Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact By joint application to the Respondent Department of Environmental Regulation ("Department") and the Department of the Army, dated February 7, 1979, American Engineering, Inc., as authorized agent for the Petitioner CNC Enterprises, Inc., sought the issuance of a permit to excavate two plugs in an artificial canal system which if removed would connect the canal system to Double Hammock Creek and the Gulf of Mexico. On March 8, 1979, a completeness summary was sent to CNC in care of Clifford Wendell, President of American Engineering, Inc., advising him that the application was incomplete and requiring additional information including aerial photographs, cubic yardage figures for excavation, an additional plan view and vicinity map, a cross-section drawing, a hydrographic survey and reasonable assurances that Rule 17-4.28(3), Florida Administrative Code, would not be violated. The Applicant was also informed that the project was subject to Chapters 253 and 403, Florida Statutes. Following the submission of the additional information, a field appraisal of the site was conducted by DER staff on August 16, 1979. On October 1, 1979, the Department received a letter from Wendell indicating that additional water quality and hydrographic test information had been collected by Conservation Consultants, Inc., a private environmental consulting firm employed by CNC for this project. On November 5, 1979, the Department notified the Applicant's agent of its intent to deny the requested permit. The Department's letter of intent cited as grounds for denial the creation of stagnant areas of water, interference with the conservation of fish, marine life, wildlife and other natural resources, reduction in the capability of habitat to support a well balanced fish and wildlife population and impairment of the management or feasibility of fish and wildlife resources. The intent to deny does not list the absence of a hydrographic survey as a ground for the denial of the application. An informal meeting was held in Tallahassee, Florida, on January 30, 1980. At the meeting it was agreed that Vince Conrad, President of CNC, would be provided a list of consultants by the Department who could provide additional water quality data. A list of consultants was provided by the Department on February 4, 1980. On April 25, 1980, a letter from Wendell was received by the Department which contained a report dated April 21, 1980, prepared and submitted by Drs. & P.M. Dooris and entitled, "An Evaluation of Selected Conditions in the Westport Subdivision Canal System and in Double Hammock Creek, Pasco County, Florida." The report presented certain water quality and physical measurements but did not purport to be a hydrographic survey. The Drs. Dooris were hired by Wendell, as consultants on this project and had been recommended to him by the former Secretary of the Department during an informal meeting in Tampa on this project. The History And Physical Characteristics Of The Artificially Created Canal System The artificial canal system in question was dredged in the early 1960's. It consists of a series of six north/south finger canals connected by a main east/west connector canal to Double Hammock Creek. The Intervenors own homes or property on the finger canals in a subdivision known as Westport Homes, Pasco County, Florida. The plugs or dikes are located at the mouth of canal number 3 (the isolated finger canal) and in the approximate center of the long connecting canal as identified in Petitioner's Exhibit 1. The portion of the long connecting canal west of the plug is navigable and flows directly into Double Hammock Creek, a natural saline body of water which connects directly into the Gulf of Mexico. The main canal east of the plug is perpendicular to and connects directly with three north/south finger canals. Construction on the canals was initiated in the early 1960's by Henry Dingus, the owner of the property prior to CNC. When the Petitioner purchased the property in 1972, the portion of the long connecting canal west of the plug, three finger canals and a portion of the isolated canal had been constructed. In 1972, the Petitioner widened and deepened the isolated finger canal. To accomplish this, the Petitioner totally plugged the connection to the main canal, which had been partially opened via a small drainage system, and pumped water from the isolated canal into the main canal. The Petitioner also constructed the portion of the canal east of the plug and the three finger canals connecting into the east/west canal. The canals east of plug are connected to Double Hammock Creek and the Gulf of Mexico via a mosquito creek or canal. This creek, which is approximately 15 feet wide and 2-3 feet deep, flows through a salt marsh to Double Hammock Creek. It is tidal and produces a range of approximately 1.5 feet in the main canal. With the exception of the isolated finger canal, the system is not actually closed since waters east and west of the plug in the main canal are tidal and connect to waters of the state. The Department's predecessor agency, the Trustees of the Internal Improvement Trust Fund, first became aware of this project in 1973 when the site was inspected by Richard Clutter of the Trustees' staff. Clutter informed Conrad that permits would be needed for work not done in upland areas. At that time no work was being done below the mean high water line and no evidence of dredging to connect the old canals to Double Hammock Creek was present. The, Trustees considered these canals to be upland canals, because it was the Trustee's policy at that time not to extend the mean high water line up such canals. At no time prior to 1975 was Conrad either directed to cease construction or told that a connection to the mosquito canal could not be made. He was repeatedly informed, however, that a permit would be required if any connection to state waters was contemplated. In June of 1976, Department inspectors visited the site and discovered that one of the plugs had been breached. Conrad was notified on July 9, 1976, that the breach was a violation of state law and the rules of the Department. Approximately one year later, the Department again notified Conrad that the plug separating the main canal had been breached. Conrad informed the Department that due to the actions of neighbors who tampered with the structure, he had expended personal funds to restore the dike several times. The Department was apparently unaware until sometime in 1976 that the canal system east of the plug connected to navigable state waters via the mosquito canal. In 1975, the Department did not attempt to halt construction of the canal system since it was relying on its erroneous assumption that the system was "self-contained." Since there is a tidal exchange of waters entering the system on both sides of the plug in the main canal, Petitioner and Intervenors are attempting to connect two existing water bodies which are presently connected directly and indirectly to Double Hammock Creek and the Gulf of Mexico. The Dooris Report And Dissolved Oxygen At the final hearing, the Petitioner presented the expert testimony of Professor Patricia Dooris, Ph.D. and her husband George Dooris, Ph.D., regarding a study they completed on the removal of the plug in the main connecting canal. In the Dooris Report, they defined the problem involved in this proceeding as follows: It is believed by some that the water in the canal system east of the eastern dike is Unacceptable for discharge to Class III waters. The problem, then, is to assess the current condition in the canal system and to determine whether dike removal would be a beneficial or detrimen- tal influence upon the remaining natural environment in the area. (Petitioner's Exhibit 6, at 2-3) The data contained in the Dooris Report and the testimony of the Doorises establish the following conclusions entitled "Expected Consequences of Dike Removal": THOSE AFFECTING THE CANAL SYSTEM Dike removal will enhance the already existing connection between the eastern canal system and Double Hammock Creek. Water from the Creek will have direct access to the entire canal system and will bring about a more uniform distri- bution of dissolved oxygen in the canals, particularly at low tide. Water levels in the eastern canal system will fluctuate normally, encouraging the waterward migration of marginal vegetation on the north bank of the main canal. Additional vegetation will stabilize canal banks and provide habitat for fish and in- vertebrates. The value of allowing near- normal water level fluctuations in any water cannot be over emphasized. The long term stabilization of water levels has proven to result in a degradation of the resource, and it should be avoided. THOSE AFFECTING DOUBLE HAMMOCK CREEK A connection already exists between the eastern half of the canal system and Double Hammock Creek, and complete dike removal would only augment the connection. Water quality in the canal is acceptable in terms of BOD, nitrate-nitrogen, tur- bidity, chlorophyll a or o-phosphate as reported both by the Department and by a private consulting firm in previous studies. Therefore, dike removal would not add un- usual quantities of undesirable substances to water in the Creek. While low DO concentrations may have been recorded in the past, many factors, in- cluding the presence of the dike itself, contribute to the condition. Several factors are of natural origin, such as temperature, wind action and can be ex- pected to act on completely natural systems as well. The conclusion to be drawn is that, as in any water body in Florida, one can expect wide variability in DO con- centrations on a seasonal and daily basis. Concentrations below Class III criteria do occur in waters ordinarily considered of good quality. There is a strong possibility that low saline/low DO ground waters enter the canal system and at times may contri- bute to oxygen depressions. The overriding difference between the canal system east and west of the plug is the magnitude of their connection to Double Hammock Creek. All of the differences be- tween these systems are related to the de- gree of tidal exchange in the two systems. Therefore, the major impediment to flow in the main canal, the earth dike, is itself a large part, if not the chief part, of any problem in the eastern canal system. (Petitioner's Exhibit 6, at 12-13). The Dooris Report and the Doctors' expert testimony demonstrated that the dikes should be removed for the following reasons: The Intent to Deny the permit by the State was on the basis that water behind the dikes should not be allowed to enter State waters. This rationale is groundless in that a connection already exists by way of the mosquito control canal running into Double Hammock Creek. While flow of water may be limited by the size and elevation of the control canal, there is no barrier to movement of wildlife. There is little difference in dissolved oxygen concentration in the water on both sides of the dike. There are low dissolved oxygen con- centrations in Double Hammock Creek. Sediment depths were extremely variable on both sides of the dike, with greatest accumulation on the west portion of the dike which is connected to Double Hammock Creek. The dike itself is a major contributor to any problem on the eastern canal sys- tem as it acts as an impediment to flow circulation. (Petitioner's Exhibit 6) An extensive investigation and review of environmental conditions in Double Hammock Creek prepared by Jones, Edmunds and Associates for the Respondent and presented to the Pasco County Commission on March 15, 1981, confirms the Dooris' conclusion that dissolved oxygen concentrations in Double Hammock Creek naturally fluctuate above and below the standards for Class III waters. According to the Jones Study, dissolved oxygen concentrations in the Gulf of Mexico, Double Hammock Creek and the artificial canal system measured during November and December, 1980, did not differ significantly and many of the readings noted in the Jones Study fluctuate above and below state standards during different times of the year. The artificial canal station identified as WPI in the Study fared as well as some sampling stations located in areas closer to the Gulf. With respect to the isolated finger canal, each test conducted by the Department and the Petitioner indicated that the dissolved oxygen in that canal exceeded state standards and readings of dissolved oxygen in other parts of the canal system and dissolved oxygen levels in Double Hammock Creek. 1/ The Department sampled the eastern point of the canal system in 1979. While it took samples of mid-depth and bottom samples in the east section, the Department did not take corresponding samples in the western section of the system or Double Hammock Creek. The samples taken were in a "worst case" situation in early morning when dissolved oxygen levels are often lowest. In 1976, however, the Department took surface, mid-range and bottom-depth samples in both sections of the system and all exceeded state standards except for one reading taken in Double Hammock Creek. Dissolved oxygen samples taken in 1979 indicated that the surface readings of dissolved oxygen in the eastern end of the main canal were higher than the surface readings taken in Double Hammock Creek. No mid-depth or bottom-depth comparisons were made of dissolved oxygen because no mid- or bottom-depth values were obtained in the western portion of the canal system or Double Hammock Creek. Thus, no comparable comparison can be made of dissolved oxygen levels on each side of the main plug. Evidence Relating To The Department's Standards For Bethnic Oxygen Demand, Oil And Greases In addition to dissolved oxygen, the Dooris Report also sampled sediment in the canals. It was determined that the sediment was neither flocculent nor easily disturbed. Distribution was patchy and there was no substantial bethnic oxygen demand (BOD) exerted as far down as four-five feet in the canal. Higher BOD readings would be expected at that depth if highly organic sedimentary material were in the water at or near the bottom of the canals. As established by the unrebutted testimony of Professor Dooris, the BOD levels in the canal system state standards. During her sampling of the canal system, no oils, greases or other deleterious substances were observed on the waters. This was corroborated by the Intervenors who testified that they had never seen any oil or grease on the surface and Bill Kutash who characterized the sheen which he observed on the surface water as "insignificant." Although Dr. Dooris noted that at some of the sampling stations a smell of hydrogen-sulfide was present when the canal bottom was disturbed by a probe, this condition is not particularly unusual in a natural water body and indicates low levels of oxygen at the bottom of the system. The Department did not take any quantitative measures of dissolved or emulsified oils or greases in the canals or Double Hammock Creek. Likewise, no one testifying on behalf of the Respondent stated that there was such visible or undissolved oil on the waters so as to cause "taste or odor or otherwise interfere with the beneficial use of the water." The Department did not present any evidence that the quantitative levels for lead, phosphate, silver, phosphorous, or any other chemical listed in Rule 17-3.121, Florida Administrative Code, was not being met in the canal system. Similarly, no evidence was presented to show that the waters in the system are subject to any contaminants, odors, color or other condition in such a degree as to create a nuisance. Evidence Relating To The Department Standards For Fish. Wildlife and Lower Level Invertebrates The Intervenors, who have lived on the canal for a number of years and observed the canal system and surrounding areas, testified that a substantial diversity of marine life exists in the canals. The marine life includes fish, such as snook, red snapper, sea trout and pen fish, and crabs and wildlife. The Department discovered low levels of benthic macroinvertebrates and lower forms of marine life in the eastern section of the canal. According to Dr. P. Dooris, opening the system to a greater degree to Double Hammock Creek would promote greater diversity of animal life. This observation is supported by the Jones Study, Intervenor's Exhibit 10 which found a large number of benthic macroinvertebrates and marine life in the western section of the system. The Jones Report at Table 3.21, compares benthic macroinvertebrates found in Salt Springs Run and Double Hammock Creek with other estuaries in Southwest Florida. From the data in the table, it can be concluded that benthic macroinvertebrates vary greatly in quantity and diversity depending upon the time of the year and the conditions under which the samples were taken. Table 3.17 of the Jones Study reflects a sampling of benthic macroinvertebrates collected from various stations in Double Hammock Creek, the Gulf of Mexico and the canal system west of the main plug. The Study revealed that benthic macroinvertebrates were present in the canal system although to a lesser extent than those present at the other sampling stations. According to Dr. P. Dooris, the removal of the plug would encourage vegetation, creating a better environment for fish and invertebrates. The main plug is limiting the free entry and exit of fish and benthic macroinvertebrates in the eastern portion of the canal. Additionally, the main plug acts as a bridge to the marsh area to the north which has been set aside from development. Limiting public access to this area by removal of the plug would provide a more secure and improved environment for the fish and wildlife in the marsh. Removal of the main plug would encourage greater mixing of the water and flushing of the system. If the plug is not removed, the canal system would slowly deteriorate and could stagnate. The flushing action and residence time in the canal would be enhanced if the figuration of the canals was improved. They are presently deep and relatively straight sided which, when combined with the shallower entrance to the main canal, acts as a hinderance to mixing and flushing. The residence time of the water in the eastern canal section is longer than that in the western system. Presumably, this is due to the western section of the main canals direct connection to Double Hammock Creek and results in higher degrees of flushing in this section. The Intervenor's Assertion That Denial Of The Permit Application Constitutes A Taking and/or The State Should Be Estopped From Refusing To Issue A Permit At the final hearing, the Intervenors presented evidence that if the canals began to degrade and stagnate, the value of canal property would decrease and could become worthless to some residents. Based on this testimony, the Intervenors assert that they have been denied due process if the Department fails to issue the requested permit, thereby, taking their property without just compensation. However, even assuming Intervenors' worst case situation, an option which would be available to the residents, to alleviate a stagnant water problem would be to fill the canals. Moreover, the actions of the state or lack thereof in this case is not the proximate cause of the residents problem. The developer, by proceeding on his own after being placed on notice of permitting requirements, assumed any risk associated with not providing what had been promised. Additionally, the Department's failure (1) to require a permit to construct the canals through legal proceedings, (2) to inform Conrad that he could not connect the canals to state waters, (3) to inform the residents of the situation with the canals and/or (4) to refer the developer to the Florida Land Sales Board, are asserted as a basis for imposing an estoppel against the State in this case. While it is true that some of the Intervenors bought their homes based on advertising and representations of "gulf access", insufficient evidence was presented to show that the state played a role in this misrepresentation. Unfortunately, the Applicant advertised the property as "gulf access" in the absence of any qualification such as "subject to permitting" which would have protected his own interest and placed respective purchasers on notice. More disturbing, however, is the Intervenors estoppel argument concerning a meeting between Representative Ron Richmond, the former Secretary of the Department and others. At the meeting, the former Secretary informed those present that the only reason that the main plug was maintained was to contain effluent that was being dumped from a nearby sewage treatment system and if the sewage problem could be solved and it could be proved that the canal was open prior to the sewage problem, then the plug could be removed. Following the meeting, Representative Richmond believed that the Department had no problem with the main plug but objected to its removal to keep leverage on the small plug. The former Secretary eventually denied the permit requested since the Department did not believe that the isolated canal was ever open. Thereafter, interested parties were invited to view aerial photographs from 1974 which show the two plugged areas closed. Although the sewage treatment problem was eventually solved and effluent discharge presumably has stopped, no authorization for the main plug's removal was granted. This, however, is not sufficient to demonstrate an estoppel. Regardless of what may have been represented by the former Secretary, the problem with sewage discharge was not the only factor which by law was required to be considered by the Department. If after the sewage problem was solved other conditions were found to be present which were prohibited under state law, no permit could be issued. The sewage problem would have been required to be solved regardless of the plug and its removal is insufficient to establish an estoppel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner CNC Enterprises, Inc., for a permit to excavate two plugs in an artificially created canal system in the Westport subdivision be granted subject to the following conditions concerning the removal of the plug from canal #3, the isolated finger canal: (1) that prior to removal, a scientifically acceptable monitoring program be established to evaluate the impact on the entire system of opening the isolated canal and (2) prior to removal the parties agree that if significant degradation were detected as a result of opening the isolated canal, its dike would be closed subject to being reopened when the canal was appropriately modified, if possible, to limit its negative impact on the entire system. Additionally, Petitioner must utilize equipment including, but not limited, to turbidity curtains to keep turbidity at a minimum and any spoil must be deposited in upland areas away from the project site. DONE and ORDERED this 24th day of May, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
Findings Of Fact By application filed on October 29, 1980, Respondent/Applicant, Harvey B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981. DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981. COPIES FURNISHED: Ernon N. Sidaway, III, Esquire Post Office Box 3388 Fort Pierce, Florida 33454 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Edward B. Galante, Esquire Suite 310 Florida National Bank Building 301 East Ocean Boulevard Stuart, Florida 33494
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
Findings Of Fact The West Coast Regional Water Supply Authority (Authority) is authorized and obligated to acquire water and water rights, store and transport water, and deliver and sell water to its member governments for public use. The Authority exists pursuant to Sections 163.01 and 373.1962, Florida Statutes, and an interlocal agreement executed October 25, 1974, by the "member governments" which include the Cities of St. Petersburg and Tampa, and Pinellas, Pasco and Hillsborough Counties. The City of St. Petersburg is a member government of the Authority. St. Petersburg owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pinellas County (Pinellas) is a member government of the Authority. Under conditions experienced during the rupture of defective pipelines, Pinellas' water utility received water from the facilities at issue in this proceeding. The defective pipeline is still in use and Pinellas may again require water from these wellfields if another rupture occurs. The Southwest Florida Water Management District (District) is charged with the regulation of consumptive water use in west-central Florida, including all areas relevant to this proceeding. The District operates pursuant to the authority of Section 373.069, Florida Statutes. Hillsborough County (Hillsborough) is a member government of the Authority. Hillsborough owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pasco County is a member government of the Authority but does not receive water from the facilities at issue in this proceeding. The South Pasco wellfield is located within the boundaries of Pasco County. All parties have standing to participate in this proceeding. THE WELLFIELDS The South Pasco wellfield is located in southern Pasco County and is owned and operated by St. Petersburg. The South Pasco wellfield has been operating since 1973. Until 1977, the South Pasco wellfield produced approximately 15 million gallons per day (mgd) of water. The South Pasco wellfield was first permitted by the District in 1978. The permit was renewed in 1982. The current permit allows an annual average daily withdrawal rate of 16.9 mgd and a maximum daily rate of 24 mgd. The permit also requires that withdrawals from this field be balanced with the withdrawal levels of the Section 21 and Cosme- Odessa wellfields. The South Pasco wellfield is currently providing approximately 12 mgd to the Authority. St. Petersburg applied to renew the South Pasco permit on August 18, 1992. The application to renew the South Pasco wellfield was deemed complete by the District on April 28, 1994. No increase in the South Pasco wellfield maximum water withdrawal rate is being sought by the Petitioners. The Section 21 wellfield is located in northwest Hillsborough County. The Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Section 21 field has been operating since 1963. From the initiation of pumping through 1970, withdrawals varied between 10 and 18 mgd. The Section 21 wellfield was initially permitted by the District in 1976. The 1976 permit authorized the withdrawal of an annual average rate of 18 mgd and a maximum daily withdrawal rate of 22 mgd. The Section 21 wellfield currently operates under a permit issued in 1984. The permit effectively authorizes withdrawal of an annual average daily rate of 12 mgd and a maximum daily withdrawal rate of 22 mgd. The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Section 21 wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Section 21 permit on August 18, 1992. The applications to renew the Section 21 permit were deemed complete by the District on April 28, 1994. No increase in the Section 21 wellfield maximum water withdrawal rate is sought by the Petitioners. The Cosme-Odessa (Cosme) wellfield is located in northwest Hillsborough County, and like the Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Cosme wellfield has been operating since the early 1930's. At various times withdrawal rates at the Cosme field have neared 20 mgd. The Cosme wellfield was initially permitted by the District in 1976. The 1976 permit authorized the annual average daily withdrawal of 19 mgd and a maximum daily withdrawal of 22 mgd. The Cosme wellfield currently operates under a permit issued in 1984. The current permit authorizes an annual average daily withdrawal of up to 12 mgd and a maximum daily withdrawal of 22 mgd The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Cosme wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Cosme permit on August 18, 1992. The applications to renew the Cosme permit were deemed complete by the District on April 28, 1994. No increase in the Cosme wellfield maximum water withdrawal rate is sought by the Petitioners. The Northwest Regional Hillsborough wellfield (NWRHWF) is comprised of a vaguely linear series of wells located in northwest Hillsborough County and owned by the Authority. There is no actual Northwest Hillsborough "wellfield." The NWRHWF was initially permitted in 1984 for 8.8 mgd annual daily average and 18.4 maximum daily rate. The NWRHWF began production in the mid-1980's at a rate of approximately 8 mgd. The field currently produces close to 8.8 mgd, the maximum permitted withdrawal. The Authority applied to renew the NWHRWF permit May 19, 1994. Also included within the "wellfield" by the current permit application are two wells owned by Hillsborough County and operated by the Authority. The two wells are located at the Manors at Crystal Lake subdivision. The application for the Manors permit renewal seeks to combine the existing Manors permit with the NWRHWF and to allow the Authority to accept responsibility for the collection of wells. The Manors at Crystal Lake wellfield provide about .2 mgd to a residential subdivision. They are not in the vicinity of the NWRHWF. There are no common withdrawal or distribution facilities shared by the Manors at Crystal Lake wells and the NWHRWF. Hillsborough apparently intended to shed responsibility for the Manors wells and did not intend to be a co-permittee for either the Manors wells or the NWHRWF. Hillsborough specifically notified the District that the Authority would assume responsibility for the permitting of the Manors wells and that Hillsborough was withdrawing from the application process. Based on the Hillsborough representation, the District combined the Manors and the NWHRWF applications for processing and review. The 9 mgd withdrawal rate sought by the Authority in the renewal permit application is the sum of the existing permitted withdrawals at the combined wellfields and does not constitute an increase in existing withdrawal rates. The combined application was deemed complete by the District on June 21, 1994. The permit renewal applications at issue in this proceeding were timely filed in accordance with applicable deadlines. The evidence establishes that it takes from seven to ten years to bring new water supply facilities from the planning stage to operation. Otherwise stated, if the wellfields in these cases were to be closed, it would take up to ten years to bring new wellfields online. Public water supply permits issued by the District are typically valid for a period of ten years. On the subject permit applications, the Petitioners seek to have 20 year permits issued. There is no evidence supporting an extension of the District's standard ten year permit term. PREVIOUS WATER USE PERMITTING Prior to 1972, water withdrawals from the subject wellfields were unregulated. Beginning in 1972, the District established "regulatory levels" for the Cosme, Section 21 and South Pasco wellfields. Regulatory levels are measurements of the water pressure in the Floridan aquifer. As the pressure falls below the regulatory minimum, water withdrawals are restricted. Additional requirements were intended to balance the withdrawals from the three wellfields, an attempt to distribute the effects of large quantity water withdrawals on the water resources of the area. Although in the current permit application, the Petitioners originally sought to have regulatory levels established by the District removed from the renewal permits, the Petitioners have since abandoned the position and now suggest that the existing permits should be renewed with applicable regulatory levels intact. Beginning in 1975, the District initiated a permitting program. The Petitioners sought permits for the South Pasco, Section 21, and Cosme wellfields. Prior to 1989, District rules provided for the award of exemptions to permittees from meeting certain environmental criteria where such exemptions were "consistent with the public interest." The effect of the "public interest" exemptions was to permit withdrawal of water at rates which would otherwise have been prohibited and to allow water withdrawals to lower the Floridan aquifer. In 1975, the District issued the Section 21 and Cosme permits, and granted the "public interest" exemptions to the permittees, allowing water withdrawals which would otherwise not have met environmental permitting requirements. The permits were valid through the end of 1980. The initial South Pasco permit, issued in 1978, anticipated that withdrawals from the wellfield would be reduced when water from the Cypress Creek wellfield became available. The permit was valid through the end of 1980. In 1982, the South Pasco wellfield received a permit valid to September 1992. In 1984, the Section 21 and Cosme wellfields received permits valid to September 1992. The NWHRWF received its initial permit valid to September 1987. In all four permits, the District granted "public interest" exemptions to the permittees from meeting certain environmental criteria. The effect of the exemptions was to allow the water withdrawals at rates which would otherwise have been prohibited and which lowered the level of the Floridan aquifer. The District asserts that the Authority was advised during the early 1980's permitting process that alternative water resources needed to be developed to provide for future demand and allow for rotational capacity in the subject wellfields. The District asserts that little progress has been made in addressing these issues. To the extent the Authority was directed in prior and somewhat vague permit conditions to consider alternative sources, the evidence establishes that the Authority has complied with the minimal directives provided by the District. NORTHERN TAMPA BAY AREA HYDROGEOLOGY In the mid 1980's, the District declared the area of Northern Tampa Bay , including the subject wellfields, to be an "area of special concern" regarding the condition of local water resources. In 1987, the District undertook a water resource assessment project to examine local water resources. In 1989, based on preliminary information from the project (the "WRAP"), the District identified the subject wellfield area as the "Northern Tampa Bay Water Use Caution Area" in recognition of environmental stress identified by the District. After rule changes in 1989, the District eliminated the rule provision which provided for the granting of exemptions to environmental requirements. The amended rules required a permittee to assume responsibility for both on-site and off-site impacts related to the water withdrawal. The District also began to consider the "cumulative" impacts of withdrawals. At about the same time as the 1989 rule changes became effective, the District adopted the "Basis of Review" which provides for procedures and additional information related to water use permit review. In 1992, the WRAP study area was expanded and became identified as the "Northern Tampa Bay Water Resource Assessment Project" (NTBWRAP). The NTBWRAP is the District's most recent attempt at determining the condition of the water resources in the area of the subject wellfields. The geology of the wellfields and of most of the surrounding area is essentially a three-layer structure. The top layer is the surficial aquifer. The bottom layer is the Floridan aquifer. Separating the two is a "confining" layer. An "aquifer" is a geological formation in which water is stored and from which water may be obtained via the drilling of wells. The movement of water through geological materials is measured as "hydraulic conductivity." The surficial aquifer is primarily made of sandy, fine- grained material. The level of water found in the surficial aquifer is what is commonly described as the "water table." Generally, the level of water found in wetlands and lakes is a rough approximation of the surficial aquifer water table. The Floridan aquifer is a porous limestone formation with visible and sometimes sizable cavities and channels. The water of the Floridan aquifer permeates the limestone and flows within the limestone cavities and channels. The cavities and channels in the limestone are referred to as "karst" features, as are sinkholes, which result from the collapse of cavities in the limestone. The subject wellfields withdraw water directly from the Floridan aquifer. The confining layer between the aquifers is primarily made of clay. The impermeability and thickness of the clay deters the movement of water between the surficial and the Florida aquifers. The potential for movement of water between the aquifers is known as "leakage." The thickness of the confining layer in the area of the subject wellfields varies considerably. In some areas, there may be an essentially intact confinement and little or no leakage. In other areas, the confining layer is thin or nonexistent, and substantial leakage occurs. For example, the formations known as "sinkholes" are generally areas of collapsed Floridan aquifer limestone formations where the confining layer can be completely breached, at least until the sinkhole fills with other material and leakage is reduced. The level to which water will rise in a well drilled to the Floridan aquifer is known as the "potentiometric level." The water level identified through multiple Floridan aquifer wells is described as the "potentiometric surface." The potentiometric surface essentially measures the water pressure of the Floridan aquifer and can vary depending on factors including water withdrawals from the aquifer. The difference between the potentiometric level of the Floridan aquifer and the water table level of the surficial aquifer is referred to as "head difference." When the potentiometric surface of the Floridan aquifer is higher than the water table of the surficial aquifer, water can flow through a breached confining layer to the surface and appear as what is commonly called an "artesian well" or "spring." Where the potentiometric surface of the Floridan aquifer is lower than the water table of the surficial aquifer, surficial water can move through a leaky confining layer to the Floridan aquifer in a process known as "recharge." Water within the Floridan aquifer can move horizontally from an area of higher potentiometric surface towards an area of low potentiometric surface, but such movement is very slow and can take many, many years. Almost all of the Floridan aquifer recharge occurs through precipitation in areas where karst features are present and where the level of the surficial water table exceeds the potentiometric surface of the Floridan aquifer, thus permitting the precipitation to defuse into the Floridan system. The evidence establishes that the area of the wellfields at issue in this proceeding is generally characterized as one of a leaky confinement layer with substantial karst features. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of ground penetrating radar tests, measurements at nested well sites, and historical observation. Additional data related to aquifer withdrawal levels and nearby well measurements further support this finding. Ground penetrating radar tests are useful in measuring the existence of karst features below ground and under water bodies. To the extent that such tests have been performed in the area of the South Pasco, Cosme-Odessa, and Section 21 wellfields, the results indicate that karst features are prevalent and indicative of a leaky confining layer between the aquifers. "Nested" wells are paired wells, one into the surficial aquifer and the other into the Floridan, which are located within close proximity to each other. Concurrent measurements of water level fluctuations can indicate a connection between the aquifers. Such measurements within the vicinity of these wellfields indicate the existence of a poor confinement between the aquifers. WELLFIELD IMPACTS ON POTENTIOMETRIC SURFACE The wells at issue in this proceeding withdraw water directly from the Floridan aquifer. The water withdrawals result in a lowering of the potentiometric surface of the Floridan aquifer. The reduction of potentiometric surface by water withdrawal is referred to as "drawdown." The greatest drawdown occurs at the site of the well and becomes reduced with distance, resulting in a "cone-shaped" impact centered around the withdrawal area. The impact is referred to as a "cone of depression" in the water level. Drawdown impact can be influenced by the location of wells, the quantity and speed of withdrawal, precipitation, and the movement of water through the aquifer ("transmissivity") and between the aquifers ("leakage.") The "cone of depression" extends outward from the withdrawal point until the effects of the withdrawal are balanced by surficial recharge and inflow from the Floridan. Drawdown impacts are estimated by the use of groundwater flow models. The models generate contour lines which approximate the extent of drawdown related to specific water withdrawals. A drawdown contour "map" is generated by application of withdrawal projections to the model. The resulting map indicates the anticipated impact of water withdrawals. As mathematical estimates, drawdown models may not accurately measure impacts of water withdrawals on aquifers, however, they provide a useful tool to direct further observation and can be corroborated by appropriate actual measurements. The primary cause of the Floridan aquifer drawdown in the vicinity of the subject wellfields is the withdrawal of water by the Petitioners in accordance with water use permits issued by the District. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of aquifer performance tests and on review of monitoring well hydrographs. Additional support for this finding is provided by the groundwater flow model data analysis offered by the District. According to the District groundflow modeling, the drawdown at the South Pasco wellfield is from nine to twelve feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from three to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Section 21 wellfield is from six to ten feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from two to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Cosme-Odessa wellfield is from four to five feet at the wellfield boundary, from two to three feet at a distance of about a mile or so from the boundary, and from one to two feet at a distance of two and a half miles from the boundary. According to the District groundflow modeling, the drawdown at the NWHRWF is from three to four feet at the linear "wellfield" approximate boundary, from two to three feet at a distance of one mile from the boundary, and from one to two feet at a distance of two miles from the boundary. Floridan aquifer recharge in the vicinity of the subject wellfields occurs by surficial water flow through the porous confining layer. WELLFIELD IMPACTS ON SURFICIAL AQUIFER, LAKES AND WETLANDS The drawdown of the Floridan aquifer results in a lowering of the surficial water table as water leaks through the marginal confining layer and into the Floridan. The lowering of the surficial water table results in a lowering of area lakes and wetlands. The process by which water from the surficial aquifer leaks into the Floridan aquifer is known as "induced recharge." Induced recharge occurs where the head difference between the aquifers is reduced by Floridan aquifer withdrawals to the point at which surficial water will leak down through the confining layer and into the Floridan aquifer system. While other factors including reduced rainfall and increased evapotranspiration can result in lowered lake and wetland water levels, the evidence in this case establishes that the primary cause of lowered lake and wetlands water levels in the vicinity of the subject wellfields is the withdrawal of water at the wellfields resulting in induced recharge from the surficial aquifer to the Floridan aquifer. The evidence further establishes that the withdrawal of Floridan aquifer water in the area of the subject wellfields has resulted in dramatically increased fluctuations in the water levels of area lakes and wetlands. Normal "day-to-day" fluctuations in local lake water levels (called "amplitude") have been greatly increased by the groundwater withdrawals. Historical data, to the extent it exists, indicates that the current lake water in the area of the wellfields fluctuates within wider ranges, and at lower levels, than reflected by prepumping data. This finding is based upon the credited testimony of the Respondents' expert witnesses and on a review of historical hydrological data admitted into the record at hearing. Although the area has experienced an abnormal period of reduced precipitation, the impact of the wellfield withdrawals has exacerbated the water level fluctuations which could otherwise be attributed to a lack of rainfall. Surficial water table reductions related to induced recharge occur over an extended period of time. The quantity of water generally contained in the surficial aquifer tends to obscure the immediate impact of Floridan aquifer withdrawal, and accordingly, aquifer performance tests are generally poor measurements of the impact of Floridan aquifer withdrawals on the surficial aquifer, but review of historical data clearly indicates the impact. The gradual reduction in the surficial aquifer water table has resulted in a corresponding reduction of water levels in lakes and wetlands. Although each lake and wetland has different hydrogeologic features, and some are more impacted by groundwater withdrawal than are others, the evidence clearly establishes that the majority of lakes and wetlands in the area of the subject wellfields are hydrologically connected to the Floridan aquifer via the connection of the surficial aquifer to the Floridan, and that the lowering of the potentiometric surface of the Floridan aquifer has resulted in lowering of the surficial water table and of lake and wetland water levels. About nine percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with lakes. Analysis of data related to lake levels at Lake Rogers on the Cosme wellfield and Starvation Lake on the Section 21 wellfield show substantial average lake level declines clearly related to the groundwater withdrawal occurring in the wellfields. Lake Rogers has declined from an average level in 1930 of 45 feet (prior to the start of withdrawals) to a level of 30 feet in 1995. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. In fact, despite a cumulative rainfall deficit during the early 1960s, the water levels around the Cosme wellfield increased during a period of time during which water withdrawal quantities were being reduced. Starvation Lake has declined from an early 1960s average of 53 feet to 46 feet in about 1995. During a period when pumping from Section 21 was at greater quantities than now, Starvation Lake declined to about 42 feet. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. During the period from late 1991 to mid 1992, the level of Starvation Lake declined by about 37 inches. An analysis of the area precipitation/evapotranspiration indicates that almost 14.4 inches of the decline are attributable to induced recharge from the lake to the aquifer. As to the South Pasco wellfield, the depth to the water table was measured in the mid 70's (after the beginning of pumping from the wellfield) at approximately five feet at the wellfield center, and three feet near the wellfield boundaries. However, one mile north of the wellfield, the depth to the water table was approximately one-tenth of a foot. Camp Lake, located immediately east of the South Pasco wellfield, has shown a decline from a 1970 level of 63 feet to a 1995 level of 57 feet, a decline which corresponds to pumping activity and the related decline in the Floridan aquifer. Water is the driving force in wetlands ecosystems. The duration of water inundation in a wetland is known as the "hydroperiod." A decline in water table levels results in a reduction of wetland hydroperiod. Water storage, wildlife viability and nutrient cycling are water dependent wetland functions which can be negatively affected by a reduction in hydroperiod. Other impacts of reduced wetland hydroperiods include loss of hydric soils, wetland-dependent species declines, replacement of wetland species by upland species including "exotics," tree loss, and an increased incidence of fire. Wetland water inundation or saturation results in the formation of hydric soils by the accumulation of "peaty" organic material at a rate of about one millimeter annually. The lack of oxygen in an inundated or saturated state allows for the accumulation of material at a very slow rate of decomposition. The peaty deposits in the wetlands near the subject wellfields indicate that these wetlands have existed for at least a thousand years. Normal drought conditions will result in some loss of hydric soil. The reduction of the wetland hydroperiod related to groundwater withdrawals near the impacted wetlands provides an increased opportunity for decomposition of the hydric soils. Such decomposition, called "burning" or "oxidation" results in drying and destruction of the peat. As the peat soil dries, its volume is reduced; as the volume declines, the soil subsides. Substantial tree loss is a visible indication that serious soil subsidence has occurred as the soil which formerly supported the tree with nutrients and physical support declines. Wetland plants are those which thrive in the normal wetland environment. Variations in wetland hydroperiod can result in substantial alteration to the wetland community of species. As the wetland hydroperiod is reduced, the growth of "invasion" species such as Melaleuca and Brazilian pepper increased, another indicator of a stressed wetland system. Cypress wetlands are utilized by a number of endangered or threatened species, including the wood stork and the indigo snake, and by various wading birds. As the wetland hydroperiod is reduced, the ability of wetland dependent species to utilize the wetland is similarly reduced. Eventually, the loss of wetlands results in lost breeding grounds, nesting areas and roosts, and eventually the complete loss of the habitat for wetland-dependent species. An increased incidence of serious and destructive fire is another result of decreased hydroperiod and hydric soil alteration. Under normal conditions, fire in cypress wetlands rarely occurs. There may be small fires every few years and a "serious" fire every few hundred years. In normal conditions, fire will burn through vegetation, but inundated or saturated peat soils do not suffer severe fire damage. In an area of reduced hydroperiod, fires can burn through dry soils and declining vegetation, resulting in extensive damage and additional soil loss. About 21 percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with wetlands. Of the 100 square mile area, wetlands make up 35 percent of the land around the Section 21 field, about 15 percent of the land around the Cosme field and 55 percent of the land around the South Pasco field. About 1,500 acres of wetlands are within a one mile radius of the Section 21 wellfield. About 2,000 acres of wetlands are within a one mile radius of the Cosme wellfield. About 1,600 acres of wetlands are within a one mile radius of the South Pasco wellfield. In the area of the subject wellfields, wetlands have been and continued to be impacted by reduced water levels. The conditions existing in the wellfield-area wetlands include soil oxidation and subsidence, increased invasion by "exotic" species, increased incidence of fire, tree loss, and loss of habitat for wetland dependent species. The primary cause of reduced water levels in the wetlands is the lowering of the surficial aquifer caused by water withdrawals at the subject wellfields. This finding is based on the credited testimony of the District's expert witnesses including a review of historical data related to wetland impacts and the wellfield withdrawals, and comparison of wetlands in the vicinity of the wellfields to "control" wetlands away from the wellfield impact. The control wetlands exhibit longer hydroperiods and display fewer signs of ecological stress than do wetlands closer to the wellfields. The control wetlands display a greater abundance of wetland-dependent species than do the wellfield-area wetlands. Notwithstanding the adverse impacts of the permitted water withdrawal, the hydrogeologic systems in the area of the wellfields have reached "dynamic equilibrium." A major water withdrawal from the Floridan aquifer results, after a period of several years, in a shifting of hydrological systems to accommodate the lowered levels. It can take as long as ten years for the changes and restabilization process to occur. Once the aquifer systems have stabilized, the systems have reached a "dynamic equilibrium." The hydrologic systems in the area of the subject wellfields have reached dynamic equilibrium. The evidence establishes that the major adverse impacts which occurred in the vicinity of the subject wellfields began shortly after the inception of water withdrawals from the wellfields. Although clearly adverse environmental impacts have occurred and are the result of water withdrawal, the water systems in the area of the wellfields have "reset" and are now essentially stable at the lowered levels. The Petitioners suggest that the adverse environmental impacts visible in the ecosystems on and near the wellfields can be attributed to natural ecosystem succession. The assertion is not supported by credible evidence. The greater weight of the evidence establishes that the major adverse environmental impacts are related to the withdrawal by the permittees of substantial quantities of water from the Floridan aquifer. The Petitioners assert that recent levels of low rainfall are the primary cause for the lowered lake levels and reduced wetland hydroperiods. The evidence fails to support the assertion. There is insufficient evidence to establish that recent low rainfall levels are indicative of a long term situation. The greater weight of the evidence indicates that recent low rainfall events are likely part of a cyclical precipitate system which historically experiences periods of increased and decreased rainfall. The major adverse environmental impacts to the lakes and wetlands are the result of water withdrawal. The low rainfall levels have exacerbated the situation, resulting in a lack of surficial water inflow into lakes and wetlands sufficient to replace that water which is continuously leaking from the surficial aquifer into the Floridan aquifer, as well as that which is lost from the surface via evapotranspiration. Although environmental monitoring efforts by the Petitioner are suggested to indicate that the deleterious effects of the reduced water levels are being remedied by recent increased rainfall levels, the evidence is insufficient to establish that the impacts of reduced hydroperiods related to groundwater withdrawals will be remedied by a return to "normal" rainfall levels. Recent increased rainfall has contributed to an increase in water levels. The typical changes which would be expected to accompany increased precipitation, such as signs of water in formerly dry littoral zones, are visible in a some areas. However, overall lake levels remain lowered, exposed lake beds are visible, and upland vegetation continues to grow on what was formerly lake bottom. The former shorelines are visible and clearly delineated by vegetation lines. The evidence fails to establish that the recent rainfall increase will correct the adverse impacts caused by the withdrawal of water from the subject wellfields. While the greater Tampa Bay area has recently seen cyclical low levels of precipitation, the predominant cause of the lowered surficial water table in the vicinity of the subject wellfields is the groundwater withdrawals from the wellfields. A return to "normal" rainfall levels will not address the systemic alterations which have occurred in the wellfield-area wetlands. If it is assumed that a lack of rainfall is the cause of the decline in the surficial water table, the conditions of the wellfields should be generally similar regardless of whether the wetlands are on/near the wellfields, or whether they are located at some distance from the fields. The evidence establishes that the wetlands near the area of the wellfields display signs of a gradual and continuing decline. Wetlands outside the wellfield impact do not show the same level of decline. It is reasonable to assume that periods of increased rainfall would result in increased water levels in area lakes, however, a review of data indicates that the lakes near the wetlands do not respond to rainfall in a normal manner. Despite two years of average to above average rainfall, the lakes at the Section 21 and Cosme wellfields continued to be substantially below normal. A comparison of potentiometric surfaces at monitoring wells on and off the wellfield sites further establishes that the lowering of the water table is not a precipitation-induced event. Monitoring wells on the wellfield sites have shown substantially increased reductions in potentiometric surface as compared to monitoring wells located in areas not impacted by the withdrawals. The Petitioners assert that area drainage projects have caused a reduction of water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to establish that there have been regional or local surficial flow changes sufficient to result in the reduction of water in nearby lakes and wetlands or in the decline in the surficial aquifer. Although drainage projects near some wellfields could potentially impact surface water movement, the evidence that such drainage projects are responsible for the lowering of the surficial water table in the vicinity of the wellfields is not persuasive. The Petitioners assert that land development in the area of the wellfields has resulted in reduced water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to support the assertion. The type of analysis required to establish the impacts of drainage on surficial water systems has not been performed. Current surface water management system permitting rules in effect since 1984 are designed to reduce the impacts of surface drainage on surrounding waterflow systems. Systems constructed in compliance with permitting rules retain water on the development site and can provide additional groundwater recharge. The evidence is insufficient to establish that significant development near the Section 21 wellfield is the cause of the lowered water levels on or near the wellfield There is relatively little urban development near the Cosme and South Pasco wellfields which could potentially impact water flow. The evidence fails to establish that the existing development hydrologically impacts the wellfield. The evidence fails to establish any relevant impacts caused by highway construction on the area hydrology. The Petitioners also assert that, rather than the South Pasco wellfield pumping, it is the land management practices by property owners to the east of the South Pasco field which are responsible for degraded conditions. Although land management practices, specifically burning, may have damaged wetlands, dry conditions related to pumping-related surficial aquifer declines likely resulted in more severe burn damage than would have otherwise occurred. "BASELINE" The District has adopted by rule permitting criteria which are considered in the review of an application for water use permit. The permitting criteria are further addressed in the District "Basis of Review." In part, the review of a water use permit application seeks to determine the anticipated impact of the proposed water withdrawal on wetlands, water resources and other natural systems by utilization of the permitting criteria and the Basis of Review (BOR). Such analysis requires establishment of a "baseline" against which anticipated impacts may be predicted. The baseline provides a point against which future impacts to a resource by a permitted water withdrawal can be measured. A baseline also provides a standard by which the success of mitigation efforts can be measured. The permitting history for the subject wellfields, including review of staff analyses, indicates that the adverse environmental impacts related to the water withdrawals were known to the District during earlier permit application considerations. The evidence establishes that in prior permit decisions, the District determined that the adverse environmental impacts were anticipated, and exempted the permittees from certain environmental standards which would likely have reduced the adverse impacts. The District Governing Board's decision to exempt permittees from meeting certain criteria related to adverse environmental impacts where such exemption was in the "public interest" was a discretionary act by the Board. The evidence fails to establish that the adverse environmental impacts caused by the actual withdrawal of water at current quantities from the subject wellfields have exceeded the adverse impacts which were previously deemed acceptable by the District. Although the District's rules have been changed to eliminate the granting of exemptions from permitting criteria, the evidence fails to establish that the District was ever required to exempt an applicant from meeting the criteria. The four wellfields at issue in this proceeding have operated in compliance with the permits issued by the District. None of the wellfields have been cited for violations of permit conditions. There is no evidence that any Notice of Violation has been issued regarding any operational aspect of these wellfields. There is no evidence that the District has initiated any permit condition enforcement action related to these wellfields. The District has been authorized under the previous permits to require mitigation of adverse environmental impacts related to the permitted withdrawals. There is no credible evidence that the District has taken formal action to require mitigation of adverse environmental impacts related to the subject groundwater withdrawals. The environmental conditions caused by withdrawal of water at the subject wellfields are those which were previously deemed acceptable and consistent with the public interest by the District. For purposes of this Recommended Order, baseline conditions are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications. EXISTING PERMITTED ADVERSE IMPACTS The evidence establishes that there have been adverse environmental impacts in the area of the South Pasco wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at South Pasco include a reduction in wetland hydroperiod, significant biological change, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, increased damage by abnormal fire, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to South Pasco water withdrawal include adverse impacts to Camp Lake, Mary Lou Lake, Lake Ruth, and Long Sun Lake. The water level at Camp Lake has shown substantial impact since the initiation of pumping. Other lakes have been impacted to the extent that aesthetic and recreational values are impaired. Animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Section 21 wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Section 21 include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Section 21 water withdrawal extend at least one mile from the wellfield and include adverse impacts to Starvation Lake, Lake Jackson, Lake Simmons, Lake Oakley and Lake Crum. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Cosme-Odessa wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Cosme-Odessa include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Cosme-Odessa water withdrawal extend at least one mile from the wellfield and include adverse impacts to Horse Lake, Church Lake, Lake Rogers, Lake Raleigh, Lake Amelia and Calm Lake. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. As compared to the other three wellfields at issue in this proceeding, the impacts related to the NWHRWF are minimal. Given the "linear" nature of the NWHRWF, wellfield-related adverse environmental are not localized but spread over a larger area than is the case with the other production wellfields. Accordingly the signs of environmental degradation which are visible at the other three wellfields are not visible in the vicinity of the NWHRWF. Two wetlands in the vicinity of the NWHRWF currently exhibit hydrologic impacts and upland species invasion, one near the "NW-1" well and another near the intersection of Gunn Highway and Turner Road. The evidence fails to establish that the adverse impacts at these two wetlands are related to the production of water at the NWHRWF. PERMITTING CRITERIA AND ACTUAL CURRENT WITHDRAWALS The evidence establishes that for the quantity of water currently being withdrawn from the wellfields, the applicants meet the relevant permitting criteria. To obtain the water use permits sought in this proceeding, the Petitioners must establish that the proposed use of water is a reasonable-beneficial use, that the proposed use will not interfere with any presently existing legal use of water, and that the proposed use is consistent with the public interest. As to the quantity of water currently being withdrawn from the wellfields, the evidence establishes that the proposed use of water is a reasonable-beneficial use, the proposed use will not interfere with any presently existing legal use of water, and the proposed use is consistent with the public interest. The evidence establishes that there will no new adverse environmental impacts caused by the continuation of pumping from the subject wellfields at quantities currently being withdrawn. The continuation of water pumping at current actual levels of withdrawal will continue the ecological decline already in progress, but will not result in new kinds of adverse environmental impacts. Over the long term, areas of reduced hydroperiod will continue to experience invasion by upland species and soil oxidation. The biological characteristics of the impacted areas have been altered. Wetland obligate vegetation will continue to decline. Populations of lake and wetland dependent creatures will be reduced as the water levels remain lowered by the impact of the pumping. Fires will continue to pose an increased threat to the already damaged wetlands. Despite the existing adverse impacts, there is no credible evidence that impacted areas would return to prepumping conditions even if pumping were halted from the subject wellfields. The actual withdrawal of water at levels not greater than those currently being pumped is a reasonable and beneficial use of the resource. The provision of potable water to the customers of the water utility systems which receive water from the authority is a reasonable and beneficial use of the resource. There is no evidence that the existing potable water requirements of the end users may be met by any other currently available water resource. The actual withdrawal of water at levels not greater than those currently being pumped will not interfere with other existing legal uses. The evidence establishes that where existing water uses predate the District's water use permitting program, such existing uses are not required to demonstrate non-interference with other existing legal uses unless the applicant proposes to withdraw additional quantities or create an impact greater than was previously permitted. In this case, the Petitioners seek to have the existing permits renewed at the quantities set forth in the existing permits. The proposed use is consistent with the public interest. The reliable provision of high quality water to the citizens of Florida is necessary to meet public health and safety requirements and is clearly consistent with the public interest. The Authority supplies water to a total population estimated at 1.8 million residents. Although the wellfields at issue in this proceeding supply only about 35 percent of the permitted water capacity distributed by the Authority, the evidence establishes that it is unlikely the Authority could supply the quantities currently required without utilization of these wellfields. Though the Authority operates an interconnected water supply system, the existing configuration of the supply lines does not allow for unrestricted provision of water from any wellfield to all users. The Section 21 wellfield supplies water to the residents of northwest Hillsborough County. Were the Section 21 wellfields to be unavailable, the Authority could not immediately route water to the northwest Hillsborough users from other fields. Likewise, the other three wellfields supply water to St. Petersburg, and the Authority would be unable to meet water requirements were the wellfields closed or pumping was substantially restricted. The District asserts that the lack of proper permits does not necessarily lead to the conclusion that these wellfields would be closed, and that water could be legally pumped via a series of emergency orders. There is no evidence that the District has made any legally binding commitment to allow for water withdrawals outside the appropriate permitting process. There is no evidence that the denial of permit renewal applications is an appropriate method for remedying adverse environmental impacts which are the result of previous permitting decisions and which were identified prior to issuance of the existing permits. Although the Petitioners estimate the cost of developing a water resource to replace the permitted capacity lost if these applications are denied to be about $180 million dollars, the cost estimate has insufficient supporting documentation to indicate that it is accurate. There is no evidence that the permittees have initiated any credible effort to replace the total quantity of water being withdrawn from the subject wellfields with new water sources of similar quality. The evidence establishes that at current actual quantities of water withdrawal, the Petitioners comply with the criteria requirements for issuance of the permits. Reasonable assurances have been provided that the withdrawal of water at the quantities currently being pumped is necessary to fulfill a certain reasonable demand for water. The actual quantity being withdrawn at the subject wellfields is necessary to meet current reasonable demand. The evidence further establishes that the actual quantity being withdrawn at the subject wellfields is capable of continuing to meet potable water demand during the permit renewal period. As for projected future demand, St. Petersburg estimates that it will need 43 mgd of water by 2007. The maximum annual average daily withdrawal from these wellfields is as much as 40.9 mgd. St. Petersburg receives an additional 6.2 mgd from the Authority as part of a water agreement "entitlement." Absent any additional available resources, the total maximum available quantity of 47.1 mgd would be sufficient to meet the water requirements of St. Petersburg. However, the evidence as to future demand in St. Petersburg fails to establish that St. Petersburg will require actual total withdrawals at the maximum levels currently permitted. Between 1983 and 1994, St. Petersburg's potable water use averaged about 39 mgd. From 1991 to 1994, the potable water use was about 37 mgd, indicating that potable water use is declining. At the hearing, St. Petersburg produced data which indicated anticipated total demand could be as low as 40.8 mgd, based on current usage patterns. The evidence establishes that St. Petersburg's water requirements can be met without increasing the actual quantities of water currently being withdrawn from the subject wellfields. Expanded and more appropriate utilization of the reclaimed water which is already available, and additional conservation measures and use restrictions identified in the pending Water Resource Development Plan, will provide sufficient water without increased withdrawals from the subject wellfields. Given the reduction in water use though increased utilization of reclaimed water and additional conservation measures, the evidence establishes that the projected water needs can be met without increasing the quantities currently being withdrawn from the subject wellfields. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact the water resources, including both surface and ground waters, beyond those previously permitted by the District. The continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact water resources, beyond those previously known to and permitted by the District. There is no credible evidence that any new adverse environmental impacts will result from withdrawal at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters, beyond those previously permitted. Adverse environmental impacts have resulted from the permitted withdrawal of groundwater as identified elsewhere in this order. The District has had the ability to require mitigation through conditions attached to prior permits. The District has the authority to continue to attach mitigation conditions to the permits issuing from this proceeding. There is no evidence that adverse environmental impacts caused by groundwater withdrawal can not be mitigated, however, it is difficult to determine, absent any direction from the District, the type of mitigation which would meet the District's approval. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. To the extent that such ranges are established, the evidence establishes that water withdrawals at current actual levels will not result in deviation from established ranges. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize the lowest quality water that the Applicant has the ability to use. St. Petersburg initiated a water reuse program in 1977, and is committed to expansion of the reuse system. The reuse program replaces potable water with reclaimed water in irrigation and some industrial applications. The St. Petersburg reuse program is nationally recognized. St. Petersburg currently has excess capacity in its reclaimed water system and has begun to increase the rate of expansion by reducing connection fees and taking other steps to allow easier neighborhood access to the reuse system. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact offsite land uses existing at the time of the application, beyond those previously impacted by permitted withdrawals. There will be no additional adverse impact to offsite land uses existing at the time of the application as a result of the continued withdrawal of water at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact any existing legal withdrawal beyond those previously impacted by permitted withdrawals. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize local resources to the greatest extent practicable. The evidence establishes that the potable water being withdrawn from the subject wellfields constitutes utilization of local resources to the greatest extent practicable. There is no credible evidence that a sufficient potable water supply is located more proximately to the St. Petersburg water users. The District asserts that the alleged misuse of excess reclaimed water demonstrates a failure to utilize local resources to the greatest extent practicable. The evidence does not support the assertion. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will incorporate water conservation measures. The District has set a per capita water use goal for the Northern Tampa Bay region of 140 gallons per day (gpd) by the beginning of 1997 and 130 gpd by the start of 2001. St. Petersburg's current water use rate is 122 gpd, substantially below the District's level. The evidence establishes that substantial efforts are being made by the Petitioners to reduce water use where such is economically feasible. St. Petersburg enforces lawn watering restrictions. New construction standards and a program aimed at replacement of existing residential bath fixtures encourage use of water-saving fixtures. St. Petersburg utilizes a water use rate structure which encourages conservation. Specific water conservation goals have been established. The District asserts that the Petitioners have not sufficiently demonstrated a commitment to conserve water to the satisfaction of the District. The fact that current water use in St. Petersburg is less than in other local areas, and in fact is below the District's mandated rate for 2001, suggests otherwise. While it is almost always possible to suggest that "more should be done," the evidence establishes that the Petitioners are making a good faith effort to conserve water resources. It is reasonable to expect that the Petitioners will continue to explore methods of reducing potable water use. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water to go to waste. The District criticizes St. Petersburg's reluctance to meter the use of reclaimed water and suggests that the lack of metering results in excess use of the available reclaimed water, which could otherwise (assuming expansion of the system) be available to other users. St. Petersburg states that metering would discourage use and that one of the goals of the reuse program is to dispose of wastewater. Unused reclaimed water is disposed of by deep-well injection. St. Petersburg asserts that the reuse program has the capacity to serve about 11,750 customers. At the end of 1994, there were about 7,600 customers. The evidence establishes that there is excessive use of reclaimed water by some consumers. Moderating excessive reclaimed water use would permit the system capacity to serve a total of about 17,000 customers. Increasing reclaimed water service to 17,000 customers could reduce the need for potable water by five mgd. It is logical to assume that as the potable water supply becomes less available and more costly, reclaimed water will become more valuable and more important in meeting the water needs of St. Petersburg It is likely that limitations on water withdrawals from the subject wellfields will serve to increase the value and utilization of reclaimed water. The District asserts that St. Petersburg's reuse system encourages overuse of reclaimed water and discourages citizens from connecting to the reuse system. Expansion of the reuse system requires installation of distribution lines. While there is no credible evidence that St. Petersburg's expansion program has been intentionally delayed, high connection charges and threshold for neighborhood participation have delayed system expansion. The evidence establishes that there is additional demand for reclaimed water by users in St. Petersburg. Reuse distribution lines are installed in neighborhoods where water users express interest in obtaining the reclaimed water. During a recent "sale", citizens were encouraged to connect to the reuse system through subsidized connections. St. Petersburg reduced from 50 percent to 30 percent, the number of homeowners who must agree to connect to the system prior to distribution line installation. Reduced-interest and extended payment loans were made available to homeowners to pay for the cost of connection. More than 2,000 customers signed up during the "sale." It will take about a year and a half for the city to meet the expansion demand established through the sale. The District asserts that metering of the reuse system will reduce waste of the reclaimed water. Although St. Petersburg suggests that metering will discourage use of the reclaimed water system, St. Petersburg is currently installing water meters to test the impact created by metered use. At this time, the evidence fails to establish that metering will reduce waste, though it is reasonable to assume that metering, and a conservation oriented rate structure, will reduce excess use. PERMITTING CRITERIA AND MAXIMUM QUANTITIES The existing permits allow for water withdrawals at quantities higher than those currently being withdrawn. The combined actual average daily withdrawals at the four wellfields total about 40 mgd. The maximum permitted capacity at the four subject wellfields is about 49 mgd. The evidence is insufficient to establish that at the 49 mpg maximum withdrawal levels set forth in the current permits, the Petitioners comply with the criteria requirements for issuance of the permits. The Petitioners assert that adverse environmental impacts will not occur even if pumping is at full permitted capacity. The evidence fails to support the assertion. Testimony that pumping from the subject wellfields could be increased by as much as 25-30 percent without an increase in the severity and extent of adverse environmental impacts is without credible foundation and is rejected. The issue of "rotational capacity" is offered by the Petitioners as rationale for issuance of permits which permit pumping beyond the quantities currently being withdrawn. Interconnected wellfields offer the ability to rotate withdrawals between the connections in order to allow time for repairs to a well, and to allow some facilities to "rest" and recover from environmental stress. In order to provide this ability, pumping from one of the interconnected wellfields is increased to reduce pumping from the stressed wellfield. The "rotational capacity" of the system is the quantity of water above that which is currently being withdrawn and which allows for pumping to be increased at the less stressed wellfield. The evidence fails to establish that "rotational capacity" can not be achieved without permitting withdrawals from the wellfields to increase above those quantities currently being withdrawn. The evidence fails to establish that increased water withdrawals, up to the maximum quantities set forth in the existing permits, will not interfere with other existing legal uses. The evidence fails to establish that pumping from the subject wellfields at maximum permitted quantities will not result in additional adverse environmental impacts. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause quantity or quality changes which adversely impact water resources, including both surface and ground waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. MITIGATION The evidence fails to establish that the Petitioners have proposed any appropriate mitigation which would address the existing environmental impacts of water pumping from the subject wellfields. Further, no acceptable mitigation plans have been proposed to address the adverse impacts which would accompany increased withdrawals from the four wellfields. The Authority has proposed an Environmental Management Plan (EMP) which provides a method of monitoring environmental conditions to determine whether mitigation of impacts would remedy adverse impacts. Although the EMP could provide reliable data in addition to that already available, the EMP, even if implemented, does not constitute mitigation of adverse impacts. One form of possible mitigation suggested by the Petitioners is the concept of "augmenting" lakes and wetlands by the addition of water taken from other lakes or wells to lakes with lowered water levels, or by the addition of excess reclaimed water to wetlands. The augmentation proposal is specifically addressed in St. Petersburg's "4-D's" report. The evidence fails to establish that the 4-D's report presents a reasonable mitigation proposal. Augmentation presents a number of biological concerns related to the addition of one type of water to another. Such issues include alteration of water balance, introduction of different non-native microscopic organisms into the receiving water, nutrient alteration, and coliform bacteria concerns. The evidence fails to establish that lake and wetland augmentation is an adequate or appropriate means of mitigating adverse impacts related to groundwater withdrawal. The evidence that the District has permitted lake augmentation in other situations fails to establish that such mitigation is an adequate method of addressing adverse impacts related to groundwater withdrawal. The evidence establishes that the Authority has implemented a "Good Neighbor Policy" under which the Authority repairs or replaces local private wells which experience problems possibly related to the water withdrawals at the NWHRWF. There is evidence that the Authority makes such repairs without determining the actual cause of the problem in an attempt to address local citizen complaints. The Authority has implemented the policy voluntarily. In two cases, the District received complaints from citizens unsatisfied by the Authority's response. The Authority provided additional assistance and eventually remedied the problems. Although the "Good Neighbor Policy" provides an adequate program to address the concerns of private individuals in the area of the NWHRWF, the evidence fails to establish that the general policy is adequate mitigation of the adverse environmental impacts caused by the wellfield water withdrawal. A monitoring program being performed on behalf of the Petitioners could provide an acceptable framework for monitoring and mitigating future adverse environmental impacts. Beginning in 1983, an environmental monitoring program was established by Water and Air Research, Inc., (WAR) for the NWHRWF. The water use permit for the NWHRWF requires implementation of a monitoring program. The NWHRWF monitoring program includes 67 monitoring stations and additional transect areas, and covers an area of approximately 120 square miles including areas near the Section 21 and Cosme-Odessa wellfields. The data collected from the monitoring program was published in annual reports which have been submitted by West Coast to the District. Beginning in 1991, WAR established an environmental monitoring program at the South Pasco wellfield on behalf of the Authority and St. Petersburg. The South Pasco wellfield permit does not require implementation of an environmental monitoring program. The WAR/South Pasco monitoring program includes nine monitoring stations. The data collected from the WAR/South Pasco monitoring program was published in three annual reports. In addition to the WAR monitoring program, CH2M Hill was retained in anticipation of these permit renewal applications to assess the condition of the South Pasco, Section 21, and Cosme-Odessa wellfields. CH2M Hill designed a three phase assessment program which includes a comparative review of land uses around the wellfields, a comparative review of ecological function both on- site and off-site of the fields with available historical data, and a detailed quantitative survey of current ecological conditions at the wellfields and at identified control sites. Although the WAR monitoring programs or the CH2M Hill assessment project are not without flaws, they provide the ability to quantify any future adverse environmental impacts caused by the continued withdrawal of water from the subject wellfields against a more detailed "baseline" measurement than that which has previously been available. The WAR/CH2M Hill programs also appear to provide the ability to gather more site- specific data than any program currently being utilized by the District. The WAR/CH2M Hill projects are not accepted for the purposes of determining historic impacts which have occurred since the inception of water withdrawals from the subject wellfields. The analysis of land use changes in the areas of the four wellfields, suggesting that the adverse environmental conditions were primarily related to factors other than pumping, was not persuasive. Evidence as to whether the selection of monitoring sites for the WAR/CH2M Hill projects appropriately represent the current state of the lakes and wetlands in the area of the wellfields was unpersuasive. Further, the WAR/CH2M Hill analysis of the current data provided by the witnesses involved in the project was not credible as to conclusions that the adverse impacts were being reversed by the recent cyclical return to more rainfall. It is not unusual to expect that where wetlands still exist, increased rainfall would show increased abundance of wetland dependent species. Increased rainfall results in temporarily increased lake levels and visible upland vegetation die-off will occur when the water level reaches the vegetation. The data is insufficient at this time to establish that there is any general "recovery" occurring in the ecosystems impacted by the withdrawal of water from the Floridan aquifer. The Petitioners assert that the WAR/CH2M Hill projects are more intensive than the monitoring projects utilized by the District. The evidence establishes only that over an extended period of time, the WAR/CH2M Hill projects are capable of providing quantities of detailed data related to the condition of the wellfields. The evidence fails to establish that the data currently generated by the WAR/CH2M Hill projects provides a basis for reliable long term analysis. THE NWHRWF DEFAULT PERMIT ISSUE As stated previously, the Authority asserts entitlement to an unrestricted default permit for the NWHRWF. The evidence establishes that the Authority is entitled to a default permit, but does not support issuance of an unrestricted water use permit. During the permit renewal process, the NWHRWF application was combined with the Manors at Crystal Lake wellfield permit which had been held by Hillsborough County. Hillsborough County turned operational responsibility over the wellfield and over the renewal permitting process to the Authority. Notice of the District's completeness determination was sent not to Hillsborough but to the Authority, which was identified on the permit as the applicant. Prior to the District's first decision deadline, the District sought by letter to Hillsborough and copy to the Authority, an extension of the deadline to December 31, 1994. By separate letters, both Hillsborough and the Authority consented to the extension. The District was apparently unable to act by the deadline and sought a second extension to March 1, 1995, but the District's request was sent only to a representative of Hillsborough County. No copy of the request was provided to the Authority. At the time the District sought the second extension from Hillsborough County, the District had been notified that the Authority had assumed responsibility for the NWHRWF/Crystal Lake renewal application. The District claims that the request to Hillsborough County, rather than to the Authority was proper because Hillsborough had been the permittee on the expiring permit. However, the District had notified only the Authority that the combined applications had been deemed complete. Apparently unaware that Hillsborough had withdrawn from the permit renewal application process, the Hillsborough representative consented to the second extension, but did so without consultation with the Authority. The Authority did not consent to the second extension. At the time the District sought the second extension, Hillsborough County had no responsibility for or authority regarding the combined NWHRWF/Crystal Lake renewal application. The District issued it notice of proposed action on the NWHRWF on February 7, 1995. The Authority asserts that it is entitled to an award of a default permit for the NWHRWF based upon the failure of the District to grant or deny the permit by the December 31, 1994 deadline extension to which the Authority had consented. The evidence fails to establish that the Authority is entitled to receive an unconditioned permit based on the District's failure to meet the December 31 deadline. The evidence does establish, based upon the failure of the District to meet the December 31 deadline or obtain an extension from the Authority as the applicant for the permit, that the Authority should receive a ten year permit for operation of the NWHRWF subject to the conditions set forth herein.
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: Granting water use permits for the subject wellfields with the following conditions: The permits should be valid for a period of ten years from the date of issuance. The maximum permitted quantities for each of the four permits should be reduced to not more than the average annual daily quantity currently being withdrawn at each wellfield. In order to provide rotational capacity, the permits should be structured to provide, upon approval of the District, for water withdrawal in excess of the permitted quantities at any of the four wellfields, so long as the increase in withdrawal from one wellfield is balanced by decreased withdrawal at another wellfield. The renewal permits should provide for no increased water withdrawals beyond the actual quantities currently being pumped from these wellfields. Environmental monitoring should continued and be expanded to include areas not currently being monitored. The monitoring program should be jointly undertaken and funded by the permittees and the District. The District shall determine the number and placement of monitoring stations and the frequency with which data shall be collected and reported. The Authority's "good neighbor" policy at the NWHRWF should be made a condition to the NWHRWF permit. The City of St. Petersburg's water reuse program should be expanded to provide additional service where such expansion is feasible. St. Petersburg shall implement continuing measures to encourage enrollment of new customers, including permanent reductions in connection fees and neighborhood participation thresholds, as has been done during the recent campaign to increase connections. St. Petersburg shall also implement measures to reduce the excessive use of reclaimed water by current customers. The District shall establish time-specific deadlines by which St. Petersburg's compliance with this condition can be measured. The permits should include all standard conditions which are generally applicable to the subject water use permits. RECOMMENDED this 29th day of May, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: E. D. “Sonny” Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Donald D. Conn, Esquire West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 John T. Allen, Esquire Post Office Box 14332 St. Petersburg, Florida 33733-4332 Kim Streeter Assistant City Attorney Post Office Box 2842 St. Petersburg, Florida 33731 Daniel P. Fernandez, Esquire Laura A. Olson, Esquire 3820 Northdale Boulevard, Suite 312B Tampa, Florida 33624 Douglas Manson, Esquire 100 South Ashley Drive, Suite 1190 Tampa, Florida 33601 Edward P. de la Parte, Jr., Esquire Michael A. Skelton, Esquire Post Office Box 2350 Tampa, Florida 33601-2775 Richard Tschantz, Esquire James A. Robinson, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. Gary Early, Esquire 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301 John W. Wilcox, Esquire Derek Spillman, Esquire 100 South Ashley Drive, Suite 1500 Post Office Box 3273 Tampa, Florida 33601 Frederick T. Reeves, Esquire 5709 Tidalwave Drive New Port Richey, Florida 34652 H. Ray Allen Assistant County Attorney Post Office Box 1110 Tampa, Florida 33601 Karen E. Maller, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 David Forziano Assistant County Attorney 601 East Kennedy, Boulevard, 27th Floor Post Office Box 1110 Tampa, Florida 33601 Stanley J. Niego, Esquire Prosperity Bank Building 100 Southpark Boulevard, Suite 405 St. Augustine, Florida 32086
Findings Of Fact Petitioner Richard L. Buchanan owns a lot in Franklin County, which lies on the north shore of Apalachicola Bay. Shellfish harvesting is prohibited in the water adjacent to his parcel despite, or perhaps because of, oyster houses having operated in the vicinity for many years. Mr. Buchanan is not an oysterman himself, but he does fish commercially, when he is able. He owns two licensed fishing boats. He goes floundering and also fishes with gill nets. Since he acquired the property 10 or 12 years ago, Mr. Buchanan regularly loaded nets from shore and unloaded fish and nets on shore, until the prop-dredging took place, even though a dock extends out into the Bay from his property. The outboard motor is hard to handle from the dock and it is virtually impossible to load the nets from the dock without fouling them. Until the prop-dredging he could bring his boats all the way in and lay their bows on the shore along the stretch of clean sand 35 to 50 feet wide at the western end of his 145 feet of Bay frontage. There was a sheer drop to a depth, at high water, of about 3.5 feet. The Sadler boy drowned there. Before the prop-dredging disturbed it, the configuration of the bottom that allowed small boats to come all the way into shore at that point had obtained for decades. Leo Nixon Harwell, son of the former owner of petitioner's property, remembered running the Harwells' oyster boat, which drew three feet, right up on the beach. Mr. Harwell, who looked to be in his 50's, testified that there had been deep water next to the shore ever since he was "no yearly boy." The further from shore the deeper it got till you reached Two Mile Channel. Between the sandy beach and the channel there was no vegetation to speak of although there was a marshy swash to the east of the sandy beach. In 1979, when Arman Earl Cloud had to haul his bay shrimper for repairs, he floated it to the beach in back of Mr. Buchanan's house and pulled it up on the beach, using rollers. The bow floated to the water's edge. The boat had a length overall of 25 to 28 feet, a beam of nine feet and drew three to three and a half feet of water. An oyster house sits on the next parcel west of the Buchanan property. The oyster house belongs to a man named Page, and a dock 100 feet long juts out toward Two Mile Channel from the oyster house. It used to be impossible to get an oyster boat in any closer to shore. When John Paul Whitehead was oystering some years back, they used to have to anchor out and transfer the oysters to a skiff to get them to the Page oysterhouse. In fact, when Diane Collins rented the oysterhouse (from Bobby Youngblood) in 1974 or 1975 it was impossible to bring even a flat-bottomed boat in as far as the waterward end of the dock. "On dead low tide all you seen was sand on either side of the dock." According to unrebutted testimony, the Pages changed all this by prop- dredging. (Mr. Page failed to honor the subpoena requiring his attendance at the final hearing.) Prop-dredging involves fixing the bow of a boat by grounding or otherwise, and turning the propeller at speeds high enough to move soils on the bottom. Bay this technique, the Pages dredged great quantities of sand on either side of their dock. Most of the sand stayed suspended in the water only long enough to settle in front of their neighbors' property. This illegal activity was brought to the attention of the marine patrol at the time, whose warning to the Pages to desist went unheeded, and at least one employee of respondent Department of Environmental Regulation was also apprised. The prop- dredging continued for some time, usually at night, and the eventual result was "a muck hill" in front of the Miracle Seafood property abutting the Pages to the west, and a sandbar in front of Mr. Buchanan's property that completely blocks access to his sandy beach. The Pages, with 55 front feet on the Bay, can now accommodate quite a fleet at their dock. One day six to eight boats were docked there. The sandbar in front of Mr. Buchanan's property attributable to the Pages' unpermitted and illegal prop-dredging has by now been there long enough that smooth cord grass (Spartina altiflora), saw grass and maiden cane have taken root. The dredging proposed by petitioner to restore access to his shoreline would disturb some 400 square feet, on which only Spartina altiflora is growing. On about a quarter of the proposed site, there is no vegetation. The Spartina altif lora helps stabilize the shoreline, serves to filter pollutants running off into the Bay and provides a habitat and food for insects, worms, oysters, shrimp and fishes. Dredging would resuspend any heavy metals in the soil, and increase the turbidity of the water, in the immediate vicinity. There is a boat ramp 500 feet from petitioner's property. DER would issue a permit for a marine railway at the site where petitioner hopes to dredge. Apalachicola Bay is classified as Class II waters, and as outstanding Florida waters, being part of an aquatic preserve. There is a clear public interest in permitting a private citizen, who is willing to restore, at his own expense, a part of the coastline disturbed by illegal activity which he responded to the authorities at the time, to the status quo which existed for as long as anybody can remember, before the illegal activity disturbed it. In an undated letter to Mr. Buchanan, James W. MacFarland, Director, Division of State Lands, Department of Natural Resources, advised that Upon the assurance that the environmental effects are acceptable and with the understanding that DER intends to issue the permit, we will request the dredge material severance fees and issue our authorization pursuant to Section 253.77, Florida Statutes, upon the permit receipt. The credible testimony of DER staff was to the effect not that the loss of some 300 square feet of Spartina altif lora would have unacceptable environmental effects, but that the cumulative effect of projects entailing destruction of such grasses would have unacceptable environmental consequences. Respondent's proposed findings of fact, conclusions of law and proposed recommended order have largely been adopted, in substance. To the extent any proposed finding of fact has been rejected, it has been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner grant respondent's application for a dredging permit on such reasonable conditions, including turbidity curtains, as are necessary adequately to protect the project vicinity. DONE and ENTERED this 8th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of August, 1983. COPIES FURNISHED: E. Gary Early, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard L. Buchanan P. O. Box 33 Apalachicola, Florida 32320 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Respondent South Florida Water Management District is entitled to an environmental resource permit from Respondent Department of Environmental Protection to construct a weir in Collier County on the Merritt Canal about 3600 feet south of Interstate 75 for the purpose of extending the hydroperiod on the Florida Panther Federal Wildlife Refuge.
Findings Of Fact Proposed Permit On April 17, 1996, Respondent South Florida Water Management District (District) filed with Respondent Department of Environmental Protection (DEP) an application for the construction of a water-control structure in the Merritt Canal. The stated purpose of the structure, which is a weir, is to extend the hydroperiod of the Lucky Lake Strand. The application states that the District is the owner of a drainage easement covering the land proposed as the site of the weir. According to the application, Collier County, in which the Merritt Canal lies, originally held the drainage easement. The District later adopted the Merritt Canal as a "Works of the District," which transferred operational responsibility for the canal from the County to the District. (A sub-unit of the District, the Big Cypress Basin Board has jurisdiction for District projects of the type involved in this case. References to the District shall include the Big Cypress Basin Board.) The application requests a permit to construct an adjustable sheet-pile weir within the 80-foot Merritt Canal right-of-way. The application accurately describes the Merritt Canal as a Class III waterbody that is not an Outstanding Florida Water. By Notice of Intent to Issue Environmental Resource Permit dated January 29, 1997 (NOI), DEP proposed to issue an environmental resource permit (ERP) to the District for the construction of the Lucky Lake Strand Water Control Structure. The structure would be an adjustable weir with operating levels of 7.0 feet National Geodetic Vertical Datum (NGVD) in the wet season and 9.5 feet NGVD in the dry season. As stated in the NOI, the Merritt Canal is 12 miles long and one of four main north-south canals within a larger system of 183 miles of canals--all Class III waters-- constructed in the 1960s by Gulf American Land Corporation to drain wetlands for development of the Southern Golden Gate Estates area. These four north-south canals drain water south through the Faka Union Canal and into Faka Union Bay, which is part of the 10,000 Islands/Cape Romano Aquatic Preserve. The preserve contains Class II Outstanding Florida Waters. The NOI notes that the U.S. Fish and Wildlife Service (FWS) and District entered into an agreement in September 1994 to construct two weirs in the Merritt Canal "to partially restore historic hydroperiods into two major wetland features within the federally owned lands of the USFWS Florida Panther National Wildlife Refuge, Lucky Lake Strand and Stumpy Strand (Class III Outstanding Florida Waters)." As stated in the NOI, these federally owned wetlands constitute over 3000 acres of cypress and mixed swamps, wet prairies, marshes, and ponds. The NOI relates that FWS staff proposed the project to counteract "subtle vegetational changes and accelerated pond draw-downs [that] were taking place in the strands as a result of shortened hydroperiods caused by a three-year drought, I-75 widening activities, and subsequent canal modifications." The NOI correctly states that water in the wet season historically flowed southerly through Stumpy Strand, Lucky Lake Strand, and Picayune Strand, before entering the larger Fakahatchee Strand. Lucky Lake Strand narrows to 1000 feet at its south end, which is at Interstate 75 (I-75). The NOI accurately asserts that the construction of the Merritt Canal and the I-75 borrow canals combined to draw down the upstream wetlands, thus reducing their hydroperiods. The effect of the Merritt Canal is reportedly significant because of its confluence with the southern tip of Lucky Lake Strand. The NOI discloses that the original agreement between the District and FWS called for the construction of two weirs south of I-75, one at the headwaters of the Merritt Canal and another about 1800 feet downstream in the Merritt Canal. However, the proposed permit eliminates one weir, whose function was performed by plugs in the north I-75 borrow canal, and relocates the remaining proposed weir about 3600 feet south of I-75, rather than immediately south of I-75, reportedly because of difficulties in accessing the proposed weir at I-75. The NOI states that the Merritt Canal is within the 80-foot drainage easement originally acquired by Collier County. The uplands adjacent to the weir are reportedly owned by DEP. The NOI describes the proposed weir as a sheet pile weir with adjustable partitions. As proposed, during the wet season, the District would start to open the gates at 7 feet NGVD and start to close them at 6.5 feet NGVD. During the dry season, the District would start to open the gates at 9.8 feet NGVD and start to close them at 9.3 feet NGVD. Also, the proposed permit would anticipate that the District would dredge the canal to a trapezoidal cross-section having a bottom elevation of -1.5 feet NGVD and a width of about 49 feet at the weir and transitioning to 20-foot bottom widths upstream and downstream of the weir. According to the NOI, the purpose of the proposed weir is to reduce over-drainage of the upstream wetlands in Lucky Lake and Stumpy Strands by extending the hydroperiod further into the dry season. No increase in water levels during the wet season is expected. Although the historic extended hydroperiod is not expected to be achieved, the weir structure is expected to improve current conditions to the upstream wetlands. Holding back water in these wetlands [is] also expected to improve water quality downstream by removal of excess nutrient, sediments, and chemicals. Wildlife values are expected to be enhanced in preferred waterfowl and wading bird habitat, including areas for the endangered wood stork and threatened bald eagle. Forage areas are also expected to be improved for white-tailed deer and other wildlife species which are essential prey for the endangered Florida panther. Aquifer recharge is also expected as the ground water reserves will be raised by raising the canal water levels, while maintaining the existing level of flood protection for adjacent private landowners. The NOI states that FWS will monitor post- construction environmental conditions and will recommend to the District adjustments to the weir elevations. The NOI reports that the District will be the "main operator" of the weir to adjust elevations to maintain flood control for adjacent lands. The NOI adds: The project was designed so as not to decrease the peak discharge capacity in the canal or increase flood stages in the Upper Merritt Canal watershed. Hydraulic modeling by the District indicates that there will be no additional surface water flooding to private property as a result of the project, and the current level of service will be maintained. Based on this analysis, the NOI concludes that the District has provided reasonable assurance that the proposed activity will comply with Part IV, Chapter 373, Florida Statutes, and the underlying rules, including Chapter 62-330 and Rules 40E-4.301 and 40E-4.302, Florida Administrative Code. The NOI states that the District has demonstrated that the activity is clearly in the public interest, pursuant to Section 373.414(1)(a), Florida Statutes. The proposed permit conforms to the NOI's description. Specific Condition 13 sets the fixed crest of the proposed weir at 4.5 feet NGVD and the width of the weir at 48 feet. Although the proposed permit is nowhere explicitly conditioned on a successful wetland enhancement project, Specific Condition 12 states that "the" wetland enhancement project shall be considered successful if, after five years, Lucky Lake Strand and Stumpy Strand display wetland- appropriate vegetation and the "viability of adjacent upland sites [is] not negatively impacted by increased ground water or surface water levels resulting from the authorized project." Specific Condition 17 requires the District to document the operation of the gates and notify DEP, within three days, whenever any of the permitted elevations are exceeded. Annually, the District must supply DEP detailed data and analysis of the operational history of the weir, including "reasons for going to nonstandard operation and a narrative description of the effectiveness of initiating the nonstandard operation to include areas not flooded (or flooded, if applicable) and other associated impacts." During the final hearing, the District proposed, and DEP approved, a modification of Specific Condition 18. As modified, Specific Condition 18 requires the District to "monitor the effects of the operation" of the weir, pursuant to the revised monitoring plan incorporated by reference into this condition. The revised monitoring plan, which is dated November 12, 1997, alters the original monitoring plan by adding two sites for the installation of water-table wells. One of the new sites (Site A) is 1200 feet north of the weir, and the other new site (Site B) is 1200 feet north and 2000 feet west of the weir. These are the only water-table monitoring devices. Five other sites are surface-water monitoring sites. Three of the these sites are in the Merritt Canal: one immediately upstream of the weir, one immediately downstream of the weir, and one farther upstream at I-75. The other two surface-water monitoring sites are farther upstream. One is in Lucky Lake about 1.75 miles north of the weir, and the other is about three miles northeast of Lucky Lake. Three other sites are rainfall-monitoring sites. Two rainfall-monitoring sites are north of the weir. The site just north of I-75 is at the Ford Motor Company test track, which is immediately west of Lucky Lake and Stumpy Strands, and the site more directly north of the Merritt Canal is about ten miles north of I-75. Specific Condition 18 states the frequency with which someone (presumably a District employee or contractor) is to collect the data from these 10 monitoring sites, but contains no performance criteria. The monitoring plan thus commits the District to collecting data, but not to analyzing the data, nor, more importantly, taking specified actions when certain performance parameters are exceeded. Neither the revised monitoring plan nor the application in any way commits the District to using the data collected from the revised monitoring plan to develop a set of criteria, based on rainfall amounts, groundwater levels, and surface water levels, to fine-tune the operation of the gates so as not to exacerbate present flooding. Nothing in the revised monitoring plan or the application suggests that the District will use the data collected from the revised monitoring plan to identify more clearly the relationships between storm events and water levels to understand better the relationship between flooding, on the one hand, and the existence of the proposed weir and the operation of its gates. Faka Union Canal Watershed and Southern Golden Gate Estates What is now known as the Faka Union Canal Watershed historically covered about 234 square miles. It ran from an area about four miles north of what is now known as Immokalee Road south in a widening expanse that approached 12 miles at what is now U.S. Route 41. It then ran south until it emptied into the Gulf of Mexico at Faka Union Bay in what is now the Cape Romano Ten Thousand Islands State Aquatic Preserve east of Marco Island. Land alterations due to road and canal construction and urban and agricultural development eventually reduced the Faka Union Canal Watershed to about 189 square miles. Most noticeably, these changes narrowed the drainage area at U. S. Route 41 from almost 12 miles to little more than the width of the Faka Union Canal. The Faka Union Canal Watershed is characterized by low relief and poorly defined drainage patterns. At the north boundary of the watershed, which now ends at Immokalee Road, the elevation reaches 24 feet NGVD. Twenty-eight miles to the south, at the outlet of the basin, the elevation is two feet NGVD. The water flows generally in a southwest direction. Historically, water ran slowly through the watershed in sheetflow several miles wide and a few inches to a few feet deep. Drainage concentrated in slightly lower sloughs and strands, which generally dried out in the dry season. Historically, the watershed featured flat, swampy lands containing cypress trees, islands of pine forests, and wet and dry prairies. Prior to development, much of the watershed remained inundated by several feet of water during the five- month wet season (roughly from mid-May through mid-October). In this undisturbed state, the prominent features of the watershed were the storage of runoff in depressional areas, attenuated peak flows, and a longer hydroperiod into the dry season. In the early 1960s, Gulf American Land Corporation subdivided a 173 square-mile area in Collier County into many thousands of lots as small as 1.25 acres. The development was Golden Gate Estates. The portion of Golden Gate Estates south of I-75 is known as Southern Golden Gate Estates. Golden Gate Estates is west of the Merritt Canal. Gulf American's purpose in dredging the 183-mile canal system was to allow it to market as land, available for continuous occupation, subdivided lots superimposed over an area that was land during the dry months and water during the wet months. To achieve this objective, Gulf American Land Corporation constructed one group of canals that drains to the west and another group of canals drains to the south into the Faka Union Canal. Gulf American dredged the canals draining to the south, which form the Faka Union Canal System, from 1968 through 1971. Four north-south canals spaced two miles apart drain Southern Golden Gate Estates and the portion of the Faka Union Canal Watershed north of I-75. From west to east, the canals are the Miller Canal, Faka Union Canal, Merritt Canal, and Prairie Canal. Only the two westerly canals run north of I-75. The Miller Canal extends almost seven miles north of I-75, and the Faka Union Canal extends about 14 miles north of I-75. The Merritt Canal starts in the immediate vicinity of I-75, and the Prairie Canal starts about two miles south of I-75. The average excavated depth of the four canals is about ten feet from the top of the bank to the bottom of the channel. Given the relatively close proximity of the water table to the surface in this area, excavation to these depths thus established a direct hydraulic connection with the surficial aquifer. The canals are large, ranging from 45 to over 200 feet wide. Although unable to convey without flooding the water from even a ten-year storm event, which is the level of service standard set by Collier County for Southern Golden Gate Estates, the Faka Union Canal system has nonetheless severely impacted the water resources of Collier County. According to the Hydrologic Restoration of Southern Golden Gate Estates, prepared in February 1996 by the Big Cypress Basin Board (Southern Golden Gate Estates Restoration Plan): . . . Construction of the canals has led to both increased volumes and rates of runoff from the watershed which has had lasting effects on the area's water supply, vegetation, wildlife, and coastal estuaries. The canals intercept large volumes of surface and subsurface flow and quickly divert them to the Faka Union Bay and the Ten Thousand Island Estuary of the Gulf of Mexico resulting in less surface water available for storage. Since groundwater recharge is achieved primarily through infiltration from surface detention storage, reduced groundwater recharge threatens both groundwater supply for the region and the natural barrier to salt water intrusion. Continued overdrainage has caused an eventual lowering of the groundwater table. This has caused vegetation to change from wetland dominant to transitional and upland systems with invasive exotic species. The extreme dry conditions caused by overdrainage have resulted in more frequent and more intense wildfires with a greater destructive impact on vegetation. The increased runoff rate has had severe effects on the receiving estuaries. Historically, the estuaries would receive broad, slow moving sheets of water that were capable of carrying essential nutrients but not high sediment loads. This has been replaced with point loads of freshwater at the Faka Union Canal outlet that push salinity levels down and result in freshwater discharge shocks throughout the Ten Thousand Island Estuary. The increased runoff rate drains the area quickly and does not allow the hydroperiods necessary to sustain wetland vegetation. . . . Southern Golden Gate Estates Restoration Plan, pages 8-9. The major roadway affecting the Faka Union Canal Watershed is State Road 84, which was a two-lane road constructed in 1966. In 1990, construction was completed transforming State Road 84 into four-lane I-75. These road projects have hastened drainage of the lands to the north of I-75 and east of the Faka Union Canal. The land north of the Merritt Canal is largely undeveloped. If one were to extend the Merritt Canal due north of I-75, it would run through the middle of Lucky Lake Strand and much of Stumpy Strand, which is immediately to the north of Lucky Lake Strand. Agricultural land owned by Collier Enterprises is just north of the Ford Motor Company test track and immediately west of Lucky Lake Strand. Agricultural land owned by Baron Collier Company is immediately north of Stumpy Strand. This imaginary extension of Merritt Canal would mark the west boundary of the Florida Panther National Wildlife Refuge, which was established in June 1989. The Florida Panther National Wildlife Refuge constitutes 26,000 relatively undisturbed acres immediately north of I-75. Intervenor Clifford Fort owns property south of the refuge on the south side of I-75. The Florida Panther National Wildlife Refuge features mostly wetlands, oak hammocks, pine flatwoods, and prairies. The refuge receives runoff from stormwater and possibly agricultural pumping of the water table from the adjacent farmland. In addition to draining into the headwaters of the Merritt Canal near the southwest corner of the refuge, the refuge also drains into the northerly borrow canal running along the north side of I-75. In the vicinity of the Merritt Canal, the four borrow canals running along the north and south sides of I-75, on both sides of the Merritt Canal, drain in the direction of the Merritt Canal. Listed species using the Florida Panther National Wildlife Refuge include the Florida panther, Florida black bear, wood stork, roseate spoonbill, limpkin, and Eastern Indigo snake. In October 1995, an inordinate amount of rain fell in the area. Attracted by the increased water depths, which more closely approximated historic conditions, 75 wood storks nested in the Lucky Lake Strand; in drier years, wood storks do not nest in the strand. Lucky Lake Strand occupies the southwest corner of the Florida Panther National Wildlife Refuge. Lucky Lake and two other ponds are present in this area. When full, Lucky Lake and one of the ponds are about 50 meters wide, and the third pond is about half of this width. During the dry season, a person can throw a stone across any of the ponds. Historically, Lucky Lake and Stumpy strands passed surface water into the Picayune Strand, which is west of the Merritt Canal and south of I-75, from which the water ran into the Fakahatchee Strand. Lucky Lake Strand presently narrows to about 1000 feet at I-75. The hydrologic connection between the outlet of Lucky Lake Strand and the headwaters of the Merritt Canal has contributed significantly to the overdrainage of these two strands, which occupy a significant area within the federal refuge. The FWS wildlife biologist stationed at the Florida Panther National Wildlife Refuge reported in a habitat assessment report prepared in August 1996 that four ponds in the strand dried out by December so that they could not sustain fish or provide feeding habitat for birds. Permitting Criteria Public Health, Safety, or Welfare or Others' Property One of the main disputes between the parties is the affect of the proposed weir on flooding. This case is largely about flooding or, more generally, the amount of water to be stored for a specified period of time. Petitioners and Intervenors fear that the District's effort will cause flooding to areas south of I-75 and east and west of the Merritt Canal. Occupying property within a vast area whose natural drainage patterns have been greatly disrupted, Petitioners and Intervenors justifiably fear the ravages of flood and fire. Although this area was undoubtedly subject to these hazards prior to man's alteration of the natural landscape, large- scale alterations to natural drainage in Southwest Florida have artificially heightened the risk presented by these natural hazards. Destructive flooding follows the inhabitation of areas historically devoted to the storage of considerable volumes of water; the flooding is exacerbated where, as here, natural drainage features have been replaced by artificial facilities that are inadequate for both the natural flows and the new, artificial flows generated by development. Although inadequate for the natural and artificial flows generated by even design storm events, the artificial drainage facilities nevertheless change historic drainage rates, accelerating the rate and volume of natural drainage and shortening the hydroperiod. In this manner, the artificial drainage facilities contribute to the desiccation of previously saturated soils and foster conditions suitable for dangerous fires. Initially, Petitioners and Intervenors contend that the District seeks approval of the proposed weir as an indirect means of implementing the Southern Golden Gate Estates Rehydration Plan. Little evidence supports this concern. The Southern Golden Gate Estates Rehydration Plan outlines several alternatives for the proposed rehydration of Southern Golden Gate Estates. The preferred alternative does not call for a weir at the proposed location. The purpose of the proposed weir is to rehydrate an area north of the Southern Golden Gate Estates. As discussed below, the role of the proposed weir in rehydrating Southern Golden Gate Estates appears insubstantial to the point of nonexistent. Focusing on the location of the proposed weir over half of a mile downstream from the southernmost part of the area intended to be rehydrated, Petitioners and Intervenors dispute the stated purpose of the project, focusing on the District's earlier relocation of the proposed weir from positions just north and then just south of I-75 to its present position a half-mile farther to the south. The District did nothing to allay this concern of Petitioners and Intervenors when its employees could not provide a reasonably detailed explanation of the process by which someone moved the proposed site to the south. From the District's evidence, one would infer that the decision to relocate the proposed weir to the south spontaneously emerged, without human sponsor, in the course of bureaucratic decisionmaking. The District asserted that the northerly sites were impractical due to access problems. However, the District made little, if any, real effort to see if the Department of Transportation would allow access to these more northerly sites--one of which the District might be able to access without the consent of the Department of Transportation. The record does not reveal why the District relocated the proposed weir to its present location, considerably south of its initial two locations at I-75. Again, though, the evidence does not support the contention of Petitioners and Intervenors that the relocation decision was part of a private plan among District employees to incorporate the proposed weir as part of a more ambitious project to rehydrate Southern Golden Gate Estates. Nor does the evidence establish, as Petitioners and Intervenors contend, that the relocation decision was driven by the concerns of three influential landholders to the north of I-75--Collier Enterprises, Barron Collier Company, and Ford Motor Company. These three landholders approved the proposed weir in its present location over a half-mile to the south of its original locations and may have expressed concern that the original locations at I-75 would unreasonably raise the risk of flooding their land and business and agricultural activities to the north of I-75. If the District's real reason for relocating the proposed weir was due to objections from these landowners to the north of I-75, this reason would not itself help Petitioners and Intervenors. If the District acceded to the demands of these landowners to the north, it does not necessarily follow that the District lacked confidence in its flood calculations. A relocation decision under these circumstances would have as likely reflected political, as scientific, concerns. Additionally, if the District moved the proposed weir at the insistence or suggestion of the landowners to the north, any flooding concerns voiced by these landowners raise different issues from the flooding concerns raised by Petitioners and Intervenors. Owners of land immediately to the north and west of the federal refuge are more directly within the area of the intended effects than are Petitioners and Intervenors. More substantially, Petitioners and Intervenors claim that the proposed activity is so negligently designed or will be so negligently operated as to result in heightened and more frequent flooding of areas to the west and east of the proposed weir. The District's record in operating weirs in Collier County is not flawless. In recent years, the District constructed and maintained a weir with unlawfully high gates and did not correct the noncompliant water-control structure for several months after first learning of the violation. However, this appears to have been an isolated violation. The division of responsibility between the District and Collier County for the maintenance of drainage canals is based on whether the canal is a primary or secondary drainage facility. The District has assumed responsibility for all of the primary drainage facilities in Collier County. Surprisingly, though, the record reveals no master map or index of the primary drainage facilities and at least the larger nonprimary drainage facilities. However, Petitioners and Intervenors failed to show that any confusion concerning maintenance responsibilities that may exist between the District and Collier County would appreciably raise the probabilities that the District would operate the proposed weir in such a way as to exacerbate present flooding concerns. The District and Collier County agree that the District has jurisdiction over the Merritt Canal. Petitioners and Intervenors have also failed to show that any confusion concerning secondary-drainage contributions that may exist between the District and Collier County would have a substantial impact on the successful operation of the proposed weir. The most significant claim raised by Petitioners and Intervenors asserts that the District failed to provide reasonable assurance that the proposed weir would not exacerbate flooding. Although the weir gates would be closed only during the dry season, the proposed activity requires analysis of the risk of heightened water elevations upstream of the proposed weir. In theory, flooding could result from the effects of the weir even when the gates are open, as well as the possibility of an extreme storm event during the dry season. Expert witnesses on both sides clashed over whether the design of the proposed weir was sufficient not to exacerbate existing levels, rates, and frequencies of flooding of adjacent uplands. The crucial feature over which the experts disagreed was the spoil banks running along the canal. When the Merritt Canal was constructed, the spoil was dumped along the banks. In the ensuing years, vegetation colonized and stabilized the spoil banks, which now function as levees. The expert witness called by Petitioners and Intervenors disregarded the spoil banks in his calculations. His lack of confidence in the opposing expert witness's use of top-of-bank elevations was partly justified for the reasons stated below. Although a minor point, part of the argument of Petitioners and Intervenors' expert witness proved too much by asserting that levees cannot maintain water levels higher inside the levee than the existing ground elevation outside the levee. On the other hand, in showing that the proposed weir would not exacerbate flooding, the District's expert witness relied, not entirely justifiably, on the top-of-bank elevations. The District took only spot elevations of the spoil bank and then assumed that these elevations prevailed along the entire 3600 feet of canal upstream of the weir. The District did not inspect the upstream banks for unpermitted culverts, of which at least one was discovered during the lengthy hearing in this case. There is a possibility of material differences in elevations along the spoil banks. These spoil banks were not constructed to a specified elevation; they were an excavation byproduct that was haphazardly deposited beside the excavated canal. Additionally, the record suggests that this general area has been the site of unpermitted works, such as the installation of a culvert and creation of unpermitted canal plugs. In the months over which the hearing took place, Petitioners and Intervenors alertly found a culvert breaching the spoil bank upstream of the proposed weir. At least one of their representatives demonstrated superior familiarity with the spoil bank over the familiarity demonstrated by the District's representatives. It is a fair inference that, if the spoil bank was substantially missing at any point upstream of the proposed weir, Petitioners and Intervenors would have brought such evidence to the hearing. The absence of such evidence, coupled with the reasonable inferences that may be drawn from the concededly more cursory investigation of the site by the District, precludes a finding that the spoil bank is substantially missing at any material point so as to warrant the use of ground elevations, as used by the expert witness called by Petitioners and Intervenors. At best, from the perspective of Petitioners and Intervenors, the record supports the finding that the spoil banks may not be as continuously as high as the District posits, but they are not nearly as low (i.e., nonexistent) at any point as Petitioners and Intervenors contend. The two experts also disagreed over two subordinate inputs used in running the flood calculations. The expert called by Petitioners and Intervenors claimed that initial tailwaters (i.e., water elevations downstream of the weir) in excess of 8.53 feet were appropriate. Although the canal has experienced historically higher tailwaters than 8.53 feet, the expert did not explain adequately why such higher tailwaters should be used in running the model, especially since flood calculations are not used to predict flooding conditions in all storms, such as a 1000-year storm. Absent a showing that tailwater in excess of 8.53 feet would be present at the relevant time preceding or during the design storm event, the expert called by Petitioners and Intervenors failed to show why the District's tailwater input was unreasonable. On the other hand, the District's expert claimed that the model required an adjustment to the friction factor or Manning's N coefficient. This adjustment, which decreased the friction factor by an order of magnitude, approximated a bottom that was many times smoother than the actual bottom of the Merritt Canal. The District's expert did not explain adequately why the lower friction factor should be used in running the model, and he frankly did not demonstrate the same familiarity with this friction factor as did the expert called by Petitioners and Intervenors. The most likely inference is that the District's expert erred in making this adjustment. There was another controversy between the parties regarding a subordinate input for the flooding calculations. Petitioners and Intervenors raised the possibility that agricultural discharges from the Collier properties adjacent to the federal refuge, which the District ignored in its calculations, might further undermine any assurances as to flooding. This could have been useful information if developed in the record, but the record permits no basis to quantify the value of this additional discharge or ascertain its timing relative to wet and dry seasons and storm events, if in fact this agricultural discharge takes place at all. Also, offsetting any such discharge would be two factors: the District ran its calculations assuming a runoff rate 25 percent greater than that appropriately used by the Florida Department of Transportation for modeling the design storm event, and the District ignored the plugs in the I-75 borrow canals, which attenuate the runoff into the Merritt Canal. Although Petitioners and Intervenors incorrectly inputted ground elevation in place of the top-of-bank elevation--when the best elevation is somewhere in between these two values--their expert's calculations are useful for illustrating a scenario that, for this reason, exceeds the worst-case scenario. Again, this is an illustration of a scenario that predicts greater flooding than reasonably should be predicted because, in actuality, the restraining elevation is higher than ground elevation. Using the 8.53-feet initial value for tailwater, Petitioners' Exhibit 27 illustrates the different water elevations resulting from running the model with and without the excessive reduction of the friction factor. Petitioners Exhibit 27 illustrates the effect of the design storm on upstream water elevations with the gates open. Petitioners Exhibit 27 ignores the spoil banks and instead uses prevailing ground elevations. At the site of the proposed weir, the canal bottom is at about -1.5 feet NGVD. The proposed weir would add fixed barriers up to an elevation of 5.0 feet NGVD; the adjustable gates would, when closed, extend the barrier from 5.0 feet NGVD to 9.5 feet NGVD. Approximate existing ground elevation averages about 10 feet NGVD downstream of I-75, with one dip to below 9 feet NGVD about 600 feet downstream of I-75. For about 6000 feet upstream of I-75, where there is no spoil bank whatsoever, the average ground elevation, outside of the slough, is about 13 feet. The slough bottom in this area gently slopes from about 9 feet NGVD to 10 feet NGVD. Ignoring the spoil bank, Petitioners Exhibit 27 predicts flooding in two major areas in the design storm event, even with the gates open. One of these is about 300 feet long, starting about 400 feet downstream of I-75. The other is at least 300 feet long, starting near the northern extreme of the modeled area and running off the modeled area. The District did not survey in detail the spoil bank along the 300 feet downstream of I-75. There is no spoil bank upstream of I-75 because there is no dredged canal. The water elevation about 400 feet downstream of I-75 would be almost one foot greater than the ground elevation. The water elevation about 6000 feet upstream of I-75 will be as much as half of a foot greater than the ground elevation. At the more downstream point, the actual water elevation would exceed the District's projection by nearly three-quarter of one foot. At the more upstream point, the actual water elevation would exceed the District's projection by over 1.5 feet. Although the record could have been better developed on this important point, there is reasonable assurance that the existing spoil-bank elevations are sufficient to contain these flood elevations predicted by the expert called by Petitioners and Intervenors. Petitioners and Intervenors claimed that the District could achieve its stated purpose of extending the hydroperiod in the Florida Panther National Wildlife Refuge without increasing the risk or extent of flooding of adjacent uplands. Petitioners and Intervenors suggested that the District repair an existing plug in the Merritt Canal just south of I-75. (This "plug" is actually the original ground surface, which evidently was undisturbed during the construction of I-75. Given the excavation of canals on both sides of what is now a narrow strip of earth, the land resembles a plug, and this recommended order refers to it as a plug, although this term is descriptive only of the feature's present appearance, not its method of creation.) There are actually six plugs--again, in the broad sense of the word--in the vicinity of the junction of the Merritt Canal and I-75. Two plugs interrupt the flow into the Merritt Canal of the borrow canals to the north of I-75. Two plugs likewise interrupt the flow into the Merritt Canal of the borrow canals to the south of I-75. The last two plugs are in the Merritt Canal, a few feet north and south of I-75. Repairing the plug immediately south of I-75 would raise the water elevation by about 1.3 feet under the I-75 bridge. By about 2000 feet upstream of I-75, there is no significant difference between the water elevation using the model of Petitioners and Intervenors' expert for the proposed weir 3600 feet downstream of I-75 and the water elevation for the proposed plug repair just south of I-75. Repairing the plugs would have reduced the water elevation downstream of I- 75 by less than one half of a foot. Petitioners, Intervenors, and their expert have proposed a promising alternative to the proposed weir. The alternative appears to serve the stated purpose of the proposed activity at least as well as the proposed weir would, if not somewhat better due to its closer proximity to the targeted federal refuge, and the alternative project would cost much less to construct, maintain, and operate. The restorative nature of the work would probably relieve the District of the necessity of obtaining a permit. Perhaps the prospect of such work might motivate other state and federal agencies to grant the District access to the area at I-75 to build the weir at one of its first two locations. However, the issue is whether the District has provided reasonable assurance for the activity that it has proposed. As to flooding, the District has provided reasonable assurance that the proposed activity will not exacerbate flooding during the design storm events or even more severe storm events. Even assuming an absence of reasonable assurance as to flooding, the first criterion requires consideration of whether the proposed activity would adversely affect the public health, safety, and welfare or the property of others. Extending the hydroperiod of the federal refuge protects the property of others by reducing the period of time that the turf is dried out. This provides a wide range of environmental protection, including protection against the risk of fire caused by excessive drainage, for the federal refuge and other property in the area. Retarding the artificially high rate of drainage will improve water quality in at least two respects. The proposed weir will retard and reduce the nutrients conveyed down the canal and into the estuary into which it eventually empties. The proposed weir will also tend to restore somewhat the rate and timing of historic freshwater inputs on which the viability of the estuary and its inhabitants depends. Concerns about public health, safety, and welfare, as well as the property of others, cannot be severed from these broadscale environmental benefits to be derived from the proposed activity. Public health concerns are tied to these considerations. Thus, even if the District had failed to provide reasonable assurance as to flooding alone, the District has provided reasonable assurance that, on balance, the proposed weir will not adversely affect the matters set forth in the first criterion. Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitats The proposed weir will serve the conservation of a wide range of flora and fauna, as well as their wetlands habitat, within the targeted federal refuge. These species include listed species. The evidence does not support a finding that extending the hydroperiod of the federal refuge would in any way disturb the Florida panther. Navigation, Flow of Water, or Harmful Erosion or Shoaling The proposed weir will have not adversely affect navigation or the flow of water within the canal, and it will not cause erosion or shoaling. Fishing or Recreational Values or Marine Productivity in the Vicinity of the Activity The proposed weir will not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed weir. To the contrary, the proposed weir will enhance these values in the immediate vicinity of the proposed weir and downstream at the estuary at the mouth of the Merritt Canal. Temporary or Permanent Nature The proposed weir will be of a permanent nature. Significant Historic and Archaeological Resources The record provides no basis for a finding that the proposed weir jeopardizes significant historic and archaeological resources. Current Condition and Relative Value of Functions of Areas Affected by the Proposed Activity The federal refuge is functioning well environmentally, despite the adverse impact of dramatic disruptions of the natural drainage regime. The value of these functions is high. Likewise, the receiving estuarine waters are functioning well, despite the adverse impact of dramatic disruptions of the natural drainage regime. Extending the hydroperiod of the federal refuge will partially offset these historic disruptions. Thus, the proposed weir will assist in the functioning of natural systems that are now functioning well, but could use some help. Public Interest The proposed weir is not in an Outstanding Florida Water. Thus, the question is whether the proposed activity is not contrary to the public interest. The District has provided reasonable assurances as to the preceding seven criteria sufficient to demonstrate that, on balance, the proposed activity is not contrary to the public interest. Cumulative Impacts There is no evidence that the proposed weir will cause any adverse cumulative impacts upon wetlands or surface waters. Other Criteria The District has proved that the proposed weir would not violate any water quality standards. To the contrary, any effect from the proposed activity would be to improve water quality, especially downstream at the estuary. The restoration of conditions more typical of historic drainage would allow more nutrients to be captured upstream and would tend to restore the historic timing and volume of freshwater inputs into the estuary. For the reasons set forth above, the District has also provided reasonable assurance that the proposed activity meets the 11 criteria contained in Rule 40E-4.301, which largely duplicate the seven criteria discussed above, and the relevant provisions of the Basis of Review. It is true that the monitoring provisions are largely illusory because they provide no quantifiable parameter beyond which the District must take specified action. In other words, at best, the monitoring provisions assure that the District will collect post-operational flooding data, but they do not promise that the District will take any action if certain levels of flooding take place. However, the monitoring provisions are of little importance given the factual findings concerning flooding, as discussed above, and the legal requirements of the Basis of Review, as discussed below.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the permit for the construction of the proposed weir about 3600 feet south of I-75 in the Merritt Canal. DONE AND ENTERED this 25th day of June, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1998. COPIES FURNISHED: James W. McDonald, Jr., Esquire McDonald & Associates Community Plaza, Suite 306 15600 Southwest 288th Street Homestead, Florida 33030 A. Glenn Simpson Qualified Representative 5961 22nd Avenue Southwest Naples, Florida 34116 Marcy I. LaHart Associate Attorney South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416-4680 Francine M. Ffolkes Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Walter R. Shaw, Sr., pro se 1400 Northwest 62nd Avenue Sunrise, Florida 33313-6138 Cliffort L. Fort 8410 Northwest 16th Street Pembroke Pines, Florida 33024 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
