Regardless what cross-flow easement route is chosen, it will be temporary and subject to modification when OFP's development plan is finalized. If the County is unable to not negotiate a flowage easement across OFP property, it could obtain whatever easement is required through use of the County's eminent domain powers. The County's acquisition of an easement to accommodate a flowage route and anticipated increased stage on OFP property gives reasonable assurance that any stage increases will not cause adverse impacts to OFP property and gives reasonable assurance that the County will have sufficient legal control to construct and maintain the improvements. Project Area The County applied for a Standard General Permit and specified a total project area of 0.95 acre. This acreage reflects the area required for actual construction and alteration of control structures and drainage ditches in the preexisting Eagle-Millsite-Hancock system. It does not reflect the entire acreage drained by that system (approximately 1,800 to 2,000 acres). It also does not reflect the area of the cross-flow easement, which the County has yet to obtain. When determining project size for purposes of determining the type of permit applicable to a project, SWFWMD staff considers maximum project area to be limited to the acreage owned or controlled by the applicant. In addition, since this is a retrofit project for improvement of an existing drainage system not now owned or controlled by the County, SWFWMD staff only measured the area required for actual construction and alteration of control structures and drainage ditches. Future easements necessary for future maintenance of the system were not included. When OFP applied for its conceptual ERP for its proposed DRI, the project area was considered to be the acreage owned by OFP. The rest of the basin draining through OFP's property to Lake Hancock (again, approximately 1,800 to 2,000 acres) was not considered to be part of the project area. Water Quantity Impacts The County's project will retrofit certain components of the same drainage system which OFP will utilize for surface water management and treatment pursuant to its conceptual ERP. Modeling presented in the County's application demonstrates that there will be some rises and some lowering of some of the lake levels on OFP's property during certain rain events. Anticipated rises are lower than the top of banks authorized in OFP's conceptual permit; hence the system will continue to function properly. While there are some differences in the County's permit application and OFP's conceptual permit application concerning modeling estimates of flow rates through OFP property, the differences are minor and are attributed to differences in modeling inputs. The County used more detailed modeling information. Any such differences are not significant. Differences in flow rates provided in the County's proposed permit and in OFP's conceptual permit do not render the permits as incompatible. If the County's permit were issued, any modeling undertaken in connection with a subsequent application by OFP for a construction permit would have to be updated to include the County's improvements to the system. This outcome is not a basis for denial of the County's permit. While the rate at which water will flow through the system will increase, no change in volume of water ultimately flowing through the drainage system is anticipated as a result of the County's proposed improvements. The increased lake stages which are anticipated to occur on OFP property as a result of the County's project will not cause adverse water quantity impacts to the receiving waters of Lake Hancock or adjacent lands. The project will not cause adverse flooding to on-site or off-site property. The project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, Florida Statutes. Water Quality Impacts No adverse impacts to water quality on OFP property are anticipated from the County's proposed drainage improvements. The project will not add any pollutant loading source to the drainage system and is not expected to cause any algae blooms or fish kills in OFP waters or cause any additional nutrient loading into OFP's surface water management systems. As reclaimed phosphate mine pits, the lakes on OFP's property are high in phosphates. Meanwhile, water quality in upstream in Millsite Lake and Eagle Lake is very good. Off-site flow of higher quality water flushing the OFP lakes will improve the water quality on the OFP site. The County's project will have no adverse impact on the quality of water in the downstream receiving of Lake Hancock (which currently has poor water quality due in large part to past phosphate mining). Upstream of OFP, the project will not cause any adverse water quality impacts and is anticipated to result in positive impacts by lessening the duration of any flooding event and thereby lessening septic tank inundation from flooding. This will have a beneficial impact on public health, safety, and welfare. Thus, there is a public benefit to be gained in having the County undertake the proposed drainage and flood control improvements now, rather than waiting for OFP to finalize its plat and construct its development project. The County's proposed improvements do not require any formal water quality treatment system. The improvements are to a conveyance system and no impervious surfaces or other facilities generating pollutant loading will be added. Upstream of OFP, the Eagle-Millsite-Hancock drainage system flows through natural lakes and wetlands systems that provide natural water quality treatment of the existing drainage basin. OFP expressed concern that the County's improvements to drainage through these areas (including the ditch maintenance already performed in 1998) will increase flow and reduce residence time, thereby reducing natural water quality treatment. But ditch maintenance does not require an ERP, and the County gave reasonable assurances that reduction in natural water quality treatment will not be significant, especially in view of the good quality of the water flowing through the system out of Eagle Lake and Millsite Lake. As a result, it is found that the County's proposed project will not adversely affect the quality of receiving waters such that any applicable quality standards will be violated. Indeed, OFP's expert consultant conceded in testimony at final hearing that OFP has no reason to be concerned about the quality of water at present. Rather, OFP's real concern is about water quality in the future. Essentially, OFP is asking SWFWMD to require the County to guarantee OFP that future development in the area will not lead to any water quality problems. Requiring such a guarantee as a condition to issuance of an ERP would go far beyond SWFWMD requirements and is never required of any applicant. Besides being speculative on the evidence in this case, future development in the area will be required to meet applicable SWFWMD water quality requirements. SWFWMD permitting required for such future development would be the proper forum for OFP to protect itself against possible future reduction in water quality (as well as possible future increase in water quantity). Environmental Impacts The drainage ditches to be improved by the County's project were originally constructed before 1984. These upland cut ditches were not constructed for the purpose of diverting natural stream flow, and are not known to provide significant habitat for any threatened or endangered species. The County provided reasonable assurance that the proposed project will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions. The functions of the wetlands and surface waters to be affected by the proposed project include conveyance, some water quality treatment, and possibly some wildlife movement or migration functions between the wetlands served by the ditches. Wetland impacts from the project consists of .63 acre of permanent impacts and .21 acre of temporary impacts, for a total of .84 acre of impact. The permanent impacts consist of the replacement of pipes with new structures in the ditches and the addition of rip rap in areas to prevent sedimentation and erosion. The proposed project's anticipated increase in the rate of flow is expected to lessen the duration of any flooding event at the upper end of the drainage system, and at the downstream end is expected to create a subsequent rise in some of the lakes and storage areas on the OFP property during certain rain events. The anticipated rise in some of the reclaimed lakes on OFP property is not anticipated to have any adverse impact on the functions that those surface waters provide to fish, wildlife or any threatened or endangered species. The reclaimed lakes subject to rise in water levels for certain rain events are steep-sided and do not have much littoral zone, and little, if any, loss of habitat will result. The County's application provides reasonable assurance that the anticipated stage increase in affected wetlands or surface waters will not adversely affect the functions provided by those wetlands or surface waters. The County provided reasonable assurance that the proposed project will not violate water quality standards in areas where water quality standards apply, in either the short- term or the long-term. Long-term effects were addressed in Finding 43-51, supra. Short-term water quality impacts anticipated during the construction of the proposed improvements will be addressed through the use of erosion and sediment controls. The proposed project also will not create any adverse secondary impacts to water resources. The project will not cause any adverse impacts to the bird rookery located to the north on OFP property. The project will not cause any adverse impacts to the bass in OFP's lakes, a concern expressed by OFP relatively recently. To the contrary, since the project will improve water quality in OFP's lakes, the impact on OFP's bass is expected to be positive. OFP raised the issue of a bald eagle nesting site located on its property. The evidence was that a pair of bald eagles has built a nest atop a Tampa Electric Company (TECO) power pole on the property in October of each year since 1996. Each year the pair (which is thought to be the same pair) has used a different TECO power pole. Most of the nests, including the one built in October 2000, have been on poles well south of any construction proposed under the County's ERP and clearly outside of the primary and secondary eagle management zones designated by the U.S. Fish and Wildlife Service. But one year, a nest was built on a pole farther north and possibly within the secondary eagle management zone. OFP presented testimony that U.S. Fish and Wildlife would require OFP to apply for an "incidental take" in order to build homes within the primary eagle protection zones around any of the four poles on which eagles have built nests since 1996; timing of construction of homes within the secondary protection zones may be affected. Even accepting OFP's testimony, there was no evidence as to how U.S. Fish and Wildlife would view construction of the County's proposed drainage improvements on OFP property within those zones. In addition, the evidence was that, in order to accomplish its DRI plans to build homes in the vicinity of the TECO power poles that have served as eagle nests in recent years, without having to apply for an "incidental take," OFP plans to place eagle poles (more suitable for eagle nests than power poles, which actually endanger the eagles) in another part of its property which is much more suitable habitat in order to encourage the eagles to build their nest there. The new location would put the County's proposed construction activity far outside the primary and secondary eagle management zones. Other Permitting Requirements The County's proposed project is capable, based on generally accepted scientific engineering and scientific principles, of being effectively performed and of functioning as proposed. The County has the financial, legal, and administrative capability of ensuring that the activity proposed to be undertaken can be done in accordance with the terms and conditions of the permit. No evidence was presented by Petitioner that the Project will cause adverse impacts to any work of the District established under Section 373.086, Florida Statutes. No evidence was presented by Petitioner that the project will not comply with any applicable special basin or geographic area criteria established under Chapter 40D-3, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Standard General Environmental Resource Permit No. 4419803.000. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 17th day of September, 2001. COPIES FURNISHED: Linda L. McKinley, Esquire Polk County Attorney's Office Post Office Box 9005, Drawer AT01 Bartow, Florida 33831-9005 Gregory R. Deal, Esquire 1525 South Florida Avenue, Suite 2 Lakeland, Florida 33803 Margaret M. Lytle, Esquire Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and a water quality certificate to allow petitioner to complete its planned residential community on and adjacent to Marco Island, Florida. the petitioner expended in excess of $100,000.00 in preparing the permit application. The proposed project involves some 4,000 acres of development on approximately 17,000 acres of land owned by the petitioner. On November 28, 1979, after seeking and obtaining additional information from the petitioner, the respondent issued its notice of "intent to deny" the permit application. The Department claims jurisdiction over the proposed project pursuant to Chapter 253 and 403, Florida Statutes, and Section 17-4.28 and 17-4.29, Florida Administrative Code. The nine page "intent to deny" specifically cites Rule 1704.28(3), Florida Administrative Code, and concludes that state water quality standards will be violated. Beyond that regulatory citation, the "intent to deny" does not specify by rule number which of the water quality standards the Department feels would be violated by the proposed project. However, the "intent to deny" does conclude that the area proposed for development will include "approximately 1,500 acres of uplands and approximately 2,600 acres of waters of the State, submerged lands of waters of the State, and transition zone of submerged lands of waters of the State. In discussing the overall impact from the project as a whole, the respondent notes that the intertidal shoreline areas are utilized by wading birds and that the mangrove tidelines provide a vital habitat for fish and wildlife. In discussing the specific work areas, the respondent concludes that the destruction of the extensive freshwater marsh system would eliminate a significant habitat intensely utilized by a wide variety of birds. The "intent to deny" further concludes that the development of the proposed work area would be expected to violate state water quality standards for dissolved oxygen. The respondent's "intent to deny" is the subject of a pending administrative proceeding between these same parties in Case Numbers 79-2471 and 80-683. In those proceedings the petitioner is contesting, inter alia, the respondent's application of the rules under challenge in this proceeding. Although petitioner challenges other rules of the Department, the testimony adduced at the hearing concerned only those rules relating to water quality standards; to wit: Rules 17-3.05, 17-3.08(4) and 17-3.09(3). Dissolved oxygen concentrations are an important gauge of the existing quality of water and the ability of a water body to support a well-balanced aquatic animal life. A concentration of at least 5.0 parts per million (or milligrams per liter) is needed to support a well-balanced fish population, and a concentration of 4.0 mg/1 is about the lowest which will support a varied fish population. There are numerous natural factors which affect the concentration of dissolved oxygen in surface water bodies. Such factors include physical transfer between the water and the atmosphere (aeration), the limit of a water body's ability to absorb oxygen (saturation value), the amount of oxygen used to decompose dead material, photosynthesis of aquatic plants and the actual vertical location of the sampling. These factors are influenced by many variables, such as wind, temperature, stratification, salinity, the season of the year, the time of the day, rainfall, water clarity, mixing and flushing. The level of dissolved oxygen can vary significantly in the same body of water during one twenty-four hour period. A balance of dynamic, natural processes causes dissolved oxygen levels to vary extensively in different water bodies and within the same water body during different times of the day and during different seasons of the year. Some of the water bodies in the Marco Island area contain dissolved oxygen values below 4.0 parts per million (or milligrams per liter) during at least a portion of a twenty-four hour period. This is due to natural, as opposed to manmade, causes. A water body containing levels of dissolved oxygen less than 4.0 milligrams per liter does not necessarily indicate a discharge of contaminants into that water body. The parties have stipulated that the Final Order rendered by the Department of Environmental Regulation in the case of Capeletti Brothers, Inc. v. Dept. of Environmental Regulation, Case No. 79-1602R (July 7, 1980), accurately represents the Department's position with respect to its authority to consider wildlife and other biological factors in reviewing permit applications pursuant to Chapter 403, Florida Statutes.
