The Issue The issue in this case is whether Niagara Bottling Company, LLC (Niagara), is entitled to Consumptive Use Permit (CUP) No. 114010 issued by the St. Johns River Water Management District (District), which authorizes Niagara to withdraw and use 484,000 gallons per day (gpd) of groundwater to produce bottled water at a facility in Lake County.
Findings Of Fact The Parties Groveland is a municipal corporation located in Lake County. Niagara is a water bottling company registered to do business in Florida. Niagara currently owns and operates six water bottling facilities in the United States, including a bottling facility in unincorporated Lake County, northwest of Groveland. Niagara currently operates one bottling line at its Groveland facility, which can be used to bottle either spring water or purified water. The District is a special taxing district created by the Florida Water Resources Act of 1972, with jurisdiction over a sixteen-county area that includes Groveland and the site of Niagara’s proposed water withdrawal. The District administers a permitting program for the consumptive use of water. The Proposed Permit The top geologic layer in the region is the surficial aquifer, which starts at the ground surface and extends down about 50 feet to the Intermediate Confining Unit. Below the Intermediate Confining Unit is the Upper Floridan Aquifer, which starts at a depth of about 150 feet and extends downward to about 550 feet below the ground surface. Below the Upper Floridan Aquifer is the Middle Semi-Confining Unit, which extends down another 450 feet. Below the Middle Semi-Confining Unit is the Lower Florida Aquifer, which extends down to about 2,200 feet below sea level. Nearly all of the groundwater withdrawn for consumptive uses in central Florida comes from the Upper Floridan Aquifer. Groveland’s public water supply wells, for example, withdraw water from the Upper Floridan Aquifer. The proposed CUP authorizes Niagara to withdraw 484,000 gpd from the Upper Floridan Aquifer to produce bottled water. The CUP authorizes the installation of three water supply wells for the facility: a 16-inch production well, a 16-inch backup well, and a 4-inch supply well for domestic uses at Niagara’s facility. Of the 484,000 gpd that Niagara would withdraw, approximately 454,000 gpd would be treated and bottled as “purified water” and approximately 30,000 gpd would be used for cooling some of the equipment used in the bottling process. Under federal regulations, bottled water sold as purified water must meet certain maximum contaminant levels, including a total dissolved solids (TDS) level of less than 10 parts per million. By regulation, purified water is distinct from tap water and from bottled spring water. Niagara would treat the groundwater by filtration and reverse osmosis (RO), primarily to remove TDS. At a customer’s request, minerals can be added to the water to enhance taste. Also before the water is bottled, it disinfected with ozone. The RO process at the Niagara facility is projected to turn 454,000 gpd of groundwater into about 363,000 gpd of purified drinking water for bottling and 91,000 gpd of RO concentrate/wastewater. Reject water from the cooling water system would add some additional wastewater. Niagara has arranged to send its RO concentrate to the Frozen Grove Wastewater Treatment Facility to be blended and used for irrigation at the Mission Inn Golf and Tennis Resort in Howey-in-the-Hills. The City of Minneola has also agreed to take Niagara’s RO concentrate. Niagara and the District requested that the proposed CUP be modified to add the City of Minneola wastewater treatment facility as an alternative recipient for Niagara’s RO concentrate. Niagara and the District propose the following change to Condition 10 of the Technical Staff Report: Withdrawals of groundwater from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010 for commercial/industrial type use shall not be initiated until Niagara Bottling LLC and the Frozen Grove WWTF or alternatively Niagara Bottling LLC and the City of Minneola WWTF have obtained all necessary permits to create and use the blend of process waste water (R/O concentrate) and reclaimed water for irrigation, as described in Attachment 4 of the application materials submitted to the District on May 9, 2008 for the Frozen Grove WWTF and the material submitted to the District on March 4, 2009 for the City of Minneola WWTF. The permittee shall provide documentation to the District that the necessary permits have been obtained within 30 days of initiating withdrawals of groundwater for commercial/industrial type use from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010). The proposed CUP includes a conservation plan with provisions for monitoring water use, repairing leaks, conducting quality assurance inspections, using totalizing flow meters, and minimizing spillage. Niagara’s proposed CUP contains conditions for environmental monitoring. Niagara would be required to collect water level and rainfall data, and basic vegetation and soils conditions at Lake Arthur. Lake Arthur was selected for monitoring because hydrologic modeling indicated that Niagara’s greatest potential impact to the water table was near Lake Arthur. The monitoring is intended to detect any unexpected adverse environmental impacts caused by Niagara’s proposed withdrawal so that they can be addressed. The proposed permit has an expiration date of December 31, 2013. Stipulations and Withdrawn Claims Before the final hearing, Groveland withdrew a number of allegations made in its Second Amended Petition for Hearing. Groveland stated that its intent was to withdraw the claims that its substantial interests were affected by Niagara’s proposed groundwater withdrawal. Groveland no longer contends that it would be specially injured by the proposed water use. In the parties’ Joint Pre-Hearing Stipulation, Groveland stipulated that Niagara’s proposed water use would not interfere with any legal uses of water. Groveland also stipulated that Niagara’s proposed use would not cause adverse or significant impacts to lake stages or vegetation, would not impact adjacent land uses, would not cause significant saline water intrusion, would not cause or contribute to flood damage, would not harm the quality of the water source, would not cause or contribute to a violation of state water quality standards, would not impact minimum flows and levels established by the District, would not cause the water table or aquifer potentiometric surface to be lowered so that lake stages or vegetation would be adversely and significantly affected, would not affect spring flows or water levels, and would not use water reserved by the District from consumptive use. The record evidence supports the stipulations identified above. Economic and Efficient Utilization The Upper Floridan Aquifer is capable of producing the requested amount of water. Florida Administrative Code Rule 40C-2.301(4)(a) and Section 10.3(a) of the Applicant’s Handbook require that a water use be in such quantity as is necessary for economic and efficient utilization. The District’s determination of economic necessity focuses on preventing “water banking,” which is securing rights to water in excess of an applicant’s actual needs, for possible future use. Niagara’s 484,000 gpd allocation is based on the peak maximum daily output of the processing equipment operating at 74 percent capacity, which is the average capacity that Niagara achieves at its bottling facilities. Groveland contends that the consumer demand for bottled water could be met by other water bottlers and, therefore, there is no need for Niagara’s proposed withdrawal. However, no statute or rule requires Niagara to demonstrate that this particular CUP is the only means to meet the consumer demand for bottled water. The District’s evaluation of need focuses on the applicant’s need for the requested volume of water. In determining whether a requested use of water is necessary, the District does not evaluate the appropriateness of the associated business or activity, but only whether the applicant can reasonably be expected to use the requested volume of water, and do so efficiently based on industry standards. The evidence presented regarding the bottled water market and Niagara’s position in the market was sufficient to demonstrate that the requested volume of water is necessary through the duration of the CUP. The 30,000 gpd that Niagara would use for its cooling system is a reasonable amount of the water for that purpose. The technology to be used at Niagara’s facility is state-of-the- art, using constant online monitoring to reduce reject water. The cooling equipment and its operation have been designed to minimize water use. RO is the industry treatment standard for production of purified bottled water. It is the most cost-efficient treatment method in terms of energy use and water consumption. The proposed RO equipment and its operational parameters are designed to optimize treatment efficiencies. The volume of RO concentrate that would be produced depends on the TDS levels in the groundwater. The estimate of 91,000 gpd of RO concentrate is conservatively high, based on the TDS levels in groundwater samples. The actual volume of RO concentrate produced by Niagara could be smaller. Groveland was critical of Niagara’s wastewater volume, contending that the conversion of 91,000 gpd of groundwater to wastewater is inefficient and contrary to the public interest. The fact that Niagara’s bottling process would produce 91,000 gpd of wastewater does not make it inefficient. Nearly every commercial and industrial water use has a wastewater component. In the context of water bottling processes and water treatment systems, Niagara’s operation is efficient. Groveland asserts that sending Niagara’s RO concentrate to the Mission Inn golf course or the City of Minneola for irrigation purposes is inefficient because a large portion of irrigation water is usually lost to evaporation and does not recharge the aquifer. This assertion fails to account for the fact that every gallon of RO concentrate used for irrigation reduces by one gallon the volume of groundwater that would otherwise be withdrawn for irrigation. Using Niagara’s wastewater for irrigation contributes to the efficiency of Niagara’s proposed use. There is typically a deficit of reclaimed water from public wastewater treatment systems in the summer when the demand for reclaimed water for irrigation and other purposes increases. Niagara’s supply of RO concentrate, however, would remain constant throughout the year. Mission Inn and Minneola would benefit if they were able to use Niagara’s RO concentrate. Niagara’s conservation plan for water use at its facility is equal to or better than the conservation plans incorporated into the CUPs that the District has issued to other beverage bottlers. Niagara’s proposed use was shown to be of such a quantity as is necessary for economic and efficient utilization. Sources of Lower Quality Water Florida Administrative Rule 40C-2.301(4)(f) states that reclaimed water must be used if it is “readily available.” Section 10.3(g) of the Applicant’s Handbook requires that the “lowest acceptable quality water source, including reclaimed water or surface water” must be used for a consumptive use, unless the applicant demonstrates that the use of a lower quality water source is not economically, environmentally, or technologically feasible. The requirement to use a lower water quality source, however, is not applicable when the water is for “direct human consumption” or human food preparation. § 10.3(g), Applicant’s Handbook. Groveland argues that the word “direct” should mean unaltered and, therefore, Niagara’s bottled water is not intended for direct human consumption because the water is treated before it is bottled. The District, however, does not interpret or apply the term “direct human consumption” to mean drinking water directly from the source without treatment. In the case of the water delivered to households and businesses by public water suppliers, which also must be treated before it is delivered, the District regulates the water as being for direct human consumption. The fact that Niagara would filter the groundwater, apply RO treatment, add acid to prevent mineral buildup in the RO equipment, and add minerals for taste if requested by customers, does not disqualify Niagara’s bottled water as being for direct human consumption. Because 454,000 gpd of Niagara’s proposed water withdrawal would be processed for direct human consumption, Niagara did not have to seek to use a source of lower water quality for that volume. The requirement to use available sources of lower quality water would apply to the 30,000 gpd that Niagara intends to use for cooling. There are technical and economic problems associated with using water of lower quality for the cooling process at the Niagara facility because higher TDS levels would damage the cooling equipment. Using water with higher TDS levels would also require greater volumes of water to achieve cooling. Niagara’s cooling system is designed to reject water when the dissolved solids reach a certain high level, and to replace the reject water with fresh water. Operating at higher dissolved solid levels would cause the system to reject water more frequently, so greater volumes of water would be needed for cooling and greater volumes of wastewater would be generated. Using surface water from the St. Johns River, which has TDS levels much higher than in the groundwater, would require twice as much water to operate Niagara’s cooling system. In addition, a 44-mile pipeline would be needed to convey water from the St. Johns River to the Groveland facility, which would involve much higher costs. Seawater has even higher TDS levels and would require desalinization and a different cooling system. Using seawater would require much greater volumes of water for treatment and cooling. Disposal of the brine concentrate generated by the treatment process would create additional costs. The use of seawater would require the construction of a 120-mile pipeline, which would involve large capital and operating costs. Groveland insists that the much higher costs associated with these sources of lower quality water are still economically feasible for Niagara based on Niagara’s projected income from its bottling operations. The District does not determine feasibility based on the balance sheet of the individual permit applicant. The District evaluates relative costs of alternative sources in the context of normal practices and expected benefits. Reliable volumes of reclaimed water to use in Niagara’s cooling system are not readily available to Niagara from domestic wastewater treatment facilities in the area. The spring water sources that Niagara is currently using are not sources of lower quality water. These sources are of equivalent quality to the groundwater that Niagara proposes to withdraw. Groveland contends that Niagara did not investigate the quality of the Lower Floridan Aquifer as a potential source of lower water quality water for Niagara’s proposed use. Groveland believes, but did not prove, that the Lower Floridan has lower quality water. Studies conducted by the U.S. Geological Survey indicate that the water quality of the Lower Floridan Aquifer is about the same or better quality than the quality of the water in the Upper Floridan Aquifer. Water quality data from a Lower Floridan well in the vicinity also indicates that the quality of the water in the Lower Floridan is as good as, or better than, the water quality in the Upper Floridan in this area. Withdrawals from the Lower Floridan create a risk of saline water intrusion into the fresh portion of the Lower Floridan or Upper Floridan. Niagara demonstrated that it is not technically nor economically feasible to use a source of lower quality water for its cooling water. Individual Effect on Wetlands and Lakes To identify the “zone of influence” of Niagara’s proposed withdrawal of water and to assess the individual and cumulative effects of the drawdown associated with the withdrawal, Niagara’s consulting hydrogeologist used a steady- state numerical groundwater model developed by the District, known as the East Central Florida (ECF) groundwater model. It is a steady-state model, which produces a value that represents a long-term average effect. The ECF model predicts the level of drawdown in the surficial aquifer. The model assumes that wetlands and other surface waters are directly connected to the surficial aquifer so that a given drawdown of the surficial aquifer causes the same drawdown of the water levels in wetlands and other surface waters. The ECF model is calibrated to water level data from 1995. A drawdown predicted by the model is a drawdown from 1995 water levels. The ECF model results are graphically depicted as drawdown contours that are overlaid on aerial photography. The District considers the condition and functions of the surface waters in and around the withdrawal site to determine how they might be affected by a predicted drawdown. The dominant surface waters in the area of the proposed withdrawal are sand hill lakes. There are few wetlands. In sand hill lake systems, water table levels fluctuate widely, as much as eight or ten feet. Consequently, these systems are colonized by herbaceous plants that are adapted to widely fluctuating water levels. The wetlands and lakes in the area are not currently showing signs of environmental harm as a result of existing groundwater withdrawals. Niagara’s modeling predicted that the proposed water withdrawal, by itself, would cause a maximum drawdown in the surficial aquifer of 0.1 feet, except for one small area where the predicted drawdown was 0.2 feet. All the expert witnesses were in agreement that Niagara’s drawdown, by itself, is unlikely to cause environmental harm. In fact, the impacts of such a small drawdown on the physical conditions or functions of wetlands or lakes in the area would probably be impossible to detect. Cumulative Effect on Wetlands and Lakes For the analysis of cumulative impacts, the ECF model takes into account all permitted withdrawals for the year 2013, because that is the key year for the regulation of water uses in the Central Florida Coordination Area (CFCA), which includes the site of Niagara’s bottling facility. The CFCA is discussed in greater detail later in this Recommended Order. The ECF model predicated that the cumulative surficial aquifer drawdown within the area of influence of Niagara’s proposed withdrawal would be less than one foot except for one small area where the drawdown is predicted to be 1.1 feet. Niagara submitted an environmental assessment report, the Lotspeich report, with its permit application. The Lotspeich report concluded that no ecological harm would be caused by Niagara’s proposed withdrawal. Subsequently, Niagara’s consulting ecologist, Dr. Shirley Denton, who has extensive experience with the effects of drawdowns on wetlands and other surface waters, reevaluated the potential effects of Niagara’s proposed withdrawal. Dr. Denton visited all of the natural systems in the field. It was her opinion that the cumulative drawdown would not cause unacceptable harm to these natural systems. The District’s environmental expert agreed with Dr. Denton. In the Central Florida sand hill lakes area, a drawdown of this magnitude is not an uncommon cumulative impact from groundwater withdrawals that the District has determined to be acceptable. Groveland presented the testimony of Dr. Jay Exum who opined that the cumulative drawdown in the area of Niagara’s proposed withdrawal would adversely impact wetlands. Dr. Exum’s opinion was based on his prediction that the cumulative drawdown would result in a substantial reduction in the size of the wetlands in the area. However, his opinion about the loss of wetland acreage is not persuasive because of the unconventional methodology2/ that he used and the unreasonable assumptions upon which his opinion was based. Dr. Exum reviewed land cover maps of Lake County, calculated the size and topography of eight wetlands in the area (only one was within Niagara’s zone of influence), came up with an estimated reduction in wetland acreage for these wetlands, and then extrapolated from that number a prediction of the total area of wetlands within Niagara’s area of influence that would be lost as a result of the cumulative drawdown. Dr. Exum did not account for the fact that the wetlands and lakes in the area already reflect most of the cumulative drawdown. The cumulative drawdown predicted by the modeling is not a drawdown below today’s average water levels; it is a drawdown below 1995 levels. In addition, Dr. Exum assumed that a drawdown in the surficial aquifer of .5 foot will cause the future loss of the vegetation at the outer edges of a wetland in an amount that can be calculated simply by determining how much area .5 feet of water would occupy. That assumption would only apply in a hypothetical, unnatural situation where water levels are constant and the wetland vegetation will not survive if the water table drops .5 feet. However, the actual situation is that the water table fluctuates widely in these natural systems and the vegetation is adapted to the fluctuations. The area “formerly” occupied by the .5 feet of water could still be inundated frequently enough to sustain the vegetation. Dr. Exum’s opinion about the environmental effects that would be caused by the cumulative drawdown of the surficial aquifer was given less weight than the opinions offered by Niagara’s and the District’s ecologists because Dr. Exum has little or no prior experience with the effects of drawdowns on natural systems. Dr. Exum’s professional experience is almost entirely with the impacts associated with construction activities in or near wetlands, which would not acquaint him with the unique, long-term responses of natural systems to water table drawdowns caused by groundwater withdrawals. Dr. Denton, who has over 25 years of experience with monitoring wetlands affected by groundwater withdrawals, stated that drawdowns in the surficial aquifer do not usually cause reductions in the size of a wetlands. The more persuasive evidence in the record demonstrates that Niagara’s proposed withdrawal would not cause adverse impacts to wetlands on an individual or a cumulative basis. Niagara provided reasonable assurance that any environmental harm caused by the proposed use has been reduced to an acceptable amount. The five-year duration of the permit is reasonable and appropriate. Public Interest Section 9.3 of the Applicant’s Handbook defines “public interest” as: those rights and claims on behalf of the people in general. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State. The policy and practice of the District has been to limit its public interest analysis to matters directly related to water resources and the management of those resources. Other matters, such as vehicle traffic generated by the applicant, are not considered by the District. Groveland suggests that Niagara’s proposed use, and perhaps all commercial/industrials uses, are less important and worthy than public water supply uses like its own, and should not be allowed to take water that a public water supplier might need in the future. As discussed in the Conclusions of Law, all reasonable beneficial uses of water are equal under Chapter 373, except in certain contexts which are not applicable here. Commercial and industrial activities that make consumptive uses of water, when conducted in conformance with regulations established to efficiently use and protect the water resources, are generally beneficial to the collective well-being of the people. Groveland also claims that Niagara’s CUP is not in the public interest because a portion of Niagara’s bottled water will be shipped out of Florida. Although Niagara cannot project precisely the amount of bottled water that would end in the hands of consumers residing out-of-state, an estimate of 20 percent was given. For beverage bottlers or any other commercial or industrial water users that incorporate water into their products, the District deems the location of the water use to be where the water is bottled or incorporated into the products. The District does not look to where products are ultimately purchased by a retail consumer. Therefore, the District did not consider the fact that a portion of Niagara’s bottled water would be consumed outside of Florida as a factor in the District’s determination of whether the proposed water use is in the public interest. Niagara’s withdrawal is within the Central Florida Coordination Area (CFCA), an area covering parts of the jurisdiction of three water management districts and which includes the City of Groveland and the site of Niagara’s proposed water withdrawal. The CFCA is a highly productive area for groundwater withdrawals, but the water management districts have determined that it does not have sufficient water to serve water needs above the levels that have been allocated through the year 2013. To protect the water resources of the CFCA, rules were adopted to require public water suppliers and other water users within the CFCA to use “supplemental water supplies” to meet their increases in demand after 2013. Supplemental water supplies are identified in the CFCA rules as reclaimed water, stormwater, surface water, and seawater desalinization. Niagara is not requesting additional water above its 2013 demand and, therefore, is not subject to the restrictions imposed by the various CFCA rules. Nevertheless, the District treated Niagara’s location within the CFCA as a matter affecting the public interest. The District determined that it was inconsistent with the public interest to allow Niagara to withdraw groundwater in the CFCA unless Niagara was required to participate in the development of supplemental water supplies. Therefore, Niagara is required by “Other Condition” 14 in the District’s Technical Staff Report, to identify potential partners for the development of supplemental water supply projects, determine the viability of developing the partnerships, evaluate potential supplemental water supply projects available, and submit a comprehensive written report evaluating whether identified projects are feasible future water supply sources for Niagara. The District imposed a permit expiration date of December 31, 2013, to enable the District and Niagara to reevaluate Niagara’s ability to use a lower quality water source after that date. Groveland does not believe the conditions imposed by the District go far enough and asserts that Niagara’s water withdrawal from the CFCA is still contrary to the public interest. Niagara’s proposed withdrawal is also within a Priority Water Resource Caution Area (PWRCA) designated by the District. The District designates priority water resource caution areas as part of its water supply 20-year planning process. In the PWRCA, the District has determined that there is inadequate groundwater in the Floridan Aquifer to meet all existing and future water needs, without having unacceptable impacts on the water resources. The District stated that the designation of a priority water resource caution area is strictly a planning tool and does not preclude the issuance of permits. CUPs are commonly issued for proposed withdrawals in priority water resource caution areas in the District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Consumptive Use Permit No. 114010 with the conditions specified in the Technical Staff Report and the additional condition proposed by the District and Niagara and set forth in paragraph 12, above. DONE AND ENTERED this 7th day of August, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2009.
The Issue Whether the activities conducted on respondent's property required a dredge/fill permit and whether respondent violated the conditions of the permit issued on February 15, 1985.
Findings Of Fact Respondent is the record holder of a parcel of land located within Section 35, Township 45, South, Range 21 East, in Lee County, Florida. Respondent's property is contiguous to Pine Island Sound, a Class II, Outstanding Florida Water. Maureen Powers, an Environmental Specialist with the Department initially inspected respondent's property on May 23, 1984, after the Department received an anonymous complaint that someone was clearing away mangroves on the property. Ms. Powers-discovered that an earthen-fill road had been constructed on the property, and a portion of the road, 24' x 43'; was located within the landward extent of the state's waters. The determination that the portion of the road was within the Department's jurisdiction was based on the dominance of black and white mangroves. There had been recent mangrove cutting in the area, and a pile of vegetative debris, the result of the cutting, had been placed in the jurisdictional wetlands contiguous to Pine Island Sound. On June 1, 1984, Ms. Powers met with respondent in Langley Adair's office to discuss the violations observed on May 23, 1984, and to discuss the resolution of these violations. Respondent agreed to remove all of the earthen fill and vegetative debris that he had deposited within the jurisdictional wetlands. He agreed to refrain from any further work within the jurisdictional area prior to receiving a permit from the department. He also agreed to open up a flow channel in the berm along Pine Island Sound to restore circulation to the area. On July 11, 1984, Ms. Powers conducted an on-site inspection and discovered that the vegetative debris and the fill material had not been removed. Further, it was apparent that respondent's proposed home site, outlined by string and stakes, was submerged and directly connected by water to Pine Island Sound. The water standing on the property covered a portion of the fill area. On August 8, 1984, another inspection was performed, and it was discovered that respondent still had not removed the fill materials. The condition of the property was essentially the same as it had been on July 11, 1984. By letter dated August 20, 1984, respondent was again notified of the violations and reminded that he had agreed on June 1, 1984, to remove the vegetative and earthen fill. Respondent was informed that he needed to remove the fill materials within 30 days of receipt of the letter in order to avoid further enforcement action. On September 5, 1984, Ms. Powers again inspected the property and found that the proposed homesite and a portion of the fill were still submerged, that the water connected directly with Pine Island Sound and the fill materials had not been removed. Also apparent was a flume of milky white water which originated at the toe of the fill and continued into Pine Island Sound. Water samples were taken which revealed that the erosion of the unauthorized fill was resulting in a violation of state surface water quality criteria, specifically, turbidity1 greater than 29 Nephelometric Turbidity Units above natural background. The background sample, taken upstream from the site of the discharge, had a value of 5.2 turbidity units. The water sample taken two feet from the toe of the fill had a value of 69 turbidity units, and the sample from Pine Island Sound waterward of the mangrove fringe had a value of 46 turbidity units. On October 9, 1984, a letter was sent to respondent which pointed out that the earthen and vegetative fill had not been removed and notifying respondent that erosion of the earthen fill into the waters of Pine Island Sound had resulted in violation of surface water quality criteria. Respondent was requested to immediately cease and desist from all unauthorized. activity under the Department's jurisdiction. To clarify the situation, original photos of the site were sent with the letter which showed the earthen fill, the vegetative debris, and the turbid water leaving the site. A diagram of the site was also included to show the location fill materials that were to have been removed. On October 25, 1984, Ms. Powers met with Mr. Decker at the site. Ms. Powers showed respondent the earthen fill and vegetative debris that should have been removed. Ms. Powers noted that the waterward 23' x 24' section of the earthen fill had become heavily colonized by black mangrove seedings and, therefore, excepted that portion of the fill from the removal requirement so that the seedlings would not be disturbed. Mr. Decker stated that he would remove the unauthorized fill within two weeks. Meanwhile, apparently in September, respondent had submitted a permit application. Mr. Beaver was the field inspector assigned by DER to evaluate the application and make a recommendation on the feasibility of the project to the dredge and fill supervisor. On October 8, 1984, Mr. Beaver performed the field inspection at the site, and on October 23, 1984, issued his permit application appraisal recommending that the application be denied. Mr. Beaver recommended that the project be reconsidered for a permit if, among other things, the house site were removed from the landward extent of the state waters and located in the uplands, the septic tank were removed from the low lying portions of the site, and previously cut areas were allowed to regrow in native vegetation. On November 15, 1984, Mr. Beaver met with Mr. Decker and Mr. Cantrell, the district supervisor of dredge and fill, to discuss the project. Mr. Cantrell asked how the project could be modified so that Mr. Decker could have his house in the location where he wanted it. Mr. Beaver suggested a stilt, elevated house with a small fill pad that would allow access to the entrance of the house. The house would have to be elevated -enough so that revegetation of wetland plants could occur underneath the house structure and water flow could be maintained. On November 19, 1984, Ms. Powers and Mr. Beaver met Mr. Decker at the property. Ms. Powers and Mr. Beaver staked the DER jurisdiction line and marked the proposed location of Mr. Decker's boardwalk. Mr. Decker asked about placing wood chip mulch on the wetlands on his property in order to beautify the area. Mr. Decker was informed that wood chip mulch was considered vegetative fill and would require modification of his permit application. Subsequent to the meeting of November 15 and the on- site inspection of November 19, Mr. Decker modified his project. However, wood chip mulch was not mentioned. On December 7, 1984, Mr. Beaver recommended that the application be approved subject to specified conditions, which were ultimately incorporated into the permit. On December 11, 1984, Ms. Powers inspected the site and discovered that a large pile of wood chips had been placed on the northeast end of the fill road waterward of the jurisdiction line. The vegetative debris and earthen fill that had previously been on the project had not been removed. Respondent was notified of the violations by a Cease and Desist letter dated January 4, 1985. The letter pointed out that respondent had been told specifically that wood chip mulch was considered vegetative fill and that dredge/fill permit would be required prior to the placement of any fill material. On February 5, 1984, respondent met with DER, officials to discuss the violations. Mr. Decker stated that the fill had been removed as requested. The Department informed Mr. Decker that an inspection would be performed and, if the fill had not been removed, the Department would pursue formal enforcement action. On February 7, 1985, the site was inspected none of the fill material had been removed. A subsequent inspection on February 20, 1985, revealed that the wood chips had been spread throughout the jurisdictional wetlands. On February 15, 1985, respondent received a permit to fill and to construct a dock and boardwalk. The specific conditions of the permit include the following: 2. A 20' x 16' - 4" fill pad shall be the only fill placed waterward of the jurisdictional line. This fill pad will be composed of clean sand and have the banks stabilized by a riprap revetment with a slope not greater than 2H:1V. * * * The house and all associated structures shall be built upon stilts with concrete footings and/or wooden pilings. On-site turbidity control devices shall be installed and properly maintained to localize turbidity impacts to the construction area. * * * All vegetative debris, trash and spoil material resulting from concrete footing placement shall be removed from the landward extent of State Waters as defined by the jurisdiction line staked by the DER. Upon completion of construction, non- filled areas beneath the stilt house and associated structures shall be returned to original grade if they were altered by construction. Wetland vegetation shall be planted in the previously cleared area and mangroves removed by construction activities shall be replaced on a 2 for 1 basis with 80% survival over a three year period. * * * 11. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.111 - Criteria - Class II Waters Shellfish Propagation or Harvesting, Surface Waters General Conditions 2 and 5 of the permit provide: 2. This permit is valid only for the specific processes and operation applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for 81' filled area was located within the landward extent of the state waters. 19. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 2\', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the revocation and enforcement action by the department. 5. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant or aquatic life or property and penalties therefor caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, unless specifically authorized by an order from the department. On March 19, 1985, an inspection of the property revealed that Mr. Decker had totally ignored the conditions of his permit. Rather than a fill pad of 20' x 16', respondent had filled an area approximately 78' x 81'.2 The fill was unstabilized, and no turbidity control devices were in place. Fill material had been used to construct a earthen berm across a natural flow channel, blocking the flow of water onto the property. Further, the vegetative debris resulting from the construction of the boardwalk had been deposited in the mangrove wetlands. On March 22, 1985, a Notice of Violation and. Orders for Corrective Action was sent to the respondent. Respondent received the notice on or about March 26, 1985. The landward extent of the state waters on respondent's property, the area in which a DER permit is required for dredging and filing, was determined by the presence of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), and saltwort (Basis maritime) as the dominant species. The jurisdiction line was originally staked on November 19, 1984, and was reestablished on April 23, 1985, from remaining landmarks, due to the original markers being removed. The 78' x81' filled area was located within the landward extent of the state waters. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 21/2', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the jurisdictional wetlands, but respondent placed a septic tank and drainfield in that area.3 By filling an area several times the size of the area authorized, respondent has seriously violated the conditions of the permit. A fill area of the size that now exists eliminates the habitat and water quality functions that the area historically performed. Respondent has violated Specific Condition #4, which required that the house and associated structures be built on stilts. The purpose of such a requirement is to preserve undisturbed the existing substrate, which constitutes the base of the food chain, and to allow for a free flow of water across the site, which is essential to the health of the mangrove system. Respondent not only filled an area larger than his proposed house, he poured a solid, continuous, concrete foundation on top of the fill, which would prevent the flow of water should the water rise high enough to come onto the filled area.4 By filling the area, destroying the substrate, and preventing the flow of water into the area, respondent has violated Specific Condition #4 of the permit. Respondent violated Specific Condition #5 of his permit in that respondent failed to install any turbidity control devices. Turbidity control devices of some sort are necessary in a fill area such as the one in this case. Turbidity screens or staked hay bales could have been used. Respondent also violated Specific Condition #8. Construction debris and vegetative debris were located throughout the area. Although respondent technically has not violated Specific Condition #9, in that it requires acts to be performed "upon completion of construction", respondent has made compliance with that provision an impossibility because he has filled the "non- filled areas beneath the stilt house" and therefore there are no "non-filled areas" to return to original grade. Respondent has never requested that his permit conditions and requirements be modified. By his actions, respondent has repeatedly shown a complete disregard for the requirements of the law, and he has totally ignored the conditions set forth in the permit. Mr. Decker was not qualified as an expert and I did not find him to be a credible witness. The reasonable costs and expenses incurred by the Department in relation to the enforcement aspects of this action are $866.17. These costs and expenses were incurred by the Department in its effort to control and abate pollutants and to restore the waters and property of the state to their former condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the respondent's permit, number 360902245, be revoked that the respondent be ordered to make payment to the Department in the amount of $866.17 for costs and expenses incurred by the state and that the following corrective action be ordered: Respondent shall within thirty (30) days, remove all unauthorized fill material placed within the area of Department jurisdiction. Prior to initiating the fill removal respondent shall arrange for Department personnel to stake the area to be restored. All areas shall be restored to the elevation and soil conditions which existed prior to the placement of fill material. Respondent shall take all necessary precautions to ensure that state water quality standards are not violated during the restoration work. Respondent shall not disturb adjacent areas within the jurisdiction of the Department unless approved by the Department in writing. DONE and ENTERED this a 24th day of January, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986.
The Issue The issue for consideration in this case is whether the Department of Environmental Protection should issue a permit to Sarasota Bay Hotel, Inc., to modify and expand an existing marina facility associated with an existing adjacent hotel, based on reasonable assurances from the applicant that the proposed project satisfies the applicable statutory and rule criteria.
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection (Department) was the state agency in Florida responsible for the review of environmental resource permit applications and for the regulation of water pollution in specified waters of the state. SBH is a Florida corporation and the general partner of Hotel Associates of Sarasota, Limited (Hotel Associates), the owner of the property in question. The complex at issue is composed of the Hyatt Hotel and certain submerged land underlying the proposed project. SBH is the authorized agency for Hotel Associates for the purpose of obtaining the permit in issue. Petitioners are associations of condominium owners whose properties lie adjacent and to the west of the site in question. The parties stipulated that all Petitioners had standing in this proceeding. The site at issue, owned by Hotel Associates, consists of a portion of the submerged bottoms within a sea- walled, rectangular-shaped, man-made basin which runs in a north-south direction west of U.S. Highway 41 in Sarasota. It is connected by a narrowed channel to Sarasota Bay at its southern end. Hotel Associates owns approximately the northern one-third of the basin, and Petitioners own approximately the western one-half of the southern two-thirds of the basin. Petitioners' property is not covered in the proposed permit. The remaining portion of the basin, comprised of the eastern one-half of the southern two-thirds, is owned by an entity which is not a party to this action, and that portion of the bottom also is not covered by the proposed permit. However, in order for boat traffic to reach the property in issue, the boats must traverse the southern two- thirds of the basin. Both Petitioners and the unconnected third owner maintain existing finger piers within their respective portions of the basin outside the portion in issue. The basin in which the marina in question is located is classified as a Class III water body and is connected to Sarasota Bay, which is a Class III Outstanding Florida Water. Sarasota Bay is located approximately twelve hundred feet from the head of the basin and approximately eight hundred feet from the southern property line of the basin. As of the date of the hearing, the applicant, SBH, operated a permitted marina facility within the perimeter of the property in issue. This permit was issued years ago after the fact; that is, after the marina had already been constructed. As it currently exists, the marina is made up of perimeter docks which adjoin the northern and eastern sides of the basin and includes eight finger piers which provide ten to fifteen slips. In addition, a perimeter dock extends around an existing restaurant which sits on pilings over in the northeast end of the basin. Repairs and modifications were made to the facility under then-existing exemptions in 1995. These included the replacement of numerous copper, chromium, and arsenic (CCA) treated pilings and the re-decking of existing walkways and finger piers with CCA-treated wood. At the present time, seven of the finger-pier slips are under lease to a commercial charter fleet, Chitwood Charters, and one slip located along the perimeter dock is leased to a dive boat operation, Scuba Quest. At least one other finger-pier slip has a boat docked at it for an extended period. This boat is owned by Charles Githler, president of SBH. The remaining finger-pier and perimeter slips are ordinarily used on a transient basis by guests of the Hyatt Hotel and the restaurant. The existing facility, including the finger piers slips and the perimeter slips, contains approximately 6,700 square feet of docking space and is designed to accommodate between twenty to thirty boats, depending upon the length of the boats. On occasion, however, as many as 40 to 60 boats have been docked at the facility. At times, when demand increases, the larger slips have been subdivided to allow up to four boats to be stern-moored per slip. Even more boats have been docked at the facility for boat shows by the use of stern mooring or "rafting," which calls for boats to be moored tied together, side by side, out from the docks. By application dated May 18, 1999, and received by the Department's Tampa District office on June 16, 1999, SBH sought to obtain from the Department a permit to modify and expand its existing marina facility. It proposed to expand the existing approximately 6,700 square feet of dock space to approximately 7,000 square feet, thereby creating a marina with 32 designated slips. Conditions to issuance of the permit, agreed to by the applicant, include a limitation on the number of boats which may be moored at the facility at any time and the addition of storm water treatment capability to the existing storm water drainage system. SBH also agreed to reduce the terminal end of the middle pier from 900 to 400 square feet. SBH also agreed to accept the imposition of several other permit conditions required by the Department, and to offset any impacts on wildlife and water quality as a result of the operation of the permitted facility. In addition to requiring that all long-term slip leases incorporate prohibitions against live-aboards and dockside boat maintenance, these conditions include the following: Overboard discharges of trash, human or animal waste, or fuel shall not occur at the docks. Sewage pump-out service shall be available at the marina facility. * * * 18. Fish cleaning stations, boat repair facilities and refueling facilities are not allowed. 20. There shall be no fueling or fueling facilities at the facility. * * * 28. The shoreline enhancement indicated on Attachment A shall be implemented within 30 days. * * * 30. The permittee shall perform water quality monitoring within the basin at the locations indicated on Attachment A semiannually (January and July of each year) for a period of 5 years. * * * All piles shall be constructed of concrete with exception of 18 mooring piles identified in permit submittals. This permit authorizes the mooring (temporarily or permanently) of a maximum of [32] watercraft at the subject facility. A harbormaster must be designated and maintained at the subject facility. In order to be in compliance with this permit, the ”OARS Ultra-Urban" hydrocarbon adsorbent insert, or Department approved equal, must be installed within the catch basin inlets as shown on the approved drawings. At a minimum, the hydrocarbon adsorbent material shall be replaced and maintained in accordance with manufacturer's instructions. More frequent inspections and replacement of the filtration media may be required, depending on local conditions and results of the required water quality monitoring. * * * The permittee/grantee/lessee shall ensure that: In order to provide protection to manatees during the operation of this facility, permanent manatee information and/or awareness sign(s) will be installed and maintained to increase boater awareness of the presence of manatees, and of the need to minimize the threat of boats to these animals. SBH has also agreed to replace existing CCA-treated wood decking with concrete and fiberglass decking and to replace approximately 80 existing CCA-treated wood pilings with concrete pilings. Based on its analysis of the permit application and the supporting documentation submitted therewith, the Department, on March 2, 2000, entered a Notice of Intent to issue the permit for this project. Shortly thereafter, on March 25, 2000, after obtaining a minimal extension of time to file, the Petitioners filed a Petition for Administrative Hearing opposing the issuance of the proposed permit. Departmental decisions on water quality permits such as that in issue here are dependent upon the applicant satisfying the Department's requirements in several identified areas. These include the impact of the project on water quality; impact of the project on the public health, safety, and welfare; impact of the project on the conservation of fish and wildlife, including threatened or endangered species; impact of the project on navigation, the flow of water, erosion and shoaling; impact of the project on the immediate fishing, recreational values and marine productivity; impact of the project on archeological resources; impact of the project on the current condition and relative value of functions currently performed by areas to be affected; whether the project is permanent or temporary; and a balancing of the criteria, cumulative impacts, and secondary impacts. Addressing each of these in turn, it is clear that the current quality of the water within the existing marina is below established standards. Respondents admit that Petitioner has shown that the existing marina operation has diminished water quality conditions and created an environment that has potential adverse impacts to the fish and wildlife which frequent the basin as well as some of the neighboring property owners. This is not to say that these impacts were envisioned when the basin was constructed. However, other than as they relate to fish and wildlife and to water quality, the problems created by the marina do not relate to most permit criteria. The Respondent's experts calculate that due to its configuration and location, the basin naturally flushes approximately every 14.75 days. This is an inadequate time period to fully disperse any pollutants found in the basis. As a result of the inadequate flushing and the continuing use of the basin as a marina, there are resulting impacts to the water quality surrounding the existing facilities. Mr. Armstrong, Petitioner's water quality expert, indicated the project as proposed would lengthen even further the flushing time because of the addition of new boats and, to a lesser degree, the additional pilings and dock structure. These additions would, he contends, result in additional obstructions to water movement and cause a resultant increase in flushing time. While flushing is not a requirement of the permit, it has a bearing on water quality which is a consideration. Petitioners also argue that the mitigation measures proposed in the permit are inadequate and attack the qualifications of Mr. Cooper, the Department's storm water engineer. They point out alleged errors in Cooper's analysis and cite Mr. Armstrong, an individual with significant experience in water quality monitoring and analysis, to support their other witnesses' conclusions that more boats will increase the risk of hydrocarbon pollution from gasoline and diesel engines. Petitioners urge that the increased contamination, when coupled with the slow flushing action, would tend to settle down to where the pollutants enter the water - in the basin. Since it is clear these impacts would exist and continue even were the pending project not constructed, the issue, then, is whether the proposed project will worsen these environmental impacts. Respondents' authorities calculate they would not. In fact, it would appear the proposed changes called for in the permit, the removal of CCA-treated wood and its replacement with concrete piling and decking and the installation of storm water treatment apparatus, would reduce the adverse impacts to water quality within the basin and, in fact, improve it. It is so found. An issue is raised in the evidence as to the actual number of boats which can effectively use the marina at any one time. SBH contends the present configuration calls for between twenty to thirty boats. Evidence also shows that at times, during boat shows for example, many more boats are accommodated therein through "rafting." Even if the facility is expanded by the most significant number of slips, there is no concrete evidence there would be a significantly increased usage. The current usage is normally well below capacity. Modifications proposed under the pending permit could add as many as ten to fifteen additional slips. The Department has considered it significant that SBH has agreed to limit the number of boats that can be docked in this marina, even after modification. Unfortunately, no specific figure has been given for this limit, and, therefore, it cannot be shown exactly how much long-term water quality benefit can be expected. Nonetheless, it is a reasonable conclusion to draw, as the Department has done, that if the number of boats is limited to a figure at or even slightly higher that that which is currently experienced, a long-term benefit can be expected with the implementation of the other mitigation conditions. This benefit currently cannot be quantified, however. What can be established, and all parties agree, is that the basin currently does not meet water quality standards for copper and dissolved oxygen. The proposed permit addresses the issue of dissolved oxygen by requiring SBH to follow best management practices in the operation of the marina; to treat storm water discharge which enters the marina; and to provide a sewage pump-out station at the marina which would prevent the discharge of sewage into the water. The issue of the water's copper level is addressed by the removal of the CCA-treated pilings and decking and their replacement with concrete and fiberglass; the treatment of the storm-water discharge before its discharge into the basin; and the hiring of a harbor master to ensure that the prohibition against hull scraping at the basin is complied with. A restriction on the number of boats allowed into the marina at any one time would also treat the copper problem by reducing the exposure to anti-fouling paint containing copper. This is a condition of the permit. It is important to note that under existing statutory and rule exemptions, SBH could repair or replace the existing dock structure without the need for a permit. However, the issuance of a permit which permits modification and a slight expansion of the facility will prohibit the replacement of the existing CCA-treated wood with CCA-treated wood. The concrete and fiberglass pilings and decking will not leach copper into the water and, in time, should result in a lower concentration of that substance in the water. Another consideration of the permitting authorities relates to the impact the project would have on public health, safety, and welfare. Petitioners expressed concern that an increase in the number of slips called for in the proposed project would cause an increase in the number of boats that utilize the basin. Currently, though there are a limited number of slips available, there is no limitation on the number of boats which may use the facility. A reasonable estimate of capacity, considering the configuration of the docks and slips and the permit limitations established, indicates that no more than thirty-two boats will be permitted to use the basin at any one time. If this limitation is followed, it is reasonable to expect an improvement in the water quality. Petitioners also express concern that an increase in the number of authorized boats using the marina will result in an increase in the number of boats traveling at excessive speeds in entering and exiting. No evidence was introduced in support of this theory, but, in any case, Respondents counter- hypothesize that the increase in allowed boats will result in an increase in long term lessors over transients, and suggest that long term users are more considerate than transients. Neither side presented any substantial evidence in support of its positions. The impact on the conservation of fish and wildlife is a mandated consideration by the agency. No evidence was presented by either side regarding the existence of fish and wildlife in the area, much less threatened species, other than manatees. To be sure, these noble creatures inhabit the marina at times in appreciable numbers. The threat to them, however, comes from boat strikes, and no evidence was presented as to the number of strikes caused by boats in the marina or its approaches or the seriousness of these strikes. The agency to which the review of impacts to manatees was left, the Florida Fish and Wildlife Conservation Commission (FWCC) opined that the permit cap of 32 boats would keep to a minimum the potential impact to manatees from this project. Any increase in the number of boats, and the minimal impact increase thereby, should, it was considered, be offset by compliance with permit conditions. This opinion was contradicted by Mr. Thompson, Petitioner's manatee expert, who argued against any increase of boat traffic in manatee areas. This position is not the policy of the Department and is not controlling here. Further, it would appear this expert did not consider any mitigation factors proposed by SBH, as the Department is required to do. Taken together, the weight of the evidence supports a finding that the expected impact of this project on fish and wildlife, including those threatened and endangered species, is minimal. Based on the evidence of record, it is found that the expected impact of this project on navigation, the flow of water, erosion, and shoaling in the vicinity is virtually non- existent. The only factor bearing on this issue is the number of boats which will use the facility and its approach. Permit conditions call for a limitation on the number of water craft which will use the facility to be permitted to a number lower than that which uses it, at times, under current conditions. The water is a dead-end harbor, with no through traffic. There is no evidence of either erosion or shoaling now. It would not likely increase. A reduction in traffic as would occur under the conditions imposed by the permit can do nothing but reduce the potential for propeller dredging by boat traffic and the water turbidity that would accompany such strikes. This would improve navigation slightly, and there should be no adverse impact to the flow of water. The evidence presented at hearing did not establish any negative impact on fishing or marine productivity in the vicinity of the proposed project, which is permanent in nature. By the same token, no adverse effect to significant historical or archaeological resources was shown by the evidence of record. The facility in issue is currently a commercial activity consisting of a docking facility and a restaurant. No evidence was introduced to show that the project proposed would have an adverse impact on the current condition and relative value of the current function. In fact, the evidence indicates that the facility would be improved. Though not raised by the evidence, it should be noted that Petitioners presented no evidence that their property values as adjacent property owners, would be adversely effected by this project. In balancing the criteria, cumulative impacts and secondary impacts of the proposed project on the immediate and surrounding area, it appears that the applicant has provided reasonable assurances that the project is not contrary to the public interest. The marina supports the hotel and restaurant which is on it. Adjoining property owners, the Petitioners, expressed concern that the modifications to the existing marina will result in a decrease in water quality in the basin; will increase the potential for fuel spills with their related short term discomforts and long term damages; and will increase the danger to the manatee population which periodically uses the basin. While they are entitled to the quiet enjoyment of their property, it is unreasonable for those who live on the water to expect that the benefits of living by the water would not carry with it the potential for some periodic discomfort created by waterfront activity. The weight of the evidence presented in this case indicates no significant cumulative adverse impacts from this project. To the contrary, the state of the evidence suggests an improvement in water quality and navigation in the basin and its approaches, and any secondary impacts resulting from the accomplishment of the project would be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order issuing to Sarasota Bay Hotel the requested permit to modify and expand the existing marina facility located adjacent to the existing Hyatt Hotel at 1000 Boulevard of the Arts in Sarasota, Florida. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Barbara B. Levin, Esquire Scott A. Haas, Esquire Abel, Band, Russell, Collier, Pitchford & Gordon 240 South Pineapple Avenue Sarasota, Florida 34236 Graig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Hanson, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street Suite 403 Sarasota, Florida 34237 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact 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
The Issue At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues. Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards. Background The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses. In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/ Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2 Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life. As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants: To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of +1.4 Ft. NGVD which will be planted with red mangroves. DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction. The Monroe County permits On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit. As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park. While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek. The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least 15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life. While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment. To mitigate the loss of habitat types, the Monroe County permit provides: The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area. Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal. To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition: The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met. The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek. John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy. Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4 Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides: If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met. The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park. Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations Lack of plat approval As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal. Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides: Sec. 9.5-1. Purpose. It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . . Sec. 9.5-2. Applicability. General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a development permit under the provisions of this chapter and other applicable laws and regulations. Sec. 9.5-81. Plat approval and recording required. * * * No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which the construction is proposed. * * * (e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division. Sec. 9.5-94. Amendment of a recorded final plat. An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat. Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/ The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide: Sec. 9.5-82. General Standards for Plat Approval. No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval. Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section. Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning. Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to the development review committee, which shall prepare a recommendation and report for the commission. Public Hearing and Action by the Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee. Effect of Approval of Preliminary Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat. Sec. 9.5-84. Final Plat Approval. Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section. Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44, development review coordinator shall submit the application and accompanying documents to the development review committee. Review and action by Development Review Committee. The development review committee shall review all applications for final plat approval. b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity. Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47. Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C. Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section 9.5-47. Sec. 9.5-90.Maintenance of Private Improvements. If any plat of subdivision contains streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed. As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/ Open space requirements and environmental design criteria Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction. In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or portion thereof, adopted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. (a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added) Sec. 9-804 (MCLDR) Open space requirements. No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type. Land Type on Existing Open Space Conditions Map Ratio Open Waters 1.00 Mangrove and Freshwater 1.00 Wetlands Salt Marsh and Buttonwood .80 Associations .85 High Hammock (High Quality) .80 High Hammock (Moderate Quality) .60 High Hammock (Low Quality) . 4 Low Hammock (High Quality) .80 Low Hammock (Moderate Quality) .60 Low Hammock (Low Quality) . 4 Palm Hammock .90 Cactus Hammock .90 Pinelands (High Quality) .80 Pinelands (Low Quality) .60 Beach Berm .90 Disturbed . 2 Disturbed with Hammock . 2 Disturbed with Salt Marsh and Buttonwood . 2 Disturbed Beach/Berm . 2 Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added) Sec. 9.5-345. Environmental design criteria. No land, as designated on the existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation. (m) Mangroves and Submerged Lands: Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added) From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community. In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan. The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides: Sec. 2-104. Nearshore Waters The Florida Keys are dependent nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant of the biological character of submerged lands. To limit the location of water- dependent facilities at locations that will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes. To limit the location of docking facilities to areas which have adequate circulation and tidal flushing. To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas. To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges. To monitor nearshore water quality to ensure that growth and envelopment is not degrading nearshore water quality. To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated. Sec. 2-105. Wetlands and Associated Systems Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood. In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to the onslaught of storm-driven winds and water. OBJECTIVE To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys. POLICIES To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. * * * Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact. * * * 3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact. The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. . Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest. The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas which could support such growth and could potentially enhance the environmental quality. As far as possible, natural patterns of gradual and dispersed runoff will be maintained. Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported. Marine Resources Areas of Particular Concern Site-specific Designations Lignumvitae Key Aquatic Preserve. * * * Management Policies: B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve. * * * 3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary. Management Policies: * * * B. Development activity on Key Largo, including dredging and filling, urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies A. These biotic communities will be preserved to the fullest extent possible. Natural Vegetative Resources The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy. Natural Vegetation Management Policies In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest. Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals. While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990. WILLIAM J. KENDRICK 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 19th day of October 1990.
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, 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 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
The Issue The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
Findings Of Fact The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at 21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department. The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding. Dr. Peebles testified: I can't honestly believe that me filling 14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for . . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these subjects. (Tr. at 19) Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71) Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake. On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr. 35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception. The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected. The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent, substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception. The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing." Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69) However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony. To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Burden of Proof The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877. At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/ Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted. Cumulative Impacts The Department takes exception to the Hearing Officer's conclusion of law that: Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6) At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989). As my predecessor Secretary Tschinkel observed: Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985). The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988). - The doctrine was approved by the courts in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted. It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990). In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects. As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected. The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof. Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects. Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes. Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1) For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception. Public Interest Test The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application. DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida1 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725 The Agency filed proposed findings of fact which were read and considered. The Agency's findings were adopted or rejected for the reasons indicated as follows: Paragraphs 1-10 Adopted Paragraph 11 Adopted that it will damage fishing; however, this damage will be insignificant and will not truly affect tee fishing on the lake. Paragraph 12 Adopted The Applicant's letter was read and considered as oral argument on the issues presented at hearings. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606 William H. Congdon, Esq. Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2001.
Findings Of Fact By application dated August 28, 1984, Petitioner sought a permit from Respondent to deepen an existing ditch on his property from a current depth of one and a half feet to a proposed depth of three feet. The ditch is eight feet wide and eight hundred and fifty feet long and extends through a wetlands area to Lake Tohopekaliga which has been classified as a Class III waterbody. Petitioner intends to dredge approximately 377 cubic yards of material waterward of the ordinary high water elevation in order to make the existing storm drainage ditch navigable. This application was received by Respondent on September 11, 1984, and was accepted as complete on November 6, 1984. On January 9, 1985, an on-site inspection was concluded by Barbara Bess supervisor of dredge and fill permitting in Respondent's Orlando district office, who thereafter prepared an appraisal report dated January 23, 1985. As expressed in her report, Bess' primary concern with this application was the potential loss of fish and wildlife habitat which would result from the loss of grasses and macro-invertebrates resulting from the proposed project. Lake Tohopekaliga is a very popular and productive sportfishing lake, and the cumulative effect of such dredging activity, if it occurred around the lake would have a severely negative impact on the lake's food chain. This would in turn have adverse consequences for sportfishing and the water quality of the lake. Since similar drainage ditches do exist around the entire lake, there is a reasonable likelihood of similar projects occurring if this one is approved. Petitioner proposes that his dredging take place during a draw-down of Lake Tohopekaliga which has already been planned, and contends that the negative impact of the proposed deepening will be minimized since the ditch will be substantially dry during the draw-down. Petitioner's contention, however, is not supported by the evidence. Testimony from Barbara Bess, who was accepted as an expert on water quality standards and the biological impact of construction projects on water quality, and testimony from Ed Moyer, fisheries biologist with the Game and Fresh Water Fish Commission, established that Petitioner's ditch may not be completely dry during the draw-down, and that the proposed deepening will increase boat traffic due to the ditch's navigability, thereby reducing vegetation and harming the food chain in the immediate area of the ditch. The cumulative effect of similar projects occurring, even during the draw-down, will be negative for sportfishing and the water quality of the lake. Respondent issued its Intent to Deny on January 25,1985, in response to which Petitioner timely sought a hearing. The parties were allowed to submit proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding 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.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's permit application. DONE and ENTERED this 23rd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN 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 23rd day of May, 1985. COPIES FURNISHED: Ross Gwin 1731 Juniper Circle St. Cloud, Florida 32769 Ron Cray 1731 Juniper Circle St. Cloud, Florida 32769 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
