The Issue The issue in DOAH Case No. 98-3901 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to a maintenance dredging exemption from environmental resource permitting. The issue in DOAH Case No. 98-5409 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to an environmental resource permit for the construction of a surface water management system.
Findings Of Fact The Parties Respondent Deep Lagoon Boat Club, Ltd. (Applicant), owns and operates Deep Lagoon Marina. In DOAH Case No. 98-3901, Petitioner and Intervenor challenge Applicant's claim of an exemption to maintenance dredge three canals serving the marina. In DOAH Case No. 98-5409, Petitioner challenges Applicant's request for an environmental resource permit to construct and operate a surface water management system on the uplands on which the marina is located. By stipulation, Petitioner has standing. Intervenor is a nonprofit organization of natural persons, hundreds of whom reside in Lee County. The primary purpose of Intervenor is to protect manatees and their habitat. Many of the members of Intervenor use and enjoy the waters of the State of Florida, in and about Deep Lagoon Marina, and would be substantially affected by an adverse impact to these waters or associated natural resources, including manatees and their habitat. Deep Lagoon Marina is within the jurisdiction of the South Florida Water Management District (SFWMD). By agreement with SFWMD, Respondent Department of Environmental Protection (collectively, with the predecessor agency, DEP) is the agency with permitting jurisdiction in DOAH Case No. 98-5409. The Marina Deep Lagoon is a short, largely mangrove-lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. Deep Lagoon Marina is on Deep Lagoon, less than one-half mile from the Caloosahatchee River. Deep Lagoon Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns the uplands and either owns the submerged bottoms of the canals or has a legitimate claim to such ownership. The attorney who examined the title at the time of the 1997 conveyance testified that the canals are entirely landward of the original mean high water line, so that the then-owner excavated the canals out of privately owned upland. Thus, the attorney opined that the canal bottom is privately owned. Some question may exist as to the delineation of the historic mean high water line, especially regarding its location relative to the waterward edge of the red mangrove fringe, which DEP would consider part of the historic natural waterbody. There may be some question specifically concerning title to the bottom of the northernmost canal where it joins Deep Lagoon. However, the proof required of Applicant for present purposes is considerably short of the proof required to prove title, and the attorney's testimony, absent proof to the contrary, is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases. From north to south, Deep Lagoon Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Manatees and Boating The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. Water Quality The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one-day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. Original Permit There are three types of permits relevant to these cases. The first is a dredge and fill permit (sometimes referred to in the record as a wetland resource permit or water resource permit)(DAF permit). The second is a surface water management (sometimes referred to in the record as a management and storage of surface water (MSSW) permit or stormwater management permit)(SWM permit). The third is an environmental resource permit (ERP). Several years ago, responding to a mandate from the Legislature, DEP and the water management districts consolidated DAF permits, which historically were issued by DEP, and SWM permits, which historically were issued by the water management districts, into ERPs. At the time of this change, DEP adopted, within the jurisdictional areas of each water management district, certain of the rules of each district. In 1988, DEP issued a DAF permit to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips, with an additional 14,440 square feet of overwater decking, so as to raise its marina capacity to 150-174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. In general, the Original Permit authorizes Applicant to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The record contains various references to "MLW" or "mean low water," "MHW" or "mean high water," and "NGVD" or "National Geodetic Vertical Datum." The drawings attached to the Original Permit state that MHW equals 0.96 feet NGVD and MLW equals about 0.40 feet NGVD. The Original Permit authorizes activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposes several requirements designed "to ensure a net improvement in water quality." Among these requirements is that Applicant must obtain the ERP that is the subject of DOAH Case No. 98-5409 (New Permit). Specific Condition 5 states: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. [As cited, this subparagraph contains modifications stated in a letter dated March 26, 1997, from DEP to Applicant's predecessor in interest.] Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addresses the phasing of occupancy of the wet slips. Specific Condition 8 provides: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. * * * Specific Condition 11 adds: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 requires the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibits liveaboards at the marina. Specific Condition 15 adds various manatee-protection provisions. Plan Views C and D, which are part of the Original Permit, depict submerged bottom elevations for the north and central canals, as well as from the south canal at its intersection with the central canal. Dated August 30, 1995, these "existing" bottom elevations across the mouth of the north canal are about -7, -8, and -4 feet (presumably MLW; see second note to Plan View B). The western two-thirds of the north canal passes over bottoms of about -6 feet MLW. Proceeding east, the bottom deepens to -7 to -9 feet MLW before it tapers up to -7, -6, and finally -3 feet MLW at the head; and the eastern third of the north canal passes over bottoms of about -7 feet MLW that tapers up to -6 feet and -3 feet MLW. The submerged bottom at the mouth of the central canal is about -8 to -9 feet MLW. The bottom drops to -6 to -10 feet MLW at the intersection with the south canal. Proceeding east, the bottom deepens slightly as it reaches the head, where it is -8 feet MLW. The submerged bottom of the south canal runs from -9 feet MLW at the intersection with the central canal and runs about 0.5 feet deeper at the head. Petitioner and others challenged the issuance of the Original Permit in 1988. The permit challengers appealed a final order granting the Original Permit and certifying, under the federal Clean Water Act, that state water quality standards were met. DEP premised its certification on the concept that water quality standards encompassed a net improvement in water quality of the poorly flushed canals. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the above-described 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the Original Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DEP's certification of the activity as in compliance the federal Clean Water Act. Following remand, DEP issued a final order issuing the Original Permit. On the certification issue, the final order revoked the earlier certification of compliance and, citing 33 United States Code Section 1341 as authority, waived certification as a precondition to federal permitting. Maintenance Dredging: DOAH Case No. 98-3901 Background The contentions of Petitioner and Intervenor as to maintenance dredging are: the proposed dredging exceeded what was necessary to restore the canals to original design specifications or original configurations; the proposed dredging exceeded the maximum depth allowable for maintenance dredging of canals; the work was not conducted in compliance with Section 370.12(2)(d), Florida Statutes; the spoil was not deposited on a self-contained upland site to prevent the escape of the spoil into waters of the state; and the dredge contractor did not use control devices and best management practices for erosion and sediment control to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter describes the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assures that Applicant's contractor will use turbidity curtains "around the dredging and spoil unloading operation" and advises that the contractor will unload the spoil "to the north peninsula upland area." The letter states that the dredging "will be to the design depth/existing canal center line depth of -7 NGVD," which was established by the Original Permit, and will be "done in conjunction with the required dredging under [Original Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divide the dredging into two areas. For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals (for the south canal, a portion running from the head along the northeast half of the canal) and then replace these materials with clean backfill material. This information is for background only, as the Original Permit authorized this contaminant dredging. For 4.84 acres, which run through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. The cross-sections for the north canal reveal relatively extensive dredging beyond the vegetation lines on both sides of the canal bottom. The dredging would extend up to, but not beyond, the edges of the prop roots of the mangroves on both sides of the canal bottom. The contours reveal variable, proposed slope profiles for the submerged sides of the canals, but the dredging would substantially steepen the submerged slopes of the north canal. It is difficult to estimate from the cross-sections the average depth and width to be dredged from the north canal, but it appears that the cross-sections proposed the removal of substantial spoil (an average of 4-6 feet) from areas from 20-40 feet from each side of the deepest point in the north canal. The dredging would alter the two most affected cross-sections, which are just inside the mouth of the north canal, by widening the deepest part of the canal bottom by 85 feet--from about 15 feet to about 100 feet. The drawings proposed much smaller alterations to the bottoms of the central and south canals: typically, spoil about 2 feet deep and 20 feet wide. All but one of the cross-sections revealed that spoil would be dredged only from one side of the deepest point. Additionally, the dredging in these canals would not involve any submerged vegetation; all but one of the canal sides was lined by existing seawalls. By letter dated March 13, 1998, DEP stated that it had determined that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement that the Applicant obtain an ERP. The letter warns that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter adds that DEP may revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provides a point of entry for persons whose substantial interests are affected by DEP's determination. Following receipt of DEP's letter acknowledging the exemption, Applicant's contractor proceeded to maintenance dredge the three canals. The dredging of the north canal took eight weeks. Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the Original Permit. As indicated in the March 3 letter and permitted in the Original Permit, the contaminant dredging took place at the dead-end heads of the north and central canals and along the northeast half of a slightly longer section of the south canal, starting from its dead-end head. In maintenance dredging the canals, Applicant's contractor did not exceed the specifications regarding depth and width stated in its March 3 letter. To the contrary, the contractor sometimes dredged slightly narrower or slightly shallower profiles than stated in the March 3 letter. For example, the contractor dredged the north canal to -6 feet NGVD (or -5.6 feet MLW), rather than -7 feet NGVD, as shown in the March 3 letter. The Depths, Widths, and Lengths of Dredging The March 3 letter asserts that -7 feet NGVD is the permitted elevation of the canal bottoms, pursuant to the Original Permit. This is incorrect in two respects. First, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect for all but the relatively small part of each canal that DEP has determined is contaminated. The Original Permit specifies design elevations for canal bottoms only in the contaminated area within each canal. Nothing in the Original Permit permits bottom elevations for any portion of the bottoms of the three canals outside of these three contaminated areas. Second, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect, even for the contaminated areas. The March 3 letter states -7 feet NGVD, but the Original Permit specifies bottom elevations, for contaminated areas only, of -7 feet MLW in the south and central canals and -6 feet MLW in the north canal. Thus, due to the differences between NGVD and MLW, the March 3 letter proposes dredging that would deepen the south and central canals by about five inches deeper than the depth permitted in the Original Permit and the north canal by one foot five inches deeper than the depth permitted in the Original Permit. Moreover, nothing in the record clearly establishes all aspects of the original design specifications of the three canals, whether permitted or not, or even all aspects of their original dredged configurations, if not permitted. There is no dispute concerning one aspect of the dredged configuration of the three canals: their lengths. Although there may be some dispute as to the original mean high water line near the mouths of the north and central canals, the original length of the canals is evident from the uplands that presently define them. As to the depth of the canals, although direct evidence is slight, Applicant has sufficiently proved indirectly the depths of the mouths of the canals pursuant to original design specifications or, if not designed, original configurations. The proved bottom elevations are -7 feet NGVD for each canal. Applicant proved these depths based on the prevailing elevations in Deep Lagoon in the vicinity of the mouths of the north and central canal and bottom elevations in areas of Deep Lagoon that are not prone to sedimentation. Additional proof of the bottom elevation of -7 feet NGVD at the mouths of the canals is present in the slightly higher permitted bottom elevations at the dead- ends of the north and central canals and landward portion of the south canal. There is some problem, though, with the proof of the depth of the canal bottoms between their mouths and heads (or, for the south canal, its landward portion of known contamination). Although the problem of the depth of the canals between their heads and mouths might be resolved by inferring a constant bottom elevation change from the deeper mouth to the shallower head, an unresolveable issue remains: the width of this maximum depth. As already noted, without deepening the deepest part of either cross-section, the contractor widened the deepest points along two cross-sections by 85 feet each. In terms of navigability and environmental impact, the width of the maximum depth of a canal is as important as its maximum depth. As to the width of the lowest bottom elevations of the canals, Applicant has produced no proof of original design specifications or, if not designed, original configurations. Nor has Applicant produced indirect proof of historic widths. Nothing in the record supports an inference that Applicant's predecessor in interest originally dredged the canal bottoms as wide as Applicant "maintenance" dredged them under the claimed exemption. Nothing in the record supports an inference that Applicant's predecessor geometrically dredged the canals so that their sides were perpendicular to their bottoms. Nothing in the record describes a sedimentation problem that might have narrowed the canals by such an extent that the dredging of the present widths, especially in the north canal, would be restorative. Nothing in the record even suggests that the original motive in dredging was navigability, which might have yielded relatively wide canal bottoms, versus upland fill, which would yield canal bottoms as wide as needed, not for navigability, but for uplands- creation. After consideration of all the evidence, no evidence supports a finding that the proposed dredging profiles, in terms of the widening of the areas of lowest elevation in each canal bottom, bear any resemblance whatsoever to the original canal profiles, as originally (or at any later point) designed or, if not designed, as originally (or at any later point) configured. It is at least as likely as not that this is the first time that these canal bottoms, especially the north canal bottom, have ever been so wide at any bottom elevation approaching -7 feet NGVD. There is simply no notion of restoration or maintenance in the dredging that produced these new bottom profiles for these three canals. Transforming MLW to NGVD, -5 feet MLW is -4.6 feet NGVD. All proposed and actual maintenance dredging in the three canals dredged the canal bottoms to elevations lower than -5 feet MLW (or -4.6 feet NGVD), despite the absence of any previous permit for construction or maintenance of the canal from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers. Impact of Dredging on Manatees and Spoil Containment Prior to dredging, Applicant deployed turbidity curtains around the mouths of the two canals that discharge directly into Deep Lagoon. In this case, the turbidity curtains performed two functions. They contained turbidity and resuspended bottom contaminants within the mixing zone behind (or landward of) the curtains, and they excluded manatees from the dangerous area behind the curtains where the dredging was taking place. Petitioner and Intervenor object to the use of the turbidity curtains on two general grounds. First, they claim that the curtains failed to contain turbidity and resuspended contaminants from escaping the mixing zone. Second, they claim that the curtains adversely affected manatees. As executed, the maintenance dredging did not result in the release of turbidity or resuspended contaminants outside of the mixing zone due to the use of turbidity curtains. Applicant's contractor ensured that the curtains extended from the water surface to the canal bottom and sufficiently on the sides to prevent the escape of turbidity or resuspended contaminants. Although the March 3 letter did not indicate where the contractor would deploy the turbidity curtains, the important point, in retrospect, is that the contractor properly deployed the curtains. There is some question whether turbidity or resuspended contaminants flowed across the mangrove fringe and into the Iona Drainage District ditch. Applicant's witness testified that water flows across the fringe only during the highest three or four tides per month. Petitioner and Intervenor's witness testified that water flows across the fringe as often as twice per day. The actual frequency is likely somewhere between these two extremes, but, regardless of the frequency, there is insufficient evidence to find that any turbidity or resuspended contaminants flowed from the north canal into the Iona Drainage District ditch. Nor did the deployment of the turbidity curtains injure, harm, possess, annoy, molest, harass, or disturb any manatees. Applicant and its contractor carefully checked each canal for manatees before raising the turbidity curtains at the mouth of each canal, so as not to trap any manatees in the area behind the curtains. By ensuring that the curtains extended to the canal bottom and extended fully from side to side, they ensured that the curtains excluded manatees during the dredging. There is no evidence that a manatee could have entered the north canal from the Iona Drainage District ditch by crossing the red mangrove fringe; any breaks in the fringe were obstructed by prop roots that prevented even a kayaker from crossing the fringe without portaging. Applicant and its contractor checked for manatees during dredging operations. Petitioner and Intervenor contend that the mere presence of the turbidity curtains in an area frequented by manatees adversely affected the animals. However, this argument elevates a speculative concern with a manatee's response to encountering an obstruction in its normal path over the practical purpose of curtains in physically obstructing the animal so as to prevent it from entering the dangerous area in which the dredge is operating, as well as the unhealthy area of turbidity and resuspended contaminants in the mixing zone. Under the circumstances, the use of the turbidity curtains to obstruct the manatees from visiting the dredging site or mixing zone did not adversely affect the manatees. In general, there is no evidence of any actual injury or harm to any manatees in the course of the dredging or the preparation for the dredging, including the deployment of the turbidity curtains. Petitioner and Intervenor offered evidence that maintenance dredging would result in more and larger boats and deterioration of water quality, which would both injure the manatees. However, as noted in the conclusions of law, the Administrative Law Judge excluded from DOAH Case No. 98-3901 such evidence concerning long-term impacts upon the manatees following the dredging. As for spoil containment, Applicant's contractor segregated the contaminated spoil from noncontaminated spoil by placing the contaminated spoil in a lined pit in the uplands. The contractor also brought onto the uplands clean fill mined from a sand quarry for backfilling into the dredged contaminated areas. There is evidence of the clean fill subsiding from its upland storage site and entering the canal waters in the mixing zone. Partly, this occurred during the loading of the barge, which transported the clean fill to the dead-end heads of the canals where the fill was placed over the newly dredged bottoms. The fill escaped into the water at a location about 100 feet long along the north seawall of the central canal, but the evidence does not establish whether this location was within the contaminated area at the head of the canal or whether the maintenance or contaminant dredging had already taken place. If the fill subsided into the water inside of the contaminated head of the south canal and the subsidence occurred prior to the contaminant dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water inside the contaminated head of the south canal and the subsidence occurred after the contaminant dredging, the subsidence was harmless because the contractor intended to add the fill at this location. If the fill subsided into the water outside of the contaminated head of the south canal and the subsidence occurred prior to maintenance dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water outside the contaminated head of the south canal and the subsidence occurred after the maintenance dredging, the subsidence was harmless because it restored the canal bottom to a higher elevation following the dredging to an excessively low elevation. The subsidence of the clean fill into the water along the north side of the central canal is the only material that entered the water from the uplands during the dredging. Specifically, there is no evidence of dredged spoil entering the water from the uplands during or after the dredging. There is also no evidence that the maintenance dredging significantly impacted previously undisturbed natural areas. There is no evidence of such areas within the vicinity of Deep Lagoon Marina. New Permit: DOAH Case No. 98-5409 New Permit Seeking to satisfy certain of the requirements of Original Permit Specific Condition 5, Applicant filed with DEP, on December 10, 1997, an application for an ERP and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. Prior to its reformulation as an ERP, the New Permit sought by Applicant would have been a SWM permit. The application notes that the general upland elevation is 5 feet NGVD and that stormwater runoff presently sheetflows directly to adjacent waterways without any treatment. During the application process, Applicant's engineer Christopher Wright, submitted a letter dated February 27, 1998, to Jack Myers, who is a Professional Engineer II for DEP. In response to a request from DEP for a "written procedure . . . to assure the proper functioning of the proposed . . . system," the letter states: Since the system is not designed as a retention system and does not rely upon infiltration to operate properly[,] operation and maintenance is minimal. Items that will need regular maintenance are limited to removal of silt and debris from the bottom of the drainage structures and the bleed down orifice of the control structure. A maintenance and inspection schedule has been included in this re-submittal as part of Exhibit 14. In relevant part, Exhibit 14 consists of a document provided Mr. Wright from the manufacturer of the components of the surface water management system. The document states that the manufacturer "recommends that the landowner use this schedule for periodic system maintenance . . .." The document lists 16 sediment-control items, but it is unclear whether all of them are incorporated into the proposed system. Four items, including sediment basins, require inspections quarterly or after "large storm events" and maintenance consisting of the removal of sediment; the "water quality inlet" requires inspections quarterly and maintenance consisting of "pump[ing] or vacuum[ing]"; the "maximizer settling chamber" requires inspection biannually and maintenance consisting of "vacuum[ing] or inject[ing] water, suspend silt and pump chamber"; and the "chamber" requires inspection annually and the same maintenance as the maximizer settling chamber. The proposed system includes the water quality inlet and one of the two types of chambers. By Notice of Intent to Issue dated November 5, 1998, DEP provided notice of its intent to issue the New Permit and certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code Section 1341. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the Original Permit, DEP again waived state water quality certification. This waiver is consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. The notices of intent (collectively, NOI) recite the recent permitting history of the marina. This history includes the Original Permit, a since-expired MSSW permit issued in 1988 by SFWMD, and then-pending requests--apparently all since granted--to revise the Original Permit by replacing the flushing canal with culverts, relocating a travel lift from the main canal to the north canal, and adding liveaboards to the marina. (Although mentioned below, these revisions, in and of themselves, do not determine the outcome of DOAH Case No. 98-5409.) Reviewing the proposed development for the site, the NOI states that the northerly part of the project would contain an indoor dry boat storage barn, a marina service operation consisting of a ship store and miscellaneous buildings, a harbor master building, an upgraded fueling facility, a parts and service center, a restaurant, retail and commercial facilities, and paved parking areas. The southerly part of the project would contain a new indoor dry boat storage barn, a boat dealership building, and paved parking areas in place of the existing buildings. The NOI states that the proposed water quality treatment system would comprise dry detention systems of several underground vaults with an overall capacity based on the total impervious area, including roofs, receiving 2.5 inches of rain times the percentage of imperviousness. Given the relatively high imperviousness of the finished development, this recommended order considers the percentage of imperviousness to be 100, but ignores the extent to which the post-development pervious surfaces would absorb any rainfall. For storms producing up to 2.5 inches of runoff, the proposed surface water management system, of which the underground vaults are a part, would trap the runoff and provide treatment, as sufficiently sized contaminants settled into the bottom of the vaults. Because the vaults have unenclosed bottoms, the proposed system would provide incidental additional treatment by allowing stormwater to percolate through the ground and into the water table. However, the system is essentially a dry detention system, and volumetric calculations of system capacity properly ignored the incidental treatment available through percolation into the water table. The New Permit notes that the wet season water table is 1.2 feet NGVD, and the bottom of the dry detention system is 2.5 feet NGVD. This relatively thin layer of soil probably explains why DEP's volumetric calculations ignored the treatment potential offered by percolation. The relatively high water table raises the possibility, especially if Applicant does not frequently remove the settled contaminants, that the proposed system could cause groundwater contamination after the thin layer of soil is saturated with contaminants. In any event, the system is not designed for the elimination of the settled contaminants through percolation. The treatment system for the boat wash areas would be self-contained, loop-recycle systems that would permit the separation of oil and free-settling solids prior to reuse. However, the NOI warns that, "during heavy storm events"-- probably again referring to more than 2.5 inches of runoff--the loop-recycle systems would release untreated water to one of the underground vaults, which would, in turn, release the untreated water into the canals. Due to the location of the boat wash areas, the receiving waters would probably be the north canal. As reflected in the drawings and the testimony of Mr. Wright, the surface water management system would discharge at three points: two in the north canal and one in the south canal. (Vol. I, p. 206; future references to the Transcript shall cite only the volume and page as, for example, Vol. I, p. 206). 67. The NOI concludes that Applicant has provided affirmative reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder, including the Conditions for Issuance or Additional Conditions for Issuance of an environmental resource permit, pursuant to Part IV of Chapter 373, F.S., Chapter 62-330, and Sections SFWMD--40E-4.301 and 40E-4.302, F.A.C. The construction and operation of the activity will not result in violations of water quality standards and will not degrade ambient water quality in Outstanding Florida Waters pursuant to Section 62-4.242, F.A.C. The Applicant has also demonstrated that the construction of the activity, including a consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest, pursuant to Section 373.414(1)(a), F.S. However, the design capacity of the proposed surface water management system raises serious questions concerning the water quality of the discharges into the canals. Mr. Wright initially testified that the surface water management system would be over-taxed by "an extreme storm event, probably a 25- year storm event . . .." (Vol. I, pp. 208-09). The record contains no evidence of the frequency of the storm event that produces 2.5 inches of runoff for the relatively impervious post- development uplands; the record contains no evidence even of the frequency of the storm event that produces 2.5 inches of rainfall. According to Mr. Wright, the 25-year storm would typically produce 8-10 inches of rain. (Vol. I, pp. 223 and 233). As already noted, the relatively large area of imperviousness following upland development and the relative imperviousness of the upland soils present at the site suggest that the runoff will be a relatively large percentage of the rainfall produced by any given storm event. It thus appears that the design capacity of the system is for a storm substantially smaller and substantially more frequent than the 25-year storm. Attached to the NOI is a draft of the New Permit, which contains numerous specific conditions and conforms in all respects with the NOI. Omitting any mention of SFWMD's Basis of Review, the New Permit addresses, among other things, the operation, inspection, and maintenance of the components of the proposed system. As set forth in the testimony of Michael Bateman, who is a Professional Engineer III and statewide stormwater coordinator for DEP, the surface water management system's operation depends on periodic pumping of the "thick, fine sediment," which appears to be a "cross between mud and sand" and will be laden with oil, grease, metals, and other contaminants. (Vol. II, p. 66). However, contrary to Mr. Bateman's assurance that the New Permit requires the periodic pumping or removal of contaminants that have precipitated out of the runoff in the dry detention system and dropped to the bottom sediment (Vol. II, p. 20), neither the NOI nor the New Permit requires, in clear and enforceable language, the periodic removal of settled solids from the underground vaults or their manner of disposal. New Permit Specific Condition 8 requires that Applicant maintain the boat wash area in "functioning condition," although specific inspection and maintenance requirements are omitted from the New Permit. New Permit Specific Condition 7 requires that Applicant "inspect and clean" all stormwater inlets "as necessary, at least once a month and after all large storm events," although the New Permit fails to specify that cleaning shall be by either pumping or vacuuming. By contrast to the marginally adequate inspection and maintenance provisions applicable to the boat wash area (inspections are required in Specific Condition 6, cited below) and stormwater inlets, the New Permit completely fails to specify enforceable inspection and maintenance requirements for the underground vaults. New Permit Specific Condition 6 addresses the operation of the vault as follows: Upon completion of the construction of the stormwater collection and underground vault (Infiltrator) systems and on an annual basis thereafter by September 30 of each year, the Permittee shall submit reports to the Department as to the storage/treatment volume adequacy of the permitted system. The reports shall also include, but not be limited to, the condition of stormwater inlets and control structures as to silt and debris removal and the condition of the inlet wire mesh screens to function properly. The boat wash down areas shall be inspected for proper operation, i.e., no signs of wash water overflows from the containment area, condition of the containment area curbing, etc. Such reports shall include proposal of technique and schedule for the maintenance and/or repair of any deficiencies noted and shall be signed and sealed by a Florida registered Professional Engineer. A report of compliance with the aforementioned proposal shall be submitted by the Professional Engineer to the Department upon completion of the proposed work which shall be accomplished within three months of the initial report for each year. New Permit Specific Condition 6 requires annual reports concerning the sufficiency of the capacity of the underground vaults (first sentence), annual reports of the status of silt- and debris-removal from the inlets and control structures and the condition of the inlet wire mesh screens (second sentence), inspection at no stated intervals of the boat wash area (third sentence), and annual reports with suggestions of maintenance schedules and repairs for the items mentioned in the first two sentences (fourth sentence). New Permit Specific Condition 6 promises only the preparation of a maintenance schedule at some point in the future. Failing to supply an enforceable inspection and maintenance program, Specific Condition 6 indicates that Applicant shall consider in the future techniques and scheduling of maintenance, presumably based on the report concerning system capacity. Such a requirement may or may not impose upon Applicant an enforceable obligation to adopt an enforceable inspection and maintenance program in the future, but it does not do so now. There is no reason why the New Permit should not impose upon Applicant an initial, enforceable inspection and maintenance program incorporating, for example, the clear and enforceable requirements that Applicant inspect all of the underground vaults no less frequently that once (or twice, if this is the applicable recommendation of the manufacturer) annually and, at clearly specified intervals, remove the sediments by resuspending the sediments in the water, pumping out the water, and disposing of the effluent and sediments so they do not reenter waters of the state. Although the record does not disclose such requirements, Applicant could possibly find manufacturer's recommendations for the boat wash components and incorporate them into an enforceable inspection and maintenance program more detailed than that contained in Specific Condition 8. However, for the reasons noted below, water quality considerations require a substantial strengthening of such a program beyond what is set forth in this paragraph as otherwise acceptable. At present, the bottom line on inspection and maintenance is simple: the New Permit does not even incorporate by reference the manufacturer's recommended inspection and maintenance schedule, which Mr. Wright provided to Mr. Myers. Nor was this shortcoming of the New Permit in its treatment of inspection and maintenance necessarily missed by Mr. Wright. He testified that he submitted to DEP the manufacturer's maintenance program (Vol. I, p. 205), but when asked, on direct, if the "permit in any way incorporate[s] the commitment in your application to this maintenance?" Mr. Wright candidly replied, "That I don't know." (Vol. I, p. 206). Satisfaction of Basis of Review Section 5 Basis of Review Section 5--specifically Section 5.2.1(a)--imposes the "volumetric" requirement of 2.5 inches times the percentage of imperviousness, as discussed above and in the conclusions of law. Petitioner does not dispute Applicant's compliance with this volumetric requirement, and the record amply demonstrates such compliance. Applicability of Basis of Review Section 4 The main issues in this case are whether the environmental and water quality requirements of Basis of Review Section 4 apply to the direct, secondary, and cumulative impacts of the proposed activity. Because the record lacks any indication of other relevant pending or vested permits, without which, as noted in the conclusions of law, one cannot assess cumulative impacts, the remainder of the findings of fact will not discuss cumulative impacts, although, to some extent, increased boating pressure constitutes a secondary impact and a cumulative impact. Without regard to the differences between direct and secondary impacts, DEP has taken the position in this case that it could lawfully issue the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5 and without consideration of the requirements of Basis of Review Section 4. In large part, DEP's witnesses justify this position by reliance on the historic differences between DAF permits and SWM permits and the fact that the New Permit is a former-SWM ERP. As discussed in detail in the conclusions of law, the Basis of Review imposes different requirements upon former-DAF and former-SWM ERPs, although the Basis of Review does not refer to DAF or SWM permits by their former names. The identifying language used in the Basis of Review for former-DAF ERPs is "regulated activity" "located in, on, or over surface waters or wetlands." References to "regulated activity" without the qualifying clause indicate that the following requirement applies to former-DAF ERPs and former-SWM ERPs. Several witnesses for DEP and Applicant testified that Applicant was entitled to the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5. For example, Mr. Wright testified that the water quality requirements for the New Permit required only a "cookbook calculation" to determine volume. (Vol. I, p. 204). Agreeing with a question that analysis of the water quality portion of the system requires "simply a straightforward mathematical calculation," Mr. Wright testified that the quality of discharged water, following treatment, will comply with state water quality standards in storms producing no more than 2.5 inches of runoff. (Vol. I, pp. 210-11). When asked to explain his answer, Mr. Wright testified, "It's kind of an implied situation, in that if you follow the guidelines that you are required to follow with respect to the calculations of water quality, that the end product is going to be in compliance with state standards." (Vol. I, p. 211). DEP witnesses agreed with Mr. Wright's analysis. For instance, Mr. Bateman testified, "The stormwater portion of the Basis of Review gets at that question [meeting water quality standards] by stating, 'if you follow the design criteria in the basis, you are presumed to meet water quality standards.'" (Vol. II, p. 40). Mr. John Iglehart, the program administrator for DEP's South District Office in Fort Myers, testified on the same point: "if . . . you meet the criteria, the engineering criteria, than you have met the presumption that you meet the rule." (Vol. III, p. 52). Mr. Myers also agreed, testifying, "with the stormwater management system, it's for the most part, let's say, fairly cut and dried as far as meeting criteria that is established within these rules and Basis of Review." (Vol. III, p. 144). He added: "Since the criteria for reviewing stormwater management systems and the discharge is based upon a presumed compliance with stormwater criteria and with state water quality, it is presumed it [the proposed system] does meet it." (Vol. III, p. 148). Mr. Bateman explained the historic basis for the water quality presumption given surface water management systems that meet the volumetric requirements: the ERP is a combination of the surface water management rules and the environmental . . ., the dredge-and-fill, and they didn't merge, they didn't marry very well in certain areas. In stormwater we look at--it's a technology- based criteria. We say, "If you build it this way, treat 80 percent of the average annual pollutant load, we're going to give you the permit on the presumption that you're doing the best you can. You're going to meet standards. Once you get into the wetlands, we take--we put on whole new sets of glasses. ALJ: Are you saying that the old dredge-and- fill is more performance-based, and the old MSSW is more technology-based, in that if you've put in the required technology, you've done your job? WITNESS: That is--yes. Dredge-and-fill is a more case by case. We look at the water quality. We look at ambient conditions. We look at hydrographics [here, largely tidal flushing]. It's more like a waste load allocation in that we're very specific. In stormwater, we can't afford to be. MS. HOLMES: So what you're saying is you can't point to the specific rule provision or regulation that excludes these criteria from surface water management systems? WITNESS: Well, you have to read [Basis of Review] Section 4 as a whole. 4.1 is specific to wetlands and other surface waters. 4.2 is environmental review. I mean, if you look at the thing in total, and the--and I realize it's confusing. But these rules are exactly the same in all the water management districts. They were developed together as the wetland criteria, the new dredge-and-fill criteria. They're exactly the same. The stormwater rules of all the [water management districts] is all different. That is for another day, making those all consistent. So these environmental wetland- type dredge-and-fill criteria are all the same, and they refer to in-water impact. [All references in the transcript to "end water" should have been "in-water."] ALJ: What do you mean by that term, "in- water impact?" WITNESS: In other words, dredge-and-fill impact. Construct and--I can't-- MS. HOLMES: May I continue, then? ALJ: Let him answer. What were you going to say? WITNESS: I think it takes a little knowledge of how these [rules] developed to know how they're applied, unfortunately. In other water management districts, it's clearer that these are in-water impacts. (Vol. II, pp. 57-59). In testifying to the exclusivity of the volumetric requirements in Basis of Review Section 5, with respect to former-SWM ERPs, these witnesses likewise opined that the secondary-impact analysis required in Basis of Review Section 4 also was inapplicable to the New Permit. For example, after testifying both ways on the necessity of considering secondary impacts in issuing former-SWM ERPs, Mr. Bateman concluded, "I'm not sure that [the requirement of considering secondary impacts] applies in this case. Certainty the rules apply, I mean, the rules apply. But certain rules are not applicable in this particular instance. I mean, I'm trying to think of a secondary impact associated with stormwater system, and it's difficult for me to do so." (Vol. II, p. 45). Mr. Bateman then testified that DEP did not consider such secondary impacts, as additional boat traffic, and probably did not consider cumulative impacts, such as other marinas. (Vol. II, pp. 51-52). In response to a question asking to what extent DEP considered post-development inputs of contaminants, such as heavy metals, when issuing a former-SWM ERP, Mr. Bateman testified: I have to tell you, very little. I mean, we--stormwater is pretty black and white. The link to secondary and cumulative impact is generally associated with in-water impact. And I realize the line is a little grey here. When we build a Wal-Mart, we don't think about how many cars it's going to put on [U.S. Route] 41 and what the impact might be to an adjacent lake. We just don't. It would be a little burdensome. In this case, I mean, it's a little greyer. (Vol. II, p. 47). Mr. Bateman was then asked to compare the relative impacts from a vacant, but developed, upland without a surface water management system with a proposed activity that would add a surface water management system to facilitate an intensification of land uses on the site so as to add new contaminants to the runoff. Mr. Bateman testified that DEP would apply only the volumetric requirement and not address the complex issue of weighing the potential environmental benefit of a new surface water system against the potential environmental detriment of contaminant loading (at least in storm events greater than the design storm event). Mr. Bateman explained: "The way it works, it is not a water quality-based standard. In other words, we don't go in and say it's so many pounds [of contaminants] per acre per year now. We're going to make it this many pounds per acre per year, and look at it in a detailed fashion. We do the [Best Management Practices], retain an inch and you're there." (Vol. II, p. 49). Agreeing with Mr. Bateman that DEP was not required to consider secondary impacts resulting from the regulated activity, Mr. Iglehart testified: "It's our thought that we don't really look at secondary and cumulative impacts for the stormwater permit. . . . If it [the former-SWM ERP application] meets the criteria, it gets the permit. That--in the ERP, the previous dredge-and-fill side looks at the secondary and cumulative. The stormwater just--like Mr. Bateman testified." (Vol. III, p. 52). After some ambivalence, Mr. Myers also testified that DEP was not required to consider secondary impacts for the New Permit: WITNESS: . . . I did not or I do not consider secondary impacts for the stormwater management system. MS. HOLMES: So, what about cumulative impacts? WITNESS: No. MS. HOLMES: So it's your testimony that you did not review secondary and cumulative impacts-- WITNESS: That's correct. MS. HOLMES: --of this system? WITNESS: What I can say is that the existing system out there, from what I can tell, does not have any stormwater treatment. Basically, it's running off into the canals. The proposed project will provide stormwater treatment for, not only the new construction, which is proposed mainly on the northern peninsula, but it is also provided for that area which is now existing, it will provide stormwater treatment for that area also. And I consider that--I don't consider that to be a secondary impact. I see it as an offsetting improvement to potential as far as the water quality. (Vol. III, pp. 144-45). As discussed in detail in the conclusions of law, these witnesses have misread the provisions of the Basis of Review applicable to the New Permit. As noted in the conclusions of law, the requirements in the Basis of Review of analysis of secondary and cumulative impacts upon water quality and manatees are not limited to in-water or former-DAF activities. Satisfaction of Basis of Review Section 4 Direct vs. Secondary Impacts In terms of construction, the direct impacts of the proposed surface water management system are negligible. Nothing in the record suggests that the construction of the proposed system will violate any of the requirements of Basis of Review Section 4. In terms of maintenance, the direct impacts of the proposed surface water management system are negligible, except for the omission from the New Permit of any provision for the safe disposition of the contaminant removed from the underground vaults. However, the maintenance issues are better treated with the operation issues. In terms of operation, the direct impacts of the proposed surface water management system are substantial. As discussed in the conclusions of law, the analysis of the direct impacts of the operation of the proposed system is limited to the current level of uplands and marine activity at the marina. These direct impacts involve two aspects of the operation of the proposed system: the design capacity and the inspection and maintenance (including disposal of sediment) of the system components. As discussed in the conclusions of law, the secondary impacts involve the intended and reasonably expected uses of the proposed system. These impacts consist of the increased uplands and marine uses associated with the addition of 100 new wet slips, 227 new dry slips, and 115,000 square feet of building space with a restaurant. Apart from their contention that Applicant is required only to satisfy the volumetric requirements of Basis of Review Section 5, Applicant and DEP have contended that Petitioner is estopped from raising direct and secondary impacts because DEP considered these impacts when issuing the Original Permit four years ago. Perhaps the most obvious factual problem with this contention is that it ignores that the New Permit authorizes, for the first time, the construction of the 227 new dry slips and 115,000 square feet of buildings. As counsel for DEP pointed out during the hearing, the Original Permit was a DAF permit and did not extend to these upland uses. The contention that DEP considered these developments as secondary impacts because they were shown on drawings attached to the Original Permit gives too much significance to nonjurisdictional background items shown in drawings without corresponding textual analysis. More generally, the efforts of DEP and Applicant to restrict the scope of this case rely on a misreading of Original Permit Specific Condition 5. The purpose of Original Permit Specific Condition 5 is to "ensure a net improvement to water quality." The purpose of each of the requirements under Specific Condition 5 is to achieve an actual, not presumptive, improvement in water quality. Prohibiting the issuing agency from fully analyzing the direct and secondary impacts of the proposed surface water management system reduces the likelihood that the ensuing New Permit will perform its role, as envisioned in the Original Permit, of helping to achieve an actual, net improvement in water quality. The concept of a "net" improvement is exactly what DEP's witnesses disclaim having done in this case--balancing the potential environmental benefits to the water resources from the proposed surface water management system against the potential environmental detriments to the water resources from the development and land uses that are intended or reasonably expected to result from the construction of the proposed system. The failure to analyze the net gain or loss inherent in this important provision of Specific Condition 5.B undermines the likelihood that the effect of Specific Condition 5.B--a net improvement in water quality--will be achieved. It is therefore illogical to rely on Specific Condition 5.B, as DEP does, as authority for an artificially constrained analysis of the eligibility of the proposed system for a former-SWM ERP. The estoppel argument also ignores that Original Permit Specific Condition 5.B anticipated that the issuing agency would be SFWMD. It is unclear how the parties to the Original Permit, including DEP, would bind what appeared at the time to have to be SFWMD in the exercise of its lawful authority in issuing SWMs or former-SWM ERPs. The attempt of Applicant and DEP trying to limit the scope of this case also overlooks numerous changed circumstances since the issuance of the Original Permit. Changed circumstances militating in favor of the comprehensive analysis mandated for former-SWM ERPs include: increased trends in manatee mortality; increased boating pressure; persistent water quality violations in terms of dissolved oxygen, copper, and total coliform bacteria; a dramatic deterioration in dissolved oxygen levels; the initial presentation for environmental permitting of the previously unpermitted 227 additional dry slips and the 115,000 square feet of buildings; the current canal bottom profiles resulting from excessively deep maintenance dredging; the absence of an updated flushing study; and the failure to dredge the flushing canal required by the Original Permit. Disregarding the environmental and water quality requirements of Basis of Review Section 4 in this case would thus repudiate Specific Condition 5.B, especially when, among other things, the water quality of the canals has deteriorated dramatically with respect to dissolved oxygen, the canals continue to suffer from serious copper violations, the canals were recently maintenance dredged to excessive depths, no flushing study has examined these subsequent developments, and the intended uses to be facilitated by the New Permit more than double the capacity of the existing marina. 2. Water Quality The direct impacts of the proposed surface water management system, based on current levels of uplands and marine use at the marina, would adversely affect the quality of the receiving waters, in violation of Basis of Review Section 4.1.1(c). The excessively increased depths of the canals, especially with respect to the substantially widened depths of the north canal, raise the potential of water quality violations, especially given the history of this site. Potential sources of contaminants exist today in the canal bottoms, uplands, and marine activity associated with the marina. The potential for water quality violations, especially with respect to dissolved oxygen, increases in the absence of an updated flushing study. The potential also increases with the introduction of liveaboards and failure to dredge the flushing canal (or its replacement with culverts). In the face of these current threats to water quality, the New Permit fails to require a system with adequate capacity to accommodate fairly frequent storm events and fails to impose clear and enforceable inspection, maintenance, and disposal requirements for the underground vaults. Although better, the inspection and maintenance requirements for the stormwater inlets and boat wash area unnecessarily present enforcement problems. The effect of these failures in design capacity and inspection and maintenance is synergistic. Deficiencies in vault capacity mean that storms will more frequently resuspend the settled contaminants in the vaults and flush them out into the canal waters. Excessively long maintenance intervals and poor maintenance procedures will increase the volume of contaminants available to be flushed out into the canal waters. Improper disposition of removed contaminants endangers other water resources. The introduction of untreated or inadequately treated water into the canals means the introduction of two substances that will contribute to the current water quality violations. Organics, such as from the boat wash operations and other uplands uses, will raise biochemical oxygen demand, which will accelerate the deterioration in dissolved oxygen levels. Copper removed during boat wash operations, leaching from painted hulls, or remaining in the uplands from past marina operations will also enter the canals in this fashion. On these facts, Applicant has failed to provide reasonable assurance that the operation of the proposed surface water management system will not result, in the long-term, in water quality violations. Applicant has failed to demonstrate that the operation of the proposed system, even as limited to existing levels of use of the uplands and marine waters, will not contribute to existing violations of dissolved oxygen and copper levels. Obviously, the situation is exacerbated by consideration of the uses intended and reasonably expected to follow the construction of the proposed system. With the growing popularity of boating in Lee County over the past 20 years, it is reasonably likely that an expanded marina operation, located close to downtown Fort Myers, will successfully market itself. Thus, many more boats will use the marina because it will offer more wet and dry slips and new buildings, including a restaurant, and the pressure on water quality will intensify with the intensification of these uses. The added intensity of upland and marine uses will contribute to the above-described violations of water quality standards for dissolved oxygen and copper, probably will contribute to the above-described violations of water quality standards for total coliform bacteria and lead, and may contribute to the recurrence of water quality violations for other parameters for which the canals were previously in violation. On these facts, Applicant has failed to provide reasonable assurance that the direct and secondary impacts of the proposed system will not adversely affect the water quality of the canals. 3. Manatees and Manatee Habitat By letter dated June 26, 1998, from a DEP Environmental Specialist to a DEP permitting employee, the Environmental Specialist provided an initial opinion concerning the revisions that Applicant sought to the Original Permit so as to allow liveaboards, replace the flushing canal with culverts, and relocate the travel lift to the north canal. The letter accompanies a Manatee Impact Review Report, also dated June 26, 1998. The Manatee Impact Review Report notes the pending application for the New Permit. The report considers at length the extent of manatee use of Deep Lagoon and the nearby portions of the Caloosahatchee River. The Manatee Impact Review Report states: This project [i.e., the relocation of the boat lift to the north canal, addition of liveaboards, and conversion of the flushing canal to flushing culverts] is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project, as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft-related injuries, disturbance contributing to stress, and alteration of natural behaviors. The secondary impacts expected with this project are compounded by the cumulative secondary effects from other facilities in this system. Just south of this project site, another marina was recently constructed (Sun City Corporation aka Gulf Harbor Marina aka River's Edge), which has approximately 190 wet slips. Since October 1995, there have been seven watercraft-related deaths within five miles of this project location. The Gulf Harbor Marina was constructed in late 1995, and was almost fully occupied during 1996. Watercraft-related manatee deaths increased significantly during this time, with one in December 1995, two in 1996 and four in 1997. Additional on-water enforcement by the City of Cape Coral was considered part of the offsetting measures to address the expected impacts to manatees from increases in boat density. This offsetting measure, however, appears to be ineffectual at this time. The Manatee Impact Review Report concludes that the north canal and its mouth are "particularly important" for manatee because of the availability of freshwater from the adjoining Iona Drainage District ditch immediately north of the north canal and "historical use indicates that this area appears to be the most frequently used area in the Deep Lagoon system." The report cautions that the relocated travel lift may significantly increase the number of boats in the little-used north canal, whose narrowness, coupled with moored, large boats on the one side, "would produce significant, adverse impacts to the endangered manatee." The Manatee Impact Review Report finds that Applicant failed to provide reasonable assurance regarding the conservation of fish and wildlife, unless several new conditions were added. These conditions include prohibitions against boat launching along the shoreline of the north canal and the addition of manatee-exclusion grating to any culverts that may be approved. As defined in this recommended order, the direct impacts upon manatees from the proposed surface water management system would be moderate. As defined in this recommended order, direct impacts would not involve any increase in boating pressure. The greater impacts would be in the deterioration of two measures of water quality that are crucial to manatees: dissolved oxygen and copper. However, the secondary impacts are dramatic, not de minimis, and arise from the intended and reasonably expected uses to follow from the construction of the proposed surface water management system. The increased boat traffic intended and reasonably expected from more than doubling the marina capacity, through the addition of 100 wet slips and 227 dry slips, and the addition of 115,000 square feet of buildings, including a restaurant, would adversely impact the value of functions provided to manatees by the affected surface waters. Manatee mortality has increased as boat traffic has increased. Substantial numbers of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. On these facts, Applicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species. 4. Minimization and Mitigation Due to their contention that Basis of Review Section 4 does not apply to this case, DEP and Applicant did not demonstrate compliance with the minimization and mitigation sections of Basis of Review Section 4. However, the record supports the possibility of design alternatives for water quality impacts, if not manatee impacts, that DEP and Applicant must consider before reanalyzing the direct, secondary, and cumulative impacts of the proposed system on the water resources and, if appropriate, potential mitigation options. Mr. Bateman testified that SFWMD is the only district that permits surface water management systems relying on the settling out of sediments in the bottom of a storage-type detention system. (Vol. II, p. 18). He explained that other districts rely on systems that, taking advantage of the three to four feet typically minimally available between ground surface and the top of the water table, retain the runoff and allow it to percolate into the ground. (Vol. II, p. 19). One relatively straightforward design alternative, which would address water quality issues, would be to perform a flushing study; analyze applicable drainage level of service standards imposed by state, regional, and local authorities; and increase the capacity of the surface water management system to accommodate the runoff from storms of sufficient size and frequency that would be accommodated by the proposed system. Another feature of this design alternative would be to impose for each component of the system a detailed, enforceable program of inspection, maintenance, and contaminant-disposal. This program would incorporate the manufacturer's recommendations for the manner and minimum frequency of inspection and maintenance, but would require more frequent removal of contaminated sediments during periods when larger storms are more numerous (e.g., a specified wet season) or more intense (e.g., a specified hurricane season), as well as any periods of the year when the marine and upland uses are greatest (e.g., during the winter season, if this is the period of greatest use). As testified by Mr. Bateman, the proximity of the water table to the surface, as well as South Florida land costs, discourage reliance upon a conventional percolation-treatment system, even though the site's uplands are 5 feet NGVD and the water table is 1.2 feet NGVD. The bottom of the proposed system is 2.5 feet NGVD, which leaves little soil for absorption. If the nature of the contaminants, such as copper, does not preclude reliance upon a percolation-treatment system, DEP and Applicant could explore design alternatives that incorporate more, shallower vaults, which would increase the soil layer between the bottom of the vaults and the top of the water table. If the technology or contaminants preclude reliance upon such an alternative, the parties could consider the relatively costly alternative, described by Mr. Bateman, of pool-like filters with an "actual filtration device." (Vol. II, pp. 19-20). The preceding design alternatives would address water quality concerns, including as they apply to manatees, but would not address the impact of increased boating upon manatees. The record is not well developed in this regard, but DEP and Intervenor have considerable experience in this area, and it is premature to find no suitable means of eliminating or at least adequately reducing the secondary impacts of the proposed system in this crucial regard as well. In any event, Applicant has failed to consider any design alternatives to eliminate or adequately reduce the direct and secondary impacts of the proposed surface water management system. Having failed to consider minimization, DEP and Applicant have failed to identify the residual direct and secondary impacts that might be offset by mitigation. Applicant has thus failed to mitigate the direct and secondary impacts of the proposed surface water management system.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order revoking its determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the application for an environmental resource permit in DOAH Case No. 98-5409. DONE AND ENTERED this 24th day of November, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1999. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 T. Elaine Holmes, Attorney 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether, and what, reasonable mitigative conditions are necessary to protect the interest of the public and the environment, prior to issuing Petitioner's default permit.
Findings Of Fact Application and Default Petitioner's application is to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing 650 foot-long man-made canal of the same width and depth, normal (perpendicular) to old Central and South Florida Flood Control (now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the northwest shore of Lake Okeechobee. Petitioner's initial, incomplete application filed in DEP's Port St. Lucie office on August 31, 2000, included: the proposed project's location by County, section, township, and range; its legal description; a sketch of its general location and surrounding landmarks; a SFWMD letter verifying conformity with the requirements of a "No Notice General Permit for Activities in Uplands" of a drawing for a proposed pond expansion (to a size less than half an acre), "which will provide borrow material necessary for a house pad and access drive"; a description of water control Structure 127, together with its purpose, operation, and flood discharge characteristics, which were said to describe water levels in Buckhead Ridge, the name of the subdivision where the project was proposed; two virtually identical copies of a boundary survey for Petitioner's property (one with legal description circled) showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, at a scale of one inch equals 200 feet; two more virtually identical copies of the boundary survey at the same scale showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, and the proposed canal extension and house locations; and a copy of a 1996 aerial photograph of Petitioner's property and existing canal, and vicinity. The application did not describe a proposed method or any other details of construction, include any water quality information, or include a water quality monitoring plan. On September 15, 2000, Petitioner filed an additional page of the application form with DEP's Punta Gorda office. The page added the information: "Digging to be done with trac-hoe." No other specifics of the proposed construction method were included. What happened after the filing of the application is described in Tuten I and Tuten II, which are the law of the case. However, those opinions do not explain the delay between Tuten I and the issuance of DEP's proposed ERP with conditions approximately two years later. The evidence presented at the final hearing explained only that counsel of record for DEP promptly asked district staff to draft a proposed default ERP with conditions that "would probably track the RAI that had been sent out prior to the default." DEP's district staff promptly complied and forwarded the draft to DEP's Office of General Counsel in Tallahassee, which did not provide any legal advice as to the draft ERP for almost two years. There was no further explanation for the delay. As reflected in Tuten II and in the Preliminary Statement, it was DEP's position that the proper procedure to follow after its default was to issue a proposed ERP with conditions and that it would be Petitioner's burden to request an administrative hearing to contest any conditions and to prove Petitioner's entitlement to a default ERP with conditions other than those in DEP's proposed ERP. DEP's Proposed General Conditions The conditions DEP wants attached to Petitioner's default permit include general conditions taken from SFWMD's Rule 40E-4.381, which are appropriate, as indicated in the Preliminary Statement and Conclusions of Law, and as conceded by Petitioner's expert. While the Rule 40E-4.381 general conditions are appropriate, Petitioner takes the position (and his expert testified) that some of the general permit conditions contained in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that "issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules"), are more appropriate general conditions to attach to Petitioner's default ERP, even if technically inapplicable, because the Chapter 62 Rules govern the operation of a permitted project (whereas the former govern the construction of a permitted project) and are "more protective of the environment." Actually, all of the rules contain general conditions that govern both construction and operation phases of an ERP, and all are "protective of the environment." There is no reason to add general conditions taken from Rules 62-4.160 and 62-4.070(7) to the applicable general conditions contained in Rule 40E-4.381. DEP's Proposed Specific Conditions (i) In General The conditions DEP wants attached to Petitioner's default permit also include specific conditions which essentially require that Petitioner provide the information in the RAI sent in December 2000, together with additional specific conditions thought necessary to protect the environment in light of the lack of detail in the application without the answers to the RAI. Some DEP's proposed specific conditions are designed to ascertain whether the application would provide reasonable assurance that permitting criteria would be met. (They make the requested information subject to DEP "approval" based on whether reasonable assurance is provided.) In general, those specific conditions no longer are appropriate since DEP is required to issue a default permit. (Looked at another way, inclusion of those specific conditions effectively would un-do the default, in direct contradiction of the court's opinion Tuten I and Tuten II.) See Conclusion of Law 52, infra. On the other hand, some of the RAI information was designed to ascertain the proposed method and other details of construction. Pending the "answers" to those "RAI conditions," DEP also wants broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. Petitioner opposes DEP's proposed broad specific conditions. He takes the position that it was incumbent on DEP in this proceeding to use discovery procedures to ascertain Petitioner's intended method of construction and tailor specific conditions to the method of construction revealed through discovery. At the same time, Petitioner opposes DEP's proposed specific conditions requiring RAI-type information, including the details of his proposed construction method. Notwithstanding the positions Petitioner has taken in this case, his expert testified that Petitioner intends to use a steel wall inserted between the water and upland at the end of the existing canal, phased excavation from the upland side, and removal of the steel wall in the final phase of construction. Assuming that method of construction, Petitioner takes the position (and his expert testified) that the statutes, rules, and permit conditions acceptable to Petitioner, and which generally prohibit pollution of the environment, are adequate. Even if the statutes, rules, and permit conditions acceptable to Petitioner would be adequate for the method of construction Petitioner now says he will use, Petitioner's application does not in fact commit to a method of construction. All Petitioner's application says is that he intends to dig with a trac-hoe. Without a binding commitment to a method of construction, it was appropriate for DEP to take the position that specific conditions were necessary to ascertain the method of construction Petitioner would use and, pending the "answers" to those "RAI conditions," and to impose broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. In his PRO, Petitioner committed to use the construction method described by his expert during the hearing, as follows: Excavation of any spoil shall be done by means of a mechanical trac-hoe; Prior to the excavation of any soil, Petitioner shall first install an isolating wall, such as interlocking sheet pile, between the existing man-made canal, and the proposed canal extension; The mechanical excavation shall be done in such a manner such that the excavated soil is not deposited in wetlands or in areas where it might be reasonably contemplated to re-enter the waters of the State of Florida; After the proposed canal extension is excavated to its project limits in the foregoing manner, the side slopes of the canal extension shall be allowed to revegetate prior to removal of the isolating wall. With a condition imposing this method of construction, fewer and narrower specific conditions will be necessary. ii. Seriatim Discussion DEP's proposed Specific Condition 1 requires a perpetual conservation easement prohibiting docking and mooring of water craft on all portions of Petitioner's property within the canal extension in order to "address cumulative impacts." But DEP did not prove that the proposed conservation easement was reasonably necessary to protect the interest of the public and the environment. First, DEP did not prove that there would be any cumulative impacts, much less unacceptable cumulative impacts, from Petitioner's project. See § 373.414(8), Fla. Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if unacceptable cumulative impacts were proven, those could be addressed in other permit cases (assuming no DEP default in those proceedings), since the concept of cumulative impacts essentially requires an applicant to share acceptable cumulative impacts with other similar permittees, applicants, and foreseeable future applicants. See Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27, 2002). As Petitioner points out, the easement further described in Specific Condition 1 appears to be overly broad for its stated purpose in that it would cover "the legal description of the entire property affected by this permit and shown on the attached project drawings," which could be interpreted to include not just the canal extension but the entire extended canal, or even the entirety of Petitioner's 6.6 acres of property. Indeed, the latter might have been the actual intention, since DEP's witness testified that Specific Condition 1 also was intended to address impacts from fertilizer runoff and septic tank leaching from new homes built along the canal. Although some of those impacts (as well as future construction of additional homes and docks) actually are secondary impacts, not cumulative impacts, it is possible that they can be addressed in DEP or SFWMD proceedings on future applications, as well as in Department of Health proceedings on septic tank installations. DEP's proposed Specific Condition 2 requires that: spoil material from the dredging to be "used for the sole purpose of constructing a single-family fill pad" on Petitioner's property under a pending permit; spoil "be placed in a manner so as not to affect wetlands or other surface waters"; and the "spoil disposal location shall be shown in the drawings required by Specific Condition #4 below." DEP did not prove that the first requirement was reasonably necessary to protect the interest of the public and the environment. First, it is unreasonable since Petitioner already has built the referenced single-family fill pad and a home on top of it. Second, the reason DEP's witness gave for this requirement was that, under an operating agreement with SFWMD (which was officially recognized), DEP only has jurisdiction to take action on single-family uses (which he defined to include duplexes, triplexes, and quadriplexes) but not on larger multi-family and certain other projects. However, the operating agreement on jurisdiction is not a reason to place Specific Condition 1 on the use of spoil material on Petitioner's default permit. SFWMD can regulate, in permitting proceedings under its jurisdiction, the placement of fill material for multi- family construction or other projects not under DEP jurisdiction. In addition, under the operating agreement, jurisdiction can be "swapped" by written agreement in cases where deviation from the operating agreement would result in more efficient and effective regulation. The second two requirements under Specific Condition 2 are reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 3 requires disclosure of all pending and issued permits for the property from SFWMD, Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP did not prove that this is reasonable or reasonably necessary to protect the interest of the public and the environment. DEP probably has all such permits and can easily obtain any it does not have. DEP's proposed Specific Condition 4 requires fully dimensional plan view and cross-sectional drawings of the property and area to be dredged, before and after dredging, including a north arrow and the water depths in and adjacent to the dredge area. DEP's witness stated that the primary purpose of this part of the condition is to provide hydrographic information normally provided in an application (or required in an RAI) so that DEP's hydrographic engineer can ascertain flushing characteristics, which are pertinent primarily to the dissolved oxygen water quality parameter and to heavy metals from boat use. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate since DEP is required to issue a default permit. See Finding 9, supra. However, information regarding flushing characteristics, combined with other specific conditions, is reasonable and necessary to protect the interest of the public and the environment. See Finding 27, infra. In addition, the plan view and cross-sectional drawings required by Specific Condition 4 are to include the location of navigational obstructions in the immediate area, any roads, ditches, or utility lines that abut the property; any encumbrances, and any associated structures. DEP's witness stated that the primary purpose of this information is to determine whether Petitioner has provided reasonable assurance that the "public interest" test under Rule 40E-4.302 is met, and make sure that management, placement, and disposal of spoil material do not infringe on property rights or block culverts and cause flooding. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. However, information regarding the location of culverts to assure that management of spoil does not cause flooding is reasonable and necessary to protect the interest of the public and the environment. In addition to objecting to having to provide RAI information as a "default permittee," Petitioner's expert asserted that the information requested in Specific Condition 4 would be provided as part of the "as-built" drawings required by General Condition 6. But General Condition 6 does not require "as-built" drawings. Rather, it requires an "as-built" certification that can be based on "as-built" drawings or on-site observation. Besides, the purpose of the "as-built" certification is to determine "if the work was completed in compliance with permitted plans and specifications." Without the information requested in Specific Condition 4, there would only be vague and general permitted plans and specifications and hydrographic information. Finally as to Specific Condition 4, Petitioner objects to the requirement that the drawings be sealed by a registered professional engineer. However, Petitioner cites to General Condition 6, which requires that the "as-built" certification be given by a "registered professional" and cites Rule Form 62- 343.900(5), which makes it clear that "registered professional" in that context means a registered professional engineer. DEP's proposed Specific Condition 5 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that the canal extension will not violate water quality standards due to depth or configuration; that it will not cause a violation of water quality standards in receiving water bodies; and that it will be configured to prevent creation of debris traps or stagnant areas that could result in water quality violations. The reasonable assurance is to include hydrographic information or studies to document flushing time and an evaluation of the maximum desirable flushing time, taking several pertinent factors into consideration. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. In addition, Petitioner's expert testified without dispute that the information requested could take more than 180 days and cost approximately $20,000. However, it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be configured so as have the best practicable flushing characteristics. DEP's proposed Specific Condition 6 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that construction of the canal extension will meet all permit criteria set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. DEP's proposed Specific Condition 7 requires Petitioner to submit existing water quality information for DEP approval within 180 days of permit issuance and before any construction. In this instance, DEP's approval would not be a determination on the provision of reasonable assurance but a determination as to the reliability of the water quality information, which is necessary to establish a baseline for assessing and monitoring the impact of the project. For that reason, the information is reasonable and necessary to protect the interest of the public and the environment. Petitioner's expert testified that the information could cost $2,000-$3,000 to produce (and more, if DEP rejects the information submitted, and more information is required). He also testified that water quality information already is available, including over 25 years worth of at least monthly information on all pertinent parameters except biological oxygen demand and fecal coliform, at a SFWMD monitoring station in the Rim Canal at Structure 127 (a lock and pump station at the Hoover Levee on Lake Okeechobee) approximately 8,000 feet away from Petitioner's canal. DEP did not prove that the SFWMD information would not serve the purpose of establishing baseline water quality for Petitioner's canal for all but the missing parameters. For that reason, only water quality information for the missing parameters is reasonable and necessary to protect the interest of the public and the environment in this case. DEP's proposed Specific Condition 8 requires that, if the water quality information required by Specific Condition 7 shows any violations of state ambient water quality standards, Petitioner must submit for DEP approval, within 180 days of permit issuance and before any construction, a plan to achieve net improvement for any parameters shown to be in violation, as required by Section 373.414, Florida Statutes. See also BOR § and 4.2.4.2. Normally, if applicable, this information would be expected in an application or RAI response. Petitioner's expert testified that this condition would require Petitioner to help "fix Buckhead Ridge" (unfairly) and that it would cost lots of money. But Petitioner did not dispute that the law requires a plan for a "net improvement," which does not necessarily require a complete "fix" of water quality violations, if any. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of a net improvement plan. See Finding 9, supra. But a specific condition that Petitioner implement a plan to achieve net water quality improvement in the event of any water quality violations would be reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 9 requires Petitioner to submit for DEP's approval, at least 60 days before construction, detailed information on how Petitioner intends to prevent sediments and contaminants from being released into jurisdictional waters. DEP asserts that this specific condition asks for a detailed description of how the applicant will comply with various subsections of BOR § 4.2.4.1 that address short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be constructed using adequate turbidity barriers; stabilize newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity; avoid propeller dredging and rutting from vehicular traffic; maintain construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands and other surface waters; and prevent any other discharges during construction that will cause water quality violations. DEP's proposed Specific Condition 10 requires Petitioner to submit, at least 60 days before construction, detailed information regarding Petitioner's plans for handling spoil from dredging, including "discharge details, locations retention plans, volumes, and data used to size the disposal cell(s)." It allows this information to be combined with the Specific Condition 2 submittal. It also requires spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP asserts that this specific condition (like Specific Condition 9) is necessary to comply with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition requiring spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP's proposed Specific Condition 11 requires Petitioner to submit "as-built" drawings to DEP's Punta Gorda office with 30 days after completion of construction, "as required by General Condition #6." Petitioner's expert testified that this condition was unreasonable only because it duplicates General Condition 6 and two statutes. But General Condition 6 actually does not require "as-built" drawings, see Finding 9, supra, and it is not clear what statutes Petitioner's expert was referring to. For these reasons, and because it provides a filing location, Specific Condition 11 is reasonable and reasonably necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 12 requires Petitioner to "maintain the permitted canal free of all rafted debris by removal and property upland disposal." DEP asserts that this specific condition is necessary to comply with BOR § by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). Rafted debris, which may be of an organic or inorganic nature, can accumulate at the end of canals due to wind, waves, boats, or other forces. Such organic rafted debris may rot and, by creating a high biological oxygen demand, rob the water of dissolved oxygen. Petitioner's only expressed opposition to this condition is that the conservation easement in Specific Condition 3 might prevent compliance. While it is unclear how the easement would prevent compliance, the issue is eliminated if no conservation easement is required. DEP's proposed Specific Condition 13 requires Petitioner to use turbidity screens during construction for compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The turbidity screen requirements detailed in this specific condition are typical best management practices that contractors use and are a standard condition placed in permits of this nature by DEP. Petitioner contends that turbidity screens are unnecessary given his intended construction method and that other conditions are sufficient to cover DEP's concerns. However, as indicated, the application does not commit to a method of construction. With the application in its current state, Specific Condition 13 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 14 requires Petitioner to "ensure that any discharge or release of pollutants during construction or alteration are not released into wetlands or other surface waters that will cause water quality standards to be violated." Again, this condition is intended to ensure compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While this specific condition seems general and perhaps duplicates other conditions (which was Petitioner's only point of contention), DEP added it in an attempt to make sure the possible and not uncommon release of pollutants from construction equipment was addressed. As such, the condition is appropriate. DEP's proposed Specific Condition 15 provides details on the use of turbidity screens. Petitioner's primary points of contention are that turbidity screens are not needed for his intended construction method and that other conditions are sufficient without this condition. As such, the relevant issues already have been addressed in connection with Specific Condition With the application in its current state, Specific Condition 15 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 16 requires Petitioner to used staked filter cloth to contain any turbid run- off and erosion from created slopes of the canal extension. This is the most common best management practice and is a standard condition for ERP permits dealing with side slopes that may affect water quality. Unstable slopes can result in chronic turbidity, which is detrimental to wildlife. Unstable slopes also can lead to upland runoff being deposited into the water along with debris and sediment. Such runoff can bring deleterious substances such as heavy metals and nutrient-loaded substances that might impact dissolved oxygen levels in the water. Petitioner's primary points of contention on Specific Condition 16 are that, like turbidity screens, staked filter cloth is not needed for Petitioner's intended construction method and that other conditions are sufficient without this condition. (Petitioner also questions why the condition gives Petitioner up to 72 hours from "attaining final grade" to stabilize side slopes, but the condition also requires side slope stabilization "as soon as possible," and the 72-hour outside limit seems reasonable.) As such, the relevant issues already have been addressed in connection with Specific Condition 13 and 15. With the application in its current state, Specific Condition 16 is appropriate subject to a demonstration by Petitioner that staked filter cloth is not needed if he uses the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 17, 18, 19, and 20: details required long-term water quality monitoring and reporting [#17]; establishes sampling intervals and requires Petitioner to submit a "plan to remediate" if monitoring shows water quality violations or "a trend toward future violations of water quality standards directly related to the permitted canal" [#18]; allows "additional water quality treatment methods" to be required if water quality monitoring shows it to be necessary [#19]; and allows water quality monitoring requirements to be modified (which "may include reduction in frequency and parameters . . . or the release of the monitoring process"), "based on long term trends indicate that the permitted canal is not a source to create water quality violations [#20]." These conditions are intended to ensure compliance with BOR § 4.2.4.2 by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The evidence was that these specific conditions are standard for ERP permits where a constructed system may lead to water quality violations in the long term. Contrary to Petitioner's contentions, conditions of this kind are not dependent on a post-construction finding of water quality standard violations (even though DEP defaulted on Petitioner's application). Besides contending that monitoring requirements in Specific Conditions 17 and 18 are unnecessary, Petitioner also contends that they are too extensive and not tailored to Petitioner's intended construction, but DEP proved their necessity, even assuming the construction method committed to in Petitioner's PRO. Petitioner complains that Specific Condition 19 is vague and that Petitioner's ERP does not provide for "water quality treatment." But the present absence of post-construction water quality treatment should not preclude the possible future imposition of some kind of water quality treatment if monitoring shows it to be necessary. For this kind of condition, the absence of detail regarding the kind of treatment to be imposed is natural since it would depend on future events. DEP's proposed Specific Condition 21 merely requires that Petitioner's project comply with State water quality standards in Florida Administrative Code Rules 62-302.500 and 62- 302.530. Petitioner contends that this is duplicative and unnecessary. But it certainly is not unreasonable to be specific in this regard. No Improper Purpose As part of his request for attorney's fees under Section 120.595, Florida Statutes, Petitioner necessarily contends that DEP participated in this proceeding "for an improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Even assuming that DEP should be considered a "nonprevailing adverse party," Petitioner's evidence did not prove that DEP's participation was for an "improper purpose." To the contrary, DEP "participated" initially because Petitioner filed an application. DEP's denial of Petitioner's application was not proven to be "for an improper purpose" but rather for the purpose of attempting to protect the environment. The propriety of the denial was litigated in Tuten I, which made no finding that the denial was "for an improper purpose" and which ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." The two-year delay between Tuten I and Tuten II was not fully explained, but Tuten II also made no finding that the denial, or the delay, or DEP's proposed ERP with conditions were "for an improper purpose" and again ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." While DEP's views on the nature of the hearing to be conducted for purposes of determining "reasonable mitigative conditions" was rejected, it was not proven that DEP argued its views "for an improper purpose" or that its participation, once its views were rejected, was "for an improper purpose," as defined by statute. To the contrary, the evidence was that DEP participated in this proceeding in an attempt to place conditions on Petitioner's permit which DEP thought were necessary to protect the environment, many (although not all) of which are accepted in this Recommended Order. As Petitioner accepts and points out, it remains necessary for Petitioner to construct and operate his project in a manner that does not violate environmental statutes and rules. But without any water quality information or monitoring, DEP's enforcement of those laws and rules will be hamstrung.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Petitioner a default ERP, to expire five years from issuance, to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing man-made canal, as applied for, subject to: DEP's proposed General Conditions 1-19; DEP's proposed Specific Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5, and 7-10, as modified by the Findings of Fact; and the construction method committed to in Petitioner's PRO (see Finding 14, supra. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006.
Findings Of Fact Petitioner, Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. On April 19, 1983, Petitioner applied to DER for a permit to dredge approximately 1480 cubic yards to a depth of 4' mean low water to create a boat basin behind his house on the property referenced above, and to construct a walkway and fishing dock encompassing approximately 1,235 square feet. The proposed project lies and would be performed in waters of the State of Florida. On April 25, 1983, DER notified Petitioner that his application was incomplete and that certain specified information was necessary to evaluate the application and to deem it complete. On May 24, 1983, DER received additional information from Petitioner, in response to its request. However, certain information was still lacking, including aerial photographs, a hydrographic survey, and consent from the Department of Natural Resources (DNR) for the use of state-owned lands which may be involved in the project. On June 1, 1983, DER notified Petitioner that all of the requested information had not been submitted. Petitioner did not respond to DER's correspondence. On July 19, 1983, DER requested Petitioner to notify DER if he wanted to proceed with his application. Petitioner responded on August 1, 1983, that he needed additional time to supply requested information. On September 20, 1983, Petitioner sought advice from DER about whether he could delete the dredging portion of his project and get approval only for the proposed walkway and dock. DER responded by letter on September 28, 1983, notifying Petitioner that the proposal was a major modification of his application, and enclosing a form to be submitted to DER along with such modification. The letter notified Petitioner that even if only the dock was sought to be permitted, DNR approval would still be required, and DER has no control over the DNR approval process. Petitioner did not contact DER in response to its latest correspondences. On November 28, 1983, DER then issued a notice of intent to deny the application for Petitioner's failure to provide necessary information which would render the application complete and fully reviewable by the DER staff. Petitioner has still not provided aerial photographs, a hydrographic survey, or DNR approval to DER, and offered no such evidence at hearing. The aerial photographs are necessary to review the project's potential impacts on surrounding properties and water bodies. The hydrographic survey is essential since Petitioner is proposing to entrain a large body of water which may not be able to meet State water quality standards. DNR approval is required by statute before DER can issue a permit that may involve state-owned lands. The Petitioner's testimony and evidence merely established his belief that he originally thought the dock and channel project exempt, that he thought settlement of federal litigation with the U.S. Army Corps of Engineers and his predecessor in title, permitted the installation of his rip-rap seawall and fill and that, at DER's behest, he later dismantled the dock and partially refilled the hand-dug channel leading to it. Nowhere in Petitioner's case was evidence offered of reasonable assurances that the "pollution events, envisioned by the authority cited below, will not occur, nor that DNR approval of the use of State submerged lands for the project has been secured.
Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13) The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River. DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Jeffrey C. Sweet, Esquire Post Office Box 5386 Daytona Beach, Florida 32018 Jeffrey David Evans Twelve Venetian Circle Port Orange, Florida 32019 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the application of Respondents Linda J. and Shirley Ann Brooks for a dredge and fill permit at property located in Levy County, Florida, should be approved, pursuant to Chapters 253 and 403, Florida Statutes, and PL 92-500. At the hearing, the applicants presented the testimony of two witnesses and submitted four exhibits in evidence. Petitioners presented the testimony of four witnesses and submitted five exhibits in evidence. Respondent Department of Environmental Regulation called two witnesses and submitted ten exhibits in evidence. Petitioners and Respondents (applicants) have submitted posthearing final argument which include proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact On January 30, 1984, a Joint Application of the Department of the Army/Florida Department of Environmental Regulation was filed by Shirley Ann Brooks and Linda J. Brooks to construct an 8 foot by 25 foot deck to a proposed addition to a one-bedroom residential building on their water front property on Jackson Island which is located within the city limits of Cedar Key, Florida. The existing house had a deck over the intertidal zone and a dock extending out from the deck approximately 44 feet. The applicants' father, Bernard T. Brooks, Jr., had sought building permits from the local zoning officials of Cedar Key in 1983, which brought the project to the attention of Petitioners Grover S. and Pearl J. Book and Richard M. and Lola Roppel who own property across from but inland of the applicants' lot. They attended the local zoning hearings involving the project. Roppel also observed the applicants' contractor, Floyd Taylor, cutting vegetation and piling it on Roppel's adjacent leasehold area. Complaints from Roppel to DER prompted one of the agency's environmental specialists, Gene Medley, to meet with Bernard Brooks and Taylor in January 1984 concerning the need for permits and to designate the departmental line of jurisdiction based on its regulatory vegetative index. He determined that the line of jurisdiction was at a point five feet landward of the waterward end of the existing deck and made it known to Brooks that the proposed project would require a departmental permit. The water classification of the project area is Class III. (Testimony of B. Brooks, Medley, Taylor, Roppel, DER Exhibits 1, 7, Respondent's Exhibit 2) In February 1984, the applicants obtained the local building permits and the contractor cleared the land and commenced construction. Medley visited the site on March 26, 1984, to inspect the project and prepare a permit application appraisal. He found that construction had already begun on the house and that one piling had been placed for the proposed new deck which was located about ten to fifteen feet beyond the existing old deck. Medley told the contractor to stop construction since a permit had not been issued. Although Taylor, the contractor, agreed to the request, when Medley visited the property again on April 23, he observed that a concrete retaining wall had been constructed. In addition, sand fill material in an indeterminate amount had been placed on the project site. Prior to this visit, Medley had recommended that the project be disapproved in that the construction of a deck over the existing intertidal marsh vegetation would reduce primary productivity by the limitation of light available for photosynthesis. He had found that the vegetation inhabitating the intertidal zone at the project site consisted of a fifteen to twenty foot band of spartina alterniflora and sparse numbers of black mangrove and black rush at the landward edge of the spartina. Above the spartina, he had observed a ten to fifteen foot band of sea purslane forming a dense ground cover. Such vegetation along the shoreline served several ecological functions by stabilizing the land to prevent erosion and providing an energy source in the estuarine food web, plus a habitat for aquatic and semiaquatic organisms. Medley had further found that water quality would be adversely impacted by the construction of the deck since the plants and organic sediments trapped by the plants assimilate and filter pollutants from upland runoff as well as pollutants found in the water column. This recommendation was adopted by the Department which issued an Intent to Deny notice to the applicant on April 12, 1984. The Department of Natural Resources expressed no objection to the project in its letter of March 13, 1984. However, a representative of the Corps of Engineers visited the site on April 10, 1984, and found that a retaining wall and fill material had been placed below the mean high waterline to an extent of approximately 6 to 8 feet, and that pilings had been placed inside the wall. The contractor was informed that this was a violation of pertinent law and that all work should be stopped. Thereafter, by letter of April 17, 1984, the Corps of Engineers issued a Cease and Desist Order to the applicants to preclude them from further activity involving the placement of a building and fill material in a wetland as well as navigable waters. The applicants! permit application was returned by the Corps of Engineers with the statement that it would not be processed until the enforcement matter had been resolved. On April 30, 1984, representatives of DER and the Corps of Engineers met with Mr. Brooks and the contractor. The applicant agreed to remove the retaining wall and all fill material, and grade the area to the adjacent wetland elevation. The retaining wall was thereafter moved and the sand fill placed in the upland area. A small amount of the footing of the wall was not removed. The wall was reconstructed at a point some 5 feet landward from its original position. Although the building overhang is within the jurisdiction of DER, it does not impact significantly on the vegetation in that sufficient light is available to permit photosynthesis. In the opinion of DER experts, the project will eliminate some 75 square feet of transitional vegetation, but this loss will not degrade water quality or other natural resources to such an extent as to be contrary to the public interest. Petitioner Roppel is of the opinion that the shaded area is considerably more extensive than that calculated by Departmental personnel, but the latter's estimate and conclusions are accepted as more persuasive in the light of all the circumstances. Petitioner Roppel also submitted photographs showing that fill material had been removed from the project site and claimed that it had migrated into the adjacent waters to such an extent as to affect water depth at his nearby dock. Although it is evident that some unstabilized fill material was washed into the water, there was insufficient evidence provided as to the extent of the erosion or as to any impact it might have had on water quality or marine resources. At the time of hearing, the area in front of the new wall had revegetated to some extent. Petitioners' expert, Dr. Howard T. Odum, is a recognized authority on the subject of wetlands ecology. However, his brief visit to the site on the day before the hearing resulted only in an opinion that shading had done "some impacting," but he was unable to state if the project violated state water quality standards. Although his opinion as to the cumulative adverse impacts of small projects on marine life is undoubtedly correct, insufficient evidence was presented as to the extent of such impacts at the project area to warrant a finding in this regard concerning the instant project. (Testimony of B. Brooks, Taylor, Medley, Melberg, Roppel, Odum, Tyler, DER Exhibits 2, 4-5, 7-10, Respondents' Exhibits 3-4, Petitioners' Exhibits 1-5) As a result of the applicants' revision of its application on May 1, 1984, which eliminated the concept of a new deck and left only a 3 foot by 25 foot portion of the new residential building within state waters, DER issued a Notice of Intent to issue the requested permit/water quality certification for the revised project on May 18, 1984. The notice reflected that the part of the new addition to be waterward of the apparent mean high waterline would be supported by three pilings and result in covering by the structure of approximately 75 square feet of sparse marsh vegetation. The notice further stated that although such shading would impact the vegetation, it would not eliminate it or its function of maintaining water quality by its assimilative capacity. The notice further indicated that the Department was satisfied that reasonable assurances had been provided that the short-term and long-term effects of the proposed activity would not result in the violation of cater quality standards, or interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, or create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. Finally, the notice indicated that the permit would be issued with conditions to provide for turbidity controls during construction and that all fill placed on uplands should be stabilized in a manner to prevent any erosion into waters of the state. On June 4, 1984, the Corps of Engineers issued its permit to the applicants for the placement of 3 support pilings and construction of a residential structure extending 4 feet waterward of the mean high waterline. (Testimony of Medley, Tyler, DER Exhibit 6, Respondent's Exhibit 1)
Findings Of Fact The following findings of fact are based on the evidence presented and relate both to Fairfield's MSSW and CUP applications: Fort George Island is an approximately 900 acre island located northeast of the City of Jacksonville in Duval County, Florida. It is bounded to the north and east by the Fort George River, to the west by an extensive salt marsh, and to the south by Batten Island and the St. Johns River. The island is separated from the Atlantic Ocean by Little Talbot Island. There are presently approximately 16 homes on Fort George Island, an existing 18-hole golf course with clubhouse, the Kingsley Plantation State Park in the north and the Rollins site surface waters on the northern two-thirds of the island are Class II waters, while the waters to the south are Class III. The following factors concerning Fort George Island are of ecological significance: Existence of a large area of coastal hammock; Value of the coastal hammock for scientific research and as a food source for migrating song birds; Fact that the Island is located in an aquatic preserve; Salt marshes on the western side of the Island which are a food source for wading birds; State lands on the Island which are utilized as wildlife and plant preserve, as well as for historical purposes; Estuaries on the western side of the Island which function as primary nursery areas for commercial and sport fishery species, as well as for shrimp, oysters and crabs; Existence of commercial oyster leases on the western side of the Island; and Public use of the Island's shoreline for oystering and clamming. Fairfield owns approximately 757.5 acres on Fort George Island which it proposes to develop into a "planned unit development" of 1,343 dwelling units, a 27 hole golf course, and approximately 80,000 square feet of commercial development. The approximate density of the development will be 1.8 units per acre. Approximately 80% of Fairfield's property is currently forested, and after development approximately 35% will remain undisturbed habitat. The City of Jacksonville approved the "planned unit development" on January 10, 1983. Because the Department of Community Affairs had determined on August 11, 1982, that this development was a "development of regional impact," Fairfield submitted an Application for Development Approval to the Department, the Northeast Florida Regional Planning Council, and the City of Jacksonville, which subsequently approved the proposed development in an Amended Development Order. On January 25, 1984, the Florida Land and Water Adjudicatory Commission approved the Amended Development Order (ADO). In addition to approving the development of maximum of 1,343 units, 80,000 square feet of commercial area, two 18 hole golf courses (one already in existence), and a marina with not more than 50 slips, the ADO required Fairfield to conduct a 12 month study and prepare a Master Resource Management Plan prior to development. Specifically, Fairfield was required to demonstrate that there is a sufficient supply of potable ground water to serve the entire development without adverse effects on the Floridan Aquifer and other existing legal users; establish the ambient conditions of the water surrounding Fort George Island and the ambient climatic conditions of the Island and Rollins Sanctuary through a 12 month monitoring program; identify all endangered, threatened, unique, rare, notable and "species of special concern" and determine their habitat requirements; address surface water quality and quantity, terrestrial and wetlands biology, and ground water quality and quantity for the entire project; and submit a revised Master Land Use Plan, consistent with the Master Resource Management Plan, to the City of Jacksonville's Planning Commission for its approval. Further, the ADO required Fairfield to demonstrate that it could retain the 100 year, 24-hour storm (calculated to be 11.04 inches of rain in 24 hours), and prevent degradation of the established ambient conditions of the waters surrounding Fort George. Finally, the ADO required Fairfield to submit its Master Resource Management Plan to the City, Regional Planning Council, Department of Community Affairs, Department of Environmental Regulation, Department of Natural Resources, Game and Fresh Water Fish Commission, and the District, for their, review, comment, and in some cases approval. After review and comment by these agencies, the City of Jacksonville Planning Commission approved the Master Resource Management Plan on January 29, 1986, from which no appeal was taken. Case Number 85-3537 (MSSW) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's MSSW application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's conceptual MSSW permit application the permit number 4-031-002AC. Fairfield is a Delaware corporation authorized to do business in Florida. Its address is 3520 Piedmont Road, N.E., Atlanta, Georgia 30305. The proposed MSSW will serve Fairfield's development on Fort George Island, located in Duval County at Section 34, Township 15, Range 29 East. Petitioner Friends of Fort George, Inc., is a not-for- profit Florida Corporation, whose principal office for the transaction of business is located at 11251 Fort George Road, East, Jacksonville, Florida 32226. Petitioner in Intervention Southeastern Fisheries Association is a Florida not-for profit corporation whose address is 312 East Georgia Street, Tallahassee, Florida 32301. Petitioner in Intervention Logan Diving, Inc., is a Florida corporation whose address is 5731 St. Augustine Road, Jacksonville, Florida 32207. Petitioners in Intervention Florida Audubon Society and Duval Audubon Society are not-for-profit Florida corporations whose principal offices for the transaction of business are located at 1101 Audubon Way, Maitland, Florida 32751 and 2°65 Forest Circle, Jacksonville, Florida 32217. Individual Petitioners William E. Arnold, Jr., William M. Bliss, Doris B. Chappelle, Leo E. Chappelle, Mr. & Mrs. Rhodes Gay, Dr. & Mrs. William J. Knauer, Jr., Camillus S. Lengle, Jr., and Mr. & Mrs. J. W. Lucas are natural persons and citizens of the State of Florida who are owners of real property on Fort George Island. On August 27, 1985, the District gave Notice of its intent to deny MSSW application No. 4-031-002AC. On September 23, 1985, the District determined to recommend issuance of MSSW Application No. 4-031-002AC, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced MSSW application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility from 36 to 27 holes Fairfield's total requirements for water for irrigation were reduced. By pleading dated April 7, 1986, Fairfield moved to amend its conceptual MSSW approval application. On April 10, 1986, the motion was granted pursuant to Stipulation of all the parties. The motion was granted by written Order of the Hearing Officer on April 17, 1986. The Petitioners' original Petition for Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the natural resources on Fort George Island. Protection of this resource falls within-the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation, and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioners and Intervenors is denial of the conceptual management and storage of surface waters permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. Petitioners, Friends of Fort George, Inc. and Intervenors, Florida Audubon Society and Duval Audubon Society have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. During the hearing, the parties stipulated that Logan Diving, Inc., has standing in this proceeding since it is the holder of oyster and clam harvesting leases from the Department of Natural Resources for beds located in Class II waters adjacent to Fort George Island and it derives substantial income from harvesting of these beds. Closure or reclassification of these waters to limit or preclude shellfish harvesting would impair the value of Logan Diving's shellfish leases, or render them worthless. The following findings of fact relating to Fairfield's MSSW application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Southeastern Fisheries Association, Inc., established at the hearing that it is a not-for-profit incorporated association of seafood producers, packers, canners, processors, wholesalers, retailers and others substantially involved in the seafood and fishing industries. Based upon the testimony of Robert P. Jones, 200 to 250 of the Association's 350 members shrimp in waters in the vicinity of Fort George Island, 26 of its members are residents of Duval or Massau Counties and 6 are residents of Fort George Island. Thus, a significant number of the Association's members harvest and transport seafood from the waters in the area of Fort George Island, and others also pack and process seafood from these waters. They would be substantially affected if the quality of these waters was degraded, or if the waters were closed to shellfish harvesting as a result of destruction to the nursery areas or reduction in quality or quantity of fish or shellfish which are harvested in these waters, or which utilize these waters as nursery areas. The objectives and purposes of the Association include promoting the general welfare of the fisheries industry and enhancing its economic progress. In contrast, the Florida Wildlife Federation was allowed to participate in this hearing but failed to offer any evidence in support of its verified Petition at the hearing. Fairfield's MSSW application is for conceptual approval, pursuant to District rule, and if conceptual approval is obtained Fairfield will then have to re-apply for construction, operation and maintenance MSSW permits. Although this is an application for conceptual approval, the documentation and information submitted by Fairfield to the District in support of its application is more thorough and complete than almost any other application for conceptual approval received by the District, and is actually superior to the documentation and information received from most applicants for construction permits. According to District staff, more sampling and testing results are presented in this conceptual application than they ever get. After initial review of its MSSW application by District staff following submission on January 5, 1984, Fairfield received a request for additional information. In responding to this request, Fairfield developed a plan of study which was approved by District staff and which focused on the water supply potential of the surficial aquifer, and the ability of a stormwater management and control system to retain stormwater on-site in compliance with the ADO and the District's permitting rules. Fairfield's study was comprehensive, and was completed in a very competent, professional manner. It included the collection of data through soil borings, installation of monitoring wells, conducting permeability and percolation tests, collecting rainfall data' and sampling of water quality. A water budget model was developed, and approved by the District, to compare existing conditions to proposed developed conditions and to specifically determine the water supply potential of the surficial aquifer, assess the availability of water for irrigation after development, assess changes in recharge to the surficial aquifer after development, and generally to determine how the development would impact the existing hyrologic cycle on the Island. Considering all of the evidence presented, it is specifically found that Fairfield utilized correct and appropriate input parameters in its water budget model to determine that currently 17.5 inches per year of freshwater is flowing from the Island to the surrounding estuary under average annual rainfall conditions, and after development approximately 16 inches per year of freshwater will flow from the Island to the estuary--less than a 10% change in ground- water flowing to the estuary. Therefore, the subject development will not adversely impact the overall water balance on Fort George Island. Utilizing the water budget model, under developed conditions it is shown that in a one-in-ten dry year there will be slightly more fresh water flow from the Island, and in a one-in-ten wet year there will be slightly less freshwater flow to the estuary than currently exists. This further demonstrates that overall water balance will be maintained. Total recharge will be greater post-development in average, wet and dry years. Fairfield's stormwater management system consists of a series of golf course fairway retention areas, and also includes four ponds in the north of the island which are interconnected, and one in the south, into which storm water will flow. The retention ponds comprise an area of approximately 32 acres. The fairway retention areas maximize percolation or infiltration, and water that remains to enter these ponds will be used for golf course irrigation through pumping. Generally, 95% of golf course need will be met by such pumping from the ponds, with the remaining need being met by withdrawals from the Floridan Aquifer. Under dry conditions, the need to withdraw from the Floridan Aquifer will be greater and could approach 49% of golf course irrigation requirements. The fairway retention areas and the five storage ponds comprise an on-line treatment system which will retain the first one-half inch of runoff, as well as additional runoff. Fairfield's on-line system is equivalent to an off-line system required by Rule Chapter 40C-42, Florida Administrative Code, for discharges to Outstanding Florida Waters (OFW) such as those that surround Fort George Island. Thus, the "first flush" containing a higher level of pollutants will be received by the retention areas and ponds in this on-line system and will primarily be removed through percolation in the retention areas. Pollutants should not be discharged into the estuaries, even in emergencies or when conditions exceed design capacity. Pond retention time will be approximately two months and surficial runoff will account for 5%-10% of the water in the ponds, with the rest coming from ground-water in-flow. Fairfield's storm water management system is operational and maintainable. It will be able to retain the 100 year, 24 hour storm event and otherwise meet the District's requirement that post-development discharge not exceed pre- development peak discharge. Surface discharges from the system will occur infrequently, perhaps every 80 years. Currently there is about one-half inch of direct surface runoff annually. Since surface runoff is a primary source of pollutant transport, the elimination of this runoff will have a beneficial effect on the estuary. The system will not degrade the quality of surrounding estuaries or the OFW since discharges to the estuaries will not occur from the ponds except under extreme conditions, and also because of the high level of treatment which will be provided by the ponds. Reasonable assurance has been given that water in the ponds will meet Class III standards, as well as the "free from" standards in Chapter 17-3, Florida Administrative Code, in the immediate future. The proposed ponds will be an improvement over existing borrow pits and bogs on the Island which have drastic side slopes and very long residence times, such as the Osmunda Bog, and will be a better habitat for fish and drinking water source for wildlife than the existing pits. It will also result in an improvement to Blue Pond, with better vegetation and habitat than currently exists, and with wildlife access being insured through preservation areas. A recognized and accepted ground-water flow model was used by Fairfield, and was approved by the District for use in this situation. The surficial aquifer system was correctly modeled as a single layer unit. Clay which underlies the Island is not a significant feature since, at minus 18 feet mean sea level, it is well into the saturated zone of the surficial aquifer and well below the surface water table, and since water levels actually observed in test wells could not be predicted when the top of the clay layer was used in the model as the bottom of the surficial aquifer. When the depth of the surficial aquifer was set at the top of the Hawthorne layer, the model accurately predicted water levels, as correlated against actual measured levels. Surface waters around Fort George Island have been classified as OFW since 1979. No significant development has taken place on the Island since 1979, and therefore ambient water conditions in 1978 and 1979 could reasonably be expected to have been what they are today. The stormwater management system will create a ground- water divide around the retention ponds. Any water falling inside the divide will flow toward the ponds; water falling outside the divide will percolate to the water table and then flow to the estuary. While under existing conditions nutrient pollutants that reach the water table simply flow to the estuary, after development half of the water falling on the golf course will be inside the divide and will therefore flow to the ponds. Therefore, after development there will be less nutrients and other pollutants reaching the estuary than under current conditions. Fairfield's stormwater management system is designed in a manner to ensure that the first 1 1/2 inches of rainfall will be retained or detained from an OFW. In fact, it appears that the system will actually retain runoff from the first 11 inches of rainfall. After analyzing data for metals, nutrients and coliform bacteria, it is found that the ambient water quality of the estuary will not be degraded by Fairfield's proposed development, and in fact there will actually be a net improvement in the quality of water reaching it from the Island. As a result of pollutant removal through filtration, sedimentation, absorption, precipitation, biological activity and dilution, it can reasonably be expected that ground-water seepage from the fairways and ponds to the OFW will meet primary and secondary drinking water standards, as well as Class II standards, and will not degrade the ambient water quality of the estuary. Infrequent surface discharges to the estuary also will not violate Class III standards. Total loading of nutrients to the OFW under developed conditions will be less than under existing conditions, and coliforms reaching the OFW via ground- water will be eliminated. Freshwater surface flow from the developed areas of the Island to the sloughs on the western side of the Island will be virtually eliminated. This elimination will not be detrimental to either salinities or particulate flows to these sloughs. Since there is an average of 50 inches of rainfall on the estuary per year, as opposed to less than 1/2 inch of freshwater runoff, and since the tidal flow is the forcing function in the estuary and not fresh surface water runoff, the salinity levels in the estuary will be largely unchanged. Particulate material will continue to be readily available to the sloughs from the marshlands, and from perimeter buffers which will be preserved by Fairfield around the Island. An undeveloped, preserved buffer zone is retained between the project and the surrounding waters as well as Rollins Sanctuary. This buffer zone is not intruded upon by the retention ponds contouring or berms associated with the development. In addition to the buffer zone, an undisturbed area will also be retained in the development, and the total acreage of the buffer and undisturbed areas will be 226 acres. The buffer and undisturbed areas will be more than adequate to protect the rare, notable, endangered or threatened plant and wildlife species identified on the Island when these areas are considered in relation to Rollins Sanctuary and other properties on the Island in state ownership. There will also be no construction activity in the saltmarsh off the western side of the Island. Extensive surveys conducted by Fairfield identified 26 species of plants and 16 species of wildlife on the Island. The habitat for all but one wildlife species, the gopher tortoise, is the saltmarsh to the west of the Island which will be undisturbed. Two national champion trees were identified and will be preserved. There will be no adverse impacts on notable plants in Rollins Sanctuary or other preservation areas since a 30 meter buffer is provided on the northern boundary of the Sanctuary and no development at all will take place to the west! of the Sanctuary. Woodstorks, the only endangered species identified in the survey, have been observed resting in trees at the western side of the Island in the saltmarsh. They are not nesting on Fort George Island, but return to the D-Dot Ranch south of Jacksonville every night to nest. The western area of the Island will remain undisturbed habitat in a buffer area from 250 to 450 feet wide, as will the southwestern portion of the Island. Woodstorks appear to be using the tidal sloughs for feeding, and development should have no adverse impact on these sloughs. A heron and egret rookery exists on the northern side of the Island, primarily off of Fairfield's property. Approximately 20 nesting pairs of great blue herons and great egrets use this rookery, which appears to be a satellite of regional rookeries. These are not notable species, but Fairfield will provide up to a 600 foot buffer. The gopher tortoise is the only notable terrestrial species on the Island and is a "species of special concern." The undisturbed natural habitat of a major concentration of gopher tortoise on Fairfield's property will be preserved. While the habitat for non-notable species such as bobcat, grey fox, owls and songbirds will be reduced, they will not be extirpated. Significant archaeological sites on Fairfield's property will be preserved and protected, including Mission San Juan del Puerto, the Grave Robbers Mound, the Sugar Mill site, and the Crypt site. If additional sites are found during development, a mitigation plan will be developed for approval by the State Division of Archives, with an evaluation by a professional archaeologist. Indian middens, or trash piles, have been deemed insignificant and will not be preserved. Surface water table draw-downs which will result from Fairfield's system due to pumping from the surficial aquifer will have no adverse impact on either wildlife or plant life on the Island. Such draw-downs will be limited and localized primarily around the ponds. In fact, the water table on the western side of the Island may increase slightly. The draw-down within Rollins Sanctuary or at Rollins Creek will be less than one foot and therefore should not have any adverse impact. Rollins Creek is approximately five feet wide. A fifty foot buffer around the Creek is provided. Only EPA approved chemicals will be used for weed control associated with the ponds, and aeration will be used to assist the production of oxygen in the ponds. Nutrients, nitrates and phosphorous, will be continually analyzed so that immediate corrective action in fertilizer application can be taken if necessary. Fairfield will utilize an integrated pest management program under a plan which must be approved by the District and which will actually reduce the need for chemical pesticides. Only EPA approved pesticides will be used. As for fertilizers, Fairfield will apply fertilizers more frequently, but in lesser amounts, than on the existing golf course. This ensures a better uptake of nitrates and phosphates, thereby reducing unabsorbed nutrients that might flow to the ponds or estuary. A full-time resource manager will be employed to ensure proper operation of the entire stormwater management system. Once the system is in place, Fairfield will conduct a long-term monitoring program of the water quality in the MWBZ, surficial aquifer, the ponds, and any surface water discharges to ensure permit compliance and also to provide a data base for further activities. Such a data base will represent a positive public benefit. Additional beneficial results of the project, after construction permits are obtained, include stabilization of the northern shoreline of the Island which has had notable marshland erosion, and re-aligning a road on the western side of in the Island to eliminate a point where it crosses Big Slough and thereby open the Slough up to additional sheetflow. Middle and Northern Sloughs will be preserved. Mitigation will be required for any disturbance of a small wetland area on the west side of the Island which is approximately 3/4 of an acre in size. Eliminating marsh erosion, and removing vehicle traffic and flow restrictions in the area of Big Slough are clearly in the public interest, as is the preservation of other wetland areas. The District staff originally recommended that Fairfield's MSSW application be denied but after modifications to the application were made, the District staff has recommended approval with conditions to ensure generally that Fairfield: Monitors water quality in the five ponds in accordance with a plan approved by the District, as well as the quantity and quality of all surface water discharges. Monitors water levels in surficial aquifer wells and reports such data to the District Recalibrates its surficial aquifer and water budget models every five years using the actual monitoring data it has collected and reported to the District in the preceding years, and if such recalibration indicates more than a 50% increase in the volume or frequency of surface water discharges, the stormwater management system must be altered, with District approval, to prevent such increases Submits a pesticide management plan for District approval. Submits a mitigation plan for District approval, at the time of application for construction permits, that will mitigate for any loss to off-site aquatic and wetland dependent species associated with project development in the area of the tidal sloughs on the west coast of the Island. A total of fourteen specific conditions which the District staff recommends be placed on the conceptual approval of the MSSW permit are contained in the Management and Storage of Surface Waters Summary Sheet, dated May 1986, which is hereby incorporated by reference and found to be reasonable in its entirety. Case Number 85-3596 (CUP) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's CUP application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility for the administration and enforcement of permitting programs pursuant to Sections 373.219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's CUP application the permit number 2-031-0021AN. Findings of Fact 10, 11, 14 and 15 which are set forth above are hereby readopted and incorporated herein. On December 1, 1983, Fairfield, through its then-agent George Register, III, submitted to the District the subject CUP application. The application was assigned No. 2-031-0021AN. On August 23, 1985, the District gave notice of its intent to deny CUP application No. 2-031-0021AN. On September 23, 1985, the District determined to recommend issuance of CUP application No. 2-031-0021AN, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced CUP application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility form 36 to 27 holes, Fairfield's total requirements for irrigation water were reduced. By pleading dated February 28, 1986, Fairfield moved to amend its application. The motion was granted by the Hearing Officer on March 11, 1986. In light of this amended application, the District issued a revised "Consumptive Uses of Water Summary Sheet," dated March-24, 1986, to reflect this amended request and to recommend issuance of the CUP. The Petitioners' original Petition For Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and possess drinking water wells on the Island and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the water resources on Fort George Island, including its drinking water supply. Protection of this resource falls within the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioner and Intervenor is denial of the proposed consumptive use permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. The residential value of Petitioners' property on Fort George Island would decrease if the property had absolutely no access to potable water. Petitioners and Intervenors have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. The following findings of fact relating to Fairfield's CUP application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Following review of Fairfield's CUP application, District staff requested additional information on January 11, 1984; Fairfield developed a plan of study to supply the requested additional information, and the plan of study was approved by District staff. The plan of study sought to find out the nature and characteristics of an anomaly in the northeastern part of the Island, and also to determine if Fairfield's proposed usage would have any affect on existing legal users. As part of the study, Fairfield conducted a well inventory and survey, water quality survey, water level measurements, and vertical investigations. The study also examined three alternatives to obtaining water from the various water bearing zones under Fort George Island, including drilling a test well (TP-2) into the Middle Water Bearing Zone after obtaining appropriate permits. The Floridan Aquifer below Fort George Island consists of three zones--The Upper Water Bearing Zone (UWBZ), Middle Water Bearing Zone (MWBZ) and Lower Water Bearing Zone (LWBZ). The bottom of the Hawthorne formation separating the surficial and Floridan aquifers occurs at about 400 feet below mean sea level. The UWBZ exists from of depth of approximately 520 feet to 1000 feet. Below the UWBZ is an upper semiconfining zone from a depth of approximately 1000 to 1200 feet. The MWBZ is generally 100 feet thick and exists from a depth of approximately 1200 to 1700 feet, below which is a lower semiconfining zone from a depth of approximately 1700 to 2000 feet. The MWBZ is a single water producing zone with interconnected channels or flow zones. The LWBZ exists from a depth of approximately 2000 to 2100 feet, below which is a lower confining unit. The confining zones are saturated with water but are less permeable than any of the water bearing zones. Regional ground-water flow in the Floridan Aquifer at Fort George Island is from the west to the east, northeast and southeast. Water quality to a depth of approximately 1900 feet is generally good, with chloride concentrations of less than 50 milligrams per liter (mgl). In the UWBZ chloride concentrations are generally 10-15 mgl. However, in the north eastern part of the Island chloride concentrations are approximately ten times higher, although still considered potable, due to an anomaly which exists in this area with a radius of approximately 1000 feet, and which allows the flow of water directly from the LWBZ to theMWBZ and LWBZ. While the potentiometric surface or pressure for most of the Island is 39 feet, at the anomaly it is 43 feet above mean sea level. The anomaly was caused either by a sinkhole or fault and acts as a localized conduit or coins source of lower quality water from the LWBZ to the UWBZ. No other point sources of lower quality water exist on the island. The Hawthorne formation was found to exist approximately fifty feet deeper in the area of the anomaly than on the rest of the Island. Existing users on Fort George Island draw water from the UWBZ. Fairfield proposes to draw its water from the MWBZ at a rate of 101.11 million gallons per year in an average year, and 181.04 million gallons per year in a 1 in 10 dry year, and will be the only user of water from the MWBZ on the Island. Household use consumption is projected to be 129.3 gallons per capita which is below the District average of 150 gallons per capita. Based upon pump tests already conducted by Fairfield, the MWBZ will produce more than enough water to meet Fairfield's needs for its project and such pumping will have no adverse impact on the UWBZ or existing users. Pumping from the MWBZ will also have no adverse impact on the MWBZ. Specifically, salt water intrusion from the surrounding estuary or from the tWBZ to the MWBZ will not significantly increase, chloride levels will not increase and potentiometric levels will not decrease in the MWBZ due to this pumping. The MWBZ will produce an adequate Supply of potable water for 15 to 30 years. Fairfield does propose to use well P-1 in the UWBZ in emergency situations but such usage will have no adverse impact on the quality of the UWBZ or its existing users. Use of the MWBZ will be minimized by maximum utilization of the surface water management system ponds for irrigation needs. Well TP-2 is approximately a mile from the anomaly in a south-southwesterly direction. It was constructed by Fairfield, after obtaining necessary permits, with casing to a depth of 771 feet all the way through the UWBZ and into the underlying confining bed. Pump tests were conducted on the MWBZ using TP-2, which is the only well on the Island in the MWBZ. No separate monitoring well in the MWBZ was required by the District, and none was utilized by Fairfield because the flow off 2,000 gallons per minute from TP-2 was so strong that a separate monitoring well was not necessary. When TP-2 was pumped, there was no measurable change in nearby UWBZ wells. This confirms that the MWBZ is hydrologically separate from the UWBZ, other than at the anomaly, and pumping from one will not affect wells in the other. In response to a request from the District, Fairfield utilized conservative factors in applying a mathematical model to determine the effects of its proposed pumping on the Floridan Aquifer. Using the USGS contaminant transport model, which is professionally accepted and appropriate for use in this case, and after proper calibration to reproduced observed conditions, it was determined that chloride concentrations in the MWBZ will not be adversely affected, nor will potentiometric surfaces of the UWBZ or MWBZ when pumping is conducted from TP-2 in the MWBZ over a thirty year period. At most, pumping from TP-2 could result in a slight increase of flow from the anomaly into the MWBZ, with a minimal increase in chloride concentrations. Fairfield has agreed to install a monitoring well in the MWBZ and to monitor several wells in the UWBZ in order to constantly test and monitor chloride levels. Currently chloride levels in the MWBZ are 25 mgl and the limit for potable water is 250 mgl. The monitoring well will be approximately 550 feet northeast of well TP-2, and will detect any changes in chloride levels with sufficient lead time for Fairfield to initiate action to drill another well into the MWBZ further from the chloride source. It is estimated that such lead time could reasonably be as much as ten years. Even without Fairfield's pumping from the MWBZ, water quality in the UWBZ would be expected to degrade, as it has historically, as a result of regional pumping which has caused a regional decline in water quality and 37 SO as a result of flow from the anomaly. Existing users may actually benefit from Fairfield's pumping from the MWBZ and the decline in the quality of the UWBZ may be slowed due to Fairfield's elimination of golf course irrigation which currently comes from the UMBZ at a rate of approximately 175,000 gallons per day, accounting for approximately 90% of all current water usage on the Island. Pumping from the Floridan Aquifer will be conducted to supplement irrigation from the stormwater management system. Fairfield will use up to 580,000 gallons per day for golf course irrigation in dry years. However, even in a dry year the primary source for golf course irrigation will still be from the stormwater management system. In an average year, approximately 95% of irrigation needs will be met by the surface water management system ponds. In a wet year there should be no need to pump from the Aquifer. The District staff originally recommended denial of Fairfield's CUP application when it was for a 36 hole golf course, anad for withdrawal of potable water from the UWBZ with only golf course irrigation being from the MWBZ. Fairfield has modified its application and now proposes a 27 golf course with all water needs coming from the MWBZ, except in an emergency when well P-1 in the UWBZ may be used. The District staff has now recommended approval, with a total of twenty conditions contained in the "Consumptive Uses of Water Summary Sheet," which are hereby incorporated by reference and which ensure generally that Fairfield: Mitigates any adverse impact caused by withdrawals permitted herein on existing legal uses of water; the District may curtail any withdrawal if there are adverse impacts on existing legal users. Mitigates any adverse impacts caused by withdrawals permitted herein on existing adjacent land uses; the District may curtail any withdrawal if there are adverse impacts on existing adjacent land uses. Must reapply for another CUP after seven years from issuance. Begins irrigating the existing 18 hole golf course from the MWBZ by March 1, 1987, with existing UWBZ irrigation wells only to be used thereafter for fire protection. Institutes a sampling program for existing wells in the UWBZ and MWBZ. Supplies all potable and supplemental irrigation requirements from the MWBZ, and keeps monthly records of such withdrawals. Drills and maintains a monitoring well in the MWBZ approximately 550 feet northeast of its MWBZ potable and supplemental irrigation well, and provides long term water quality samples to the District from the monitoring well. The District staff's recommended conditions are found to be reasonable in their entirety.
Recommendation Based on the foregoing, it is recommended that the St. John's River Water Management District issue to Fairfield Communities, Inc., conceptual approval of MSSW permit number 4- 031-002AC with conditions set forth in the District's Management and Storage of Surface Waters Summary Sheet, dated May 1986, and also issue to Fairfield Communities, Inc., CUP number 2-031- 3021AN with conditions set forth in the District's Consumptive Uses of Water Summary Sheet. Further, it is recommended that the Florida Wildlife Federation be dismissed as a party in this proceeding. DONE and ENTERED this 6th day of October, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1986. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management Post Office Box 1429 Palatka, FL 32078-1429 Segundo J. Fernandez, Esquire Post Office Box 6507 Tallahassee, FL 32314 Thomas G. Pelham, Esquire Post Office Drawer 11300 Tallahassee, FL 32302-3300 Kathryn L. Mennella, Esquire Post Office Box 1429 Palatka, FL 32087-1429 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Jeffrey R. Lugwig, Esquire One Independent Square Jacksonville, FL 32276 Stephen O'Hara, Jr., Esquire 1500 American Heritage Life Building Jacksonville, FL 32202 APPENDIX Rulings on Petitioners' and Intervenors' Proposed Findings of Fact: 1. Adopted in Findings of Fact 9-27, 58-73. 2-7. Rejected as irrelevant and unnecessary 8. Adopted in Findings of Fact 36, 42. 9-10. Rejected as irrelevant and unnecessary 11. Adopted in part in Findings of Fact 4, 77, but otherwise rejected as irrelevant and unnecessary 12-24. Adopted in Finding of Fact 15, but otherwise rejected as unnecessary or not based on competent substantial evidence. 25-27. Rejected as irrelevant and unnecessary 28-39. Adopted and rejected in Finding of Fact 76, but otherwise rejected as irrelevant and unnecessary 40-45. Rejected in Findings of Fact 25, 77, 78 and otherwise not based on competent substantial evidence. Rejected in Finding of Fact 76. Rejected as irrelevant. 48-50. Rejected in Findings of Fact 77, 78 and otherwise not based on competent substantial evidence. 51-52. Rejected as unnecessary. 53. Rejected as not based on competent substantial evidence. 54-55. Rejected in Findings of Fact 77, 78. 56. Adopted in Finding of Fact 56. 57-63. Rejected in Finding of Fact 79 and otherwise not based on competent substantial evidence. 64-66. Rejected as irrelevant and unnecessary. 67-75. Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 76-79. Rejected in Finding of Fact 79, and otherwise not based on competent substantial evidence. 80-83 Rejected in Finding of Fact 75, and otherwise irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 78 Rejected as irrelevant and unnecessary. 86-87. Rejected in Finding of Fact 75. 88-107. Adopted and rejected in part in Findings of Fact 75, 78, and otherwise irrelevant and not based on competent substantial evidence. 108. Rejected in Finding of Fact 79. 109-111. Rejected in Findings of Fact 76, 80. Adopted in Finding of Fact 80. Rejected as irrelevant and unnecessary. 114-116. Adopted in Finding of Fact 80. 117-120. Rejected as irrelevant and not based on competent substantial evidence. 121-136. Rejected in Finding of Fact 37 and otherwise unnecessary and not based on competent substantial evidence. Rejected as not based on competent substantial evidence. Rejected as unnecessary and cumulative. 139-141. Rejected as not based on competent substantial evidence. 142-144. Rejected as unnecessary and cumulative. 145-147. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 36, 37. Rejected as unnecessary and cumulative. Rejected as not based on competent substantial evidence 151-161. Rejected as unnecessary, cumulative and not based on competent substantial evidence. 162-164. Rejected in Finding of Fact 37 and otherwise not based on competent substantial evidence. 165-169. Rejected as unnecessary and cumulative. 170. Rejected in Findings of Fact 34, 39, 41. 171-173. Rejected as unnecessary and cumulative. 174-177. Rejected in Findings of Fact 36, 37. 178-179. Rejected in Findings of Fact 50, 51. 180. Adopted in Finding of Fact 39. 181-186. Rejected as not based on competent substantial evidence and otherwise unnecessary. 187-189. Rejected in Finding of Fact 32, and otherwise not based on competent substantial evidence. 190-193. Rejected as unnecessary and cumulative. 194-195. Rejected as not based on competent substantial evidence. 196. Rejected as unnecessary. 197-200. Rejected as not based on competent substantial evidence. 201-205. Rejected in Findings of Fact 32, 33 and otherwise not based on competent substantial evidence. 206-210. Rejected in Findings of Fact 32, 33, 36, 37. 211-268. Rejected in Findings of Fact 35, 36, 39-41, 52-54 and otherwise unnecessary and contrary to competent substantial evidence. 269-278. Adopted in part in Finding of Fact 3, but otherwise rejected as unnecessary. 279-297. Rejected in Findings of Fact 32, 33, 35, 36, 41, 42 and otherwise as unnecessary. 298. Rejected as irrelevant and unnecessary. 299-300. Adopted in part in Finding of Fact 3. Rejected as unnecessary. Rejected in Finding of Fact 44. Adopted and rejected in part in Findings of Fact 45-47. 304-305. Adopted in Finding of Fact 4. 306-312. Rejected in Findings of Fact 44-48 and otherwise not based on competent substantial evidence. Rejected in Findings of Fact 43, 45. Rejected in Finding of Fact 48. 315-321. Rejected as unnecessary and not based on competent substantial evidence. 322-323. Adopted and rejected in part in Finding of Fact 50. 324. Rejected as unnecessary. 325-329. Adopted and rejected in part in Finding of Fact 28. 330. Rejected as unnecessary. Rulings on Respondent Fairfield Communities' Proposed Findings of Fact: Adopted in Findings of Fact 9, 58. Adopted in Findings of Fact 10, 59. Adopted in Findings of Fact 11, 59. Adopted in Findings of Fact 15, 59. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 27. Adopted in Findings of Fact 14, 59. Rejected as unnecessary based on Finding of Fact 28 Adopted in Findings of Fact 30, 60. Adopted in Findings of Fact 16, 17, 61, 62. Adopted in Findings of Fact 4, 6, 18, 19 Adopted in Findings of Fact 20, 65. Adopted in Finding of Fact 26. Adopted 1n Findings of Fact 21, 67. Adopted and rejected in Finding of Fact 28 Adopted in Finding of Fact 28. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. 20-22. Adopted in Finding of Fact S. 23-24. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 77, 81. 28-30. Adopted in Finding of Fact 74. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 76 Adopted in Finding of Fact 76. Adopted 1n Findings of Fact 75, 76. Rejected as unnecessary. 36-37. Adopted in Finding of Fact 75. 38. Adopted in Finding of Fact 77, but otherwise rejected 39-40. Adopted in Finding of Fact 76 evidence. 41-43. Adopted in Findings of Fact 76-80, but otherwise rejected as cumulative and unnecessary. 44-47. Adopted in Finding of Fact 74 48-50. Adopted in Finding of Fact 78 51-55 Adopted in Finding of Fact 79. Rejected as unnecessary. Adopted in Findings of Fact 77, 80. Adopted in Findings of Fact 77, 83. Adopted in Finding of Fact 80. Adopted in Findings of Fact 78, 79. Adopted in Finding of Fact 79. 62-63. Adopted in Finding of Fact 81. 64-65. Adopted in Finding of Fact 77 Adopted in Findings of Fact 4; 77. Adopted in Finding of Fact 82. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. 69-70. Rejected as unnecessary and cumulative 71-72. Adopted in Finding of Fact 30. 73-75. Adopted in Finding of Fact 31 76-84. Adopted in Findings of Fact 31, 32, but otherwise rejected as unnecessary 85-88. Adopted in Finding of Fact 33. 89-92. Adopted in Findings of Fact 36, 37, but otherwise rejected as unnecessary. Adopted in Finding of Fact 34. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. Rejected as unnecessary Adopted in Finding of Fact 43 Adopted in Finding of Fact 36 Adopted in Findings of Fact 4i, 42 Adopted in Findings of Fact 2, 38 Adopted in Findings of Fact 41, 42. 101-102. Adopted in Finding of Fact 39 Adopted in Finding of Fact 40. Adopted in Finding of Fact 35. 105-105. Adopted in Finding of Fact 41. 110-115. Adopted in Finding of Fact 42 116-117. Adopted in Findings of Fact 36, 42, but otherwise rejected as unnecessary. 118-121. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary 122. Rejected as unnecessary, cumulative and inaccurate. 123-125. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 29, 31. Adopted in Finding of Fact 43. 128-131. Adopted in Finding of Fact 56. 132-133. Adopted in Finding of Fact 36. 134-135. Adopted in Finding of Fact 56, but otherwise rejected as unnecessary. 136. Adopted in Finding of Fact 51. 137-138. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 52. Adopted in Findings of Fact 52, 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 55. 144-148. Adopted in Finding of Fact 44, but otherwise rejected as unnecessary. 149. Adopted in Findings of Fact 4, 43, 44, but otherwise rejected as unnecessary. 150-151. Adopted in Finding of Fact 45. Rejected as unnecessary. Adopted in Finding of Fact 45. 154-155. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. 158-160. Adopted in Finding of Fact 49. Rulings on Respondent St. John's River Water Management District's Proposed Findings of Fact: (The District's proposal was not timely filed, and the District did not seek permission from the Hearing Officer for late filing. It also consists of serial, unnumbered paragraphs from pages 18 to 48 despite specific instruction of the Hearing Officer to the parties to number paragraphs in proposed findings in order to allow specific rulings to be made. Despite these failures, a ruling will be made on the District's proposals, after having consecutively numbered each unnumbered paragraph, since counsel for the District indicates counsel for Petitioners has no objection to this late-filing, and in fact no Motion to Strike has been filed on behalf of Petitioners.) Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 75. Adopted in Finding of Fact 76. Adopted in Findings of Fact 77, 81. Adopted in Finding of Fact 60. Adopted in Finding of Fact 30.47 Adopted in Findings of Fact 16, 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 6. Adopted in Findings of Fact 66, 83. Adopted in Finding of Fact 83. Adopted in Finding of Fact 20. 15-16. Adopted in Finding of Fact 57. 17. Adopted in Findings of Fact 21, G7. 18-21. Adopted in Finding of Fact 74. Adopted in Findings of Fact 74-76. Adopted in Finding of Fact 74. 24-26. Rejected as irrelevant and unnecessary. 27. Adopted in Finding of Fact 77. 28-35. Adopted in Finding of Fact 76. 36-41. Adopted in Finding of Fact 78. 42. Adopted in Finding of Fact 80. 43-45. Adopted in Finding of Fact 79. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 79. Adopted in Finding of Fact 79. 49-50. Adopted in Finding of Fact 81. 51-52. Adopted in Finding of Fact 79. Adopted in Finding of Fact 80. Adopted in Finding of Fact 79. Adopted in Finding of Fact 77. Adopted in Finding of Fact 81. 57-58. Adopted in Finding of Fact 77. Adopted in Findings of Fact 34, 82. Rejected as unnecessary. Adopted in Finding of Fact 77. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 78. 64-65. Adopted in Finding of Fact 30. 66. Adopted in Findings of Fact 34, 39. 67-72. Adopted in Finding of Fact 31. 73-81. Adopted in Finding of Fact 32. 82. Adopted in Findings of Fact 36, 42. 83-84. Adopted in Findings of Fact 32, 33. 85-87. Adopted in Finding of Fact 33. 88-94. Rejected as unnecessary. 95. Adopted in Finding of Fact 37. 96-98. Adopted in Finding of Fact 36, but otherwise rejected as unnecessary. Adopted in Finding of Fact 54. Adopted in Findings of Fact 34-36. 101-102. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 2, 38. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 36, 39. Adopted in Finding of Fact 39. Adopted in Findings of Fact 41. Adopted in Finding of Fact 35. Rejected as unnecessary. 110-118. Adopted in Finding of Fact 41, but otherwise rejected as unnecessary. Adopted in Finding of Fact 53. Adopted in Findings of Fact 52, 53, but otherwise rejected as unnecessary. Adopted in Finding of Fact 55. Adopted in Finding of Fact 42. 124-128. Adopted in Findings of Fact 32, 36, 42, but otherwise rejected as unnecessary. Adopted in Findings of Fact 35, 42, but otherwise rejected as unnecessary. Rejected as unnecessary. 131-134. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary. 135. Adopted in Findings of Fact 42, 43. 136-138. Adopted in Finding of Fact 56. 139. Adopted in Findings of Fact 36, 56. 140-141. Adopted in Finding of Fact 56. 142. Adopted in Finding of Fact 51. 143-144. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Rejected as cumulative, unnecessary and incorrect. Adopted and rejected in part in Finding of Fact 28. Adopted in Finding of Fact 28. ================================================================ AGENCY FINAL ORDER ================================================================ IN THE ST. JOHNS RIVER WATER MANAGEMENT DISTRICT FRIENDS OF FORT GEORGE, INC., Petitioners, and LOGAN DIVING, INC., SOUTHEASTERN FISHERIES ASSOCIATIONS, INC., THE FLORIDA AUDUBON SOCIETY, THE DOAH Case No. 85-3537 DUVAL AUDUBON SOCIETY, and THE (Management and Storage FLORIDA WILDLIFE FEDERATION, of Surface Waters) SJRWMD Case No. 85-3948 Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER, MANAGEMENT DISTRICT, Respondents. / FRIENDS OF FORT GEORGE, INC., et al., Petitioners, and THE FLORIDA AUDUBON SOCIETY DOAH Case No. 85-3596 and THE DUVAL AUDUBON SOCIETY, (Consumptive Use Permit) SJRWMD Case No. 85-394A Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. /
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
