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 Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches.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 Petitioner is the owner and developer of a parcel of land located on the eastern side of the northern end of Key Largo, Monroe County, Florida. Located in the middle of that parcel is a dead-end east-west canal approximately two feet deep at its eastern end where it opens to the Atlantic Ocean and approximately twenty feet deep at its western dead-end. The canal is approximately fifty feet wide. A plug at the mouth of the canal previously prevented boat traffic from entering and exiting the canal. Petitioner's predecessor in title permitted the plug to partially erode, and Petitioner's president had some of the boulders which helped form the plug removed. The digging of the canal, the placement of the plug, and the partial removal of the plug were performed without benefit of state and federal permits. Petitioner's development plan is that twenty single-family homes will surround the canal, with each home being serviced by a septic tank and a boat dock. On the oceanside of the partial plug is a small depressed area which was dredged at the same time that the canal itself was dredged. Surrounding that depressed area is very shallow water. Petitioner proposes to remove the plug from the existing canal and shallow the canal to a uniform depth of -10 feet and two years later to a uniform depth of -6 feet. Petitioner further proposes to dredge an access channel from the mouth of the canal northward for a distance of approximately 480 feet where it would join with an existing channel. The access channel proposed to be dredged would be approximately fifty feet wide and six feet deep at low tide. The area to be dredged to create the access channel is classified as Class III waters, is within the Florida Keys Special Waters, and is also classified as Outstanding Florida Waters. The waters outside the existing canal where Petitioner proposes to dredge the access channel are also located within John Pennekamp State Park, the site of a natural coral reef. Due to the disparity in depths between the shallow waters outside the existing canal which are only one or two feet deep and the depth of the existing canal which is as deep as twenty feet, the canal itself experiences a very long flushing time. The lengthy flushing time causes the waters in the existing canal to fall below minimum state water quality standards The area proposed to be dredged for the navigational access channel is thickly vegetated by a productive seagrass and algae community. The area is in excellent condition, and the seagrass and algae community is very healthy. The seagrass and algae communities serve as habitat for thousands of organisms, including juvenile lobster and other small plants and animals; serve as a food source for animals; stabilize sediments through their root structures; reduce pollution by filtering pollutants from the water; are a natural feature of the John Pennekamp State Park, and are part of the ecological unit that is important for the survival of reef corals. The proposed dredging of the access channel would destroy an area of approximately one-half acre. Excessive turbidity is often a problem with dredge and fill activities, and reef coral need clear water for survival. Once dredged, the proposed access channel would not be expected to revegetate. Further, the proposed dredged channel will violate state water quality standards for dissolved oxygen. The proposed navigational access channel would connect the mouth of the existing canal with the Post channel to the north of Petitioner's property. The Post channel dug in approximately 1971 is also six feet deep, violates state water quality standards for dissolved oxygen, and has never revegetated even though replanting of vegetation has been attempted. The destruction of the one-half acre area of healthy productive habitat would adversely affect fish and other marine wildlife, resulting in a decrease in fishery production and marine productivity. The residential subdivision will be a source of pollutants from, among other things, septic tanks, fertilizers, stormwater run-off from paved areas, boats, and boat engines, into the existing canal in violation of state water quality standards for Class III waters and would lower the ambient water quality of the adjacent Outstanding Florida Waters. The long flushing time of the canal, even if shallowed as proposed, will result in the waters of the canal failing to meet state water quality standards. Any pollutants or organic material entering or blown into the canal will remain in the canal to be broken down by bacteria which consume oxygen, resulting in low dissolved oxygen in violation of state water quality standards. Further, pollutants will be exported periodically into the receding waters outside the canal, resulting in degradation of those Outstanding Florida Waters. The project is not in the public interest since the project will result in water quality violations and in the destruction of an area of highly productive shallow water habitat. The adverse cumulative impacts of allowing riparian landowners along the Florida Keys to dredge access channels are overwhelming.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Denying Petitioner's application for a permit for its proposed project, and Dismissing Intervenor Izaak Walton League, Mangrove Chapter, as a party to this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of November, 1989. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-1813 Petitioner's proposed findings of fact numbered 1 and 2(a) have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 2(b) and 2(d) have been rejected as not being Supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 2(c) has been rejected as being irrelevant to the issues under consideration in this cause. The Department's proposed findings of fact numbered 1-10 and 12-22 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed finding of fact numbered 11 has been rejected as being unnecessary for determination of the issues herein. Intervenor's proposed findings of fact numbered 1- 13, 16, 18, 20, and 21 have been adopted either verbatim or in Substance in this Recommended Order. Intervenor's proposed finding of fact numbered 15 has been rejected as being unnecessary for determination of the issues in this cause. Intervenor's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Pamela P. Garvin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 Cayetano F. Alfonso, President Sunland Estates, Inc. 17400 Northwest 17th Avenue Miami, Florida 33056 Maureen B. Harwitz, Esquire 2390 Bayview Lane North Miami, Florida 33181 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact In June 1984, Clark Vargas applied for a permit with the Department of Environmental Regulation for activities in the waters of the state. The application stated that the proposed activity was to construct a soil road 700 feet long and constructed of 2,000 cubic yards of fill to be deposited landward of the mean high water line. The roadway proposed was to have Geotextile Fabric placed over it, and would have fifteen inch culverts for cross flow. The purpose of the road was to allow 8 property owners to have automobile access to their lots. Attached to the application was a copy of a larger engineering drawing of the project, reduced to letter size paper. The larger drawing C in evidence as Responder's Exhibit 1, and the original application is in evidence as Respondent's Exhibit 2. The drawing depicts the construction that is proposed, and in the notes states that the mean high water line is 1.1 feet above mean sea level. The drawing (Respondent's Exhibit 2) shows a number of elevation readings along the road. The elevation readings on the land upon which approximately one half of the road is to be located, the southerly portion closest to Julington Creek, and adjacent to lots 19 through 26, are all below the elevation of mean high water. The data as to the mean high water elevation for the note on the drawing was obtained by Mr. Vargas from the Corps of Engineers. The elevations on the road were the elevations measured by a survey caused to be conducted by Mr. Vargas starting from a U.S.G.S. benchmark three quarters of a mile away. The survey was conducted by a registered land surveyor. Mr. Vargas stated that the survey was not meant to be a survey to establish mean high water, and that it was intended to determine a price and plan for construction. In Mr. Vargas's professional opinion, the survey was not adequate to establish the mean high water line. Timothy J. Deuerling, an Environmental Supervisor I for the Northeast District, visited the site of the project in the summer of 1984. He saw water throughout the area. He developed the initial opinion that the project was landward of the mean high water line. When he returned to the office, he looked at the small attached drawing and decided that the project appeared to be mostly landward of the mean high water line. The elevations are very unclear on the reduced size version attached to the application. Mr. Deuerling's statement as to the mean high water line is contained in Respondent's Exhibit 4. It is the finding of the Hearing Officer that the drawing was so small and the elevations so unclear that Mr. Deuerling's opinion as to the mean high water line in Exhibit 4 is not reliable, and is rejected. Jeremy G. Tyler, Environmental Supervisor of the Dredge and Fill Section, North East District, said that the conclusions contained in the Intent to Deny and Final Order of Denial, Respondent's Exhibits 7 and 6, that one-third of the fill was to be placed waterward of the mean high water line, was based upon the data provided to DER by Mr. Vargas, Respondent's Exhibit 2. Mr. Tyler said that it is very hard to determine mean high water line by site inspection, and that he credited the survey as better evidence. It is she finding of the Hearing Officer that the location of the mean high water line has not been established by the evidence. This finding is not based upon the testimony of Mr. Vargas, however. Mr. Vargas did not present any evidence that the standard for mean high water, which was obtained from the Corps of Engineers, was inaccurate, and he did not present any evidence that the survey elevations on the drawing were inaccurate. There is good reason to believe that the proposed road in this case may be, at least with respect to the one half from lots 19 through 26, waterward of the mean high water line. The evidence shows there is an elevated ridge along the edge of the canal, that this ridge was caused by deposit of dredged material when the canal was dredged in the 1950's or 1960's, and that the ridge has eroded in places, and the water from the canal and Julington Creek floods much of the area from time to time through low places in the ridge. The engineering drawing, however, runs a series of elevation readings across only two places on the ridge, and in both cases there is at least one reading above mean high water level. Further, the only reading at a spot directly on the open water is at the southerly end of the proposed road, and it also is above mean high water. It is possible, therefore, that although portions of the road are below mean high water elevation, these portions may be completely surrounded by higher ground. It is also possible that the several low spots on the canal ridge bring the mean high water line to the road itself. On this record, it is not possible to conclude where the mean high water line is. The site of the proposed road and surrounding lots are located in a hardwood swamp associated with Julington Creek in Duval County. The land upon which the road would be built is heavily wooded. Julington Creek is Class III waters of the state. The land upon which the road is to be built is the landward extent of the waters of the state. All of the Petitioners stipulated at the hearing that the Department of Environmental Regulation has jurisdiction to require a permit for fill pursuant to Chapter 403, Florida Statutes. The proposed project would result in the placement of silica fill upon a strip of wetlands described above measuring 25' by 702.5', which is 17,562.5 square feet, plus four driveway pads to lots measuring 25' by 30', for an additional 3900 square feet, for a total of 20,562.5 square feet, which is 0.47 of an acre. (An acre is 43,560 square feet.) The sand of the roadway and driveway pads will not pollute the waters of the state. The sand of the road will not increase biological oxygen demand or nutrients. During construction, turbidity could be increased if high waters are experienced and the area is not properly stabilized, but turbidity could be monitored and controlled. The materials of the roadway further will not depress the oxygen levels in Julington Creek. The project originally proposed that seed and fertilizer be used to stabilize the banks of the road, and fertilizer would contribute to nutrients in the waters of the state, but Petitioners at the hearing gave reasonable assurances that seeding could be accomplished without fertilizer by using burlap and seed. The roadway itself will also not generate unlawful bacteria that could make its way to the waters of the state. The road will disturb the biological integrity of the organisms living in the soil beneath the roadway and driveway pads. The proposed project will permanently destroy 0.47 of an acre of the wetlands associated with Julington Creek. These and adjacent wetlands function as a natural kidney, cleansing the water of pollutants, in a continuous cycle. Wetlands contain soil and living organisms that, in balance, filter out pollutants, assimilate nutrients, and provide habitat for organisms. The silica road proposed by Petitioners will not perform these functions. Petitioners presented no evidence to rebut these findings, except to argue that the loss of wetland was insignificant and to argue that wetlands, at times, will also cause pollution. Petitioners gave no other reasonable assurances that the long-term effects of the road would not degrade water quality. The exchange of water, which results in the natural filtration and cleansing described above, occurs from waters coming from the uplands, from the wetlands, and from open waters such as Julington Creek. Julington Creek is tidal, and the testimony indicated that with significant regularity the wetlands associated with this proposed road were inundated with water. In a natural state, wetlands will experience dry conditions. During such periods, which are natural and cyclical, water will drain from the swamp and there can be a natural depression of oxygen levels in the open waters, increasing suspended solids. While these facts are true, Petitioners did not present evidence to show with particularity whether this had occurred or to what extent this had occurred with respect to the wetland area where the road is to be located, and did not show with particularity how removal of these wetlands by constructing this road would prevent natural degradation of the water in the future. Moreover, whether or not the natural filtration system of a wetland becomes less efficient due to natural cycles is not relevant in this case. Petitioners here do not propose to replace nature's cyclical inefficiencies with a better, manmade system, but propose, rather, to remove a significant portion of the only filter now operating, without replacement. The entire Julington Creek drainage basis is 30 or 40 square miles. The relevance of this figure was not established, since from the map which is Respondent's Exhibit 9 it is clear that the drainage basis of Julington Creek, with its associated wetlands, serves to filter pollutants from an equally large, if not larger, upland area. Petitioners argue that removal of 0.47 acre is insignificant if the entire area is 30 to 40 square miles, but from Respondent's Exhibit 9 it is evident that much of that other part of the wetland is not available to function as a filter for the waters currently filtered by the wetlands in the vicinity of the pro- posed roadway. The proposed road is near the conjunction of Julington and Durbin Creeks, and near the place where the open waters enlarge. The wetlands of the proposed road would be expected to serve the filtration function for those open waters and the uplands immediately above the wetlands, and not some other part of the 30 or 40 square miles. The land at the headwaters of Julington Creek is now being developed for multifamily housing and industrial uses, and the whole watershed of the Creek is being developed. The waters of Julington Creek have already been stressed in a general way by this development. Petitioners Vargas, Mrs. M. E McCullough, Dr. Robert L. Barksdale, and Mr. Steve Scecere, all testified at the hearing, and own, respectively, lots 22, 21, 19, and 24. All testified that they intend to build houses on their lots, but have not yet applied for permits. Since 1977, the Department of Environmental Regulation has consistently taken the position that deposit of fill on the wetlands which are the landward extent of Julington Creek will degrade the quality of the waters of the state, and have consistently acted to prohibit such fill. See Respondent's Exhibits 8, 10, and 11. The Department further has consistently told prospective buyers of this position with regard to these wetlands. Of particular relevance to this application, in 1977 the Respondent denied a fill permit to place 2,500 cubic yards of fill on lot 20 as depicted on Respondent's Exhibit 1. This lot is now owned by Debra H. Prevatt, and is contiguous to lot 19 owned by Petitioner, Dr. Robert L. Barksdale. The fill proposed in 1977 would have eliminated 20,000 square feet of wetlands, approximately the same as the proposed project in this case. Petitioner proposes the finding that the Corps of Engineers stands ready to issue their permit pending resolution of their application by the Department of Environmental Regulation. This finding is based solely upon the testimony of Mr. Vargas as to the intentions of unnamed officials in the Corps of Engineers, and as such, is hearsay. Therefore, absent direct evidence on the point, the proposed finding is rejected. Petitioners propose a finding that the permitting process progressed "without negative feedback" until objections were raised by adjacent property owners. This finding was not supported by any evidence other than the opinion of Mr. Vargas, and will be rejected as unsupported and possibly hearsay. It is also rejected as irrelevant since there was no evidence that the Respondent denied the permit for reasons other than those provided by statute and regulation. The Petitioners have paid taxes on their property, are of the opinion that they cannot build on their land if the permit is denied, and would be willing to sell their land to the state for a reasonable amount if the permit is denied. Respondent has not placed a monetary value on the wetlands which Petitioners propose to fill. If Petitioners proposed to build the road on pilings, elevated above the wetlands so that most of the wetlands would continue to function, the application would be approved.
Recommendation It is therefore recommended that the application for a dredge and fill permit to construct the road and driveway pads as proposed by Petitioners be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 1st day of March, 1985. COPIES FURNISHED: Clark Vargas, P.E. President C. Vargas & Associates 8596 Arlington Expressway Jacksonville, Florida 32211 M. E McCullough 9139 Warwickshire Jacksonville, Florida 32217 Steve Scecere 9058 Kentism Court Jacksonville, Florida 32217 Dr. Robert L. Barksdale 2423 Acadie Jacksonville, Florida 32205 Ross Burnaman, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinke, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant. Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations. The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body. The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina. The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters. Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER. Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay. The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina. Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise. In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing. Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide. If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and 14 days assuming a high tide. Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water. A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model. The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay. While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established. There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands. The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves. Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences. While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1. The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site- specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities. While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat. Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met. Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife. Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe. Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves. In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State. Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes. There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems. If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project. In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated. Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code. The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements. The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows: "(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters. Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel." This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting. It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition. Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit. As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979. Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity. The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable. The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted. An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are: 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. In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources. There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project. The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence. In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations. As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED. Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569 The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner Leisey: 6, last two sentences Rejected; not supported by competent, substantial evidence. 7, last two sentences Rejected; not supported by competent, substantial evidence. 8, last sentence Rejected; contrary to the greater weight of the evidence. 9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved." 11, last sentence Rejected; contrary to the greater weight of the evidence. 14, last sentence Rejected; not supported by competent, substantial evidence. 18, last sentence Rejected; not supported by the greater weight of the evidence. 19, last two sentences Rejected; contrary to the greater weight of the evidence. 20, last sentence Rejected; not supported by competent, substantial evidence. 21, last three sentences Rejected; not supported by competent, substantial evidence as to "existing ambient water quality. 23, last three sentences Rejected; not established by competent, substantial evidence. 24, last sentence Rejected; not established by competent, substantial evidence. 25, last sentence Rejected; contrary to the greater weight of the evidence. 28, last sentence Rejected; not established by competent, substantial evidence. 30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes. 35, last sentence Rejected; not established by competent, substantial evidence. 43, third sentence Rejected; not established by competent, substantial evidence. Respondent, DER: 2 Rejected; irrelevant and immaterial. 16, first sentence Rejected as to the words "will occur," as opposed to "could occur." 70 Rejected; insufficient evidence was adduced to render a finding regarding the precise OFW boundaries. 76 Rejected; irrelevant and immaterial. 85 Rejected as to the specifics of the permitability of other sites, as not established by competent, substantial evidence. 94, last sentence Rejected as speculative. 96 Rejected; not supported by competent, substantial evidence. 99 Rejected, irrelevant and immaterial. 102 Rejected, as speculative. 113 Rejected, not supported by competent, substantial evidence. Intervenor Manasota-88: This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order. COPIES FURNISHED: Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209 St. Petersburg, Florida 33702 M. Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of 5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner. DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed findings None submitted. Respondent's Proposed findings 1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, legal conclusion. 10.-11. Accepted. Rejected, unnecessary. Accepted. Rejected, unnecessary. 15.-22. Accepted in substance. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Foster F. Burgess, Route 1 Box 97-C4 Freeport, Florida 32439 Donna M. LaPlante Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue The issues to be determined in these consolidated cases are whether existing Florida Administrative Code Rule 62-302.530(47)(b) of the Department of Environmental Protection ("Department"), referred to as the "narrative nutrient rule," is an invalid exercise of delegated legislative authority, and whether certain proposed rules of the Department, which amend Florida Administrative Code Chapters 62-302, entitled “Surface Water Quality Standards” and 62-303, entitled “Identification of Impaired Surface Waters,” are invalid exercises of delegated legislative authority.
Findings Of Fact The Parties Petitioner, Florida Wildlife Federation ("FWF"), is a Florida not-for-profit corporation with its headquarters in Tallahassee, Florida. FWF has approximately 14,000 members throughout the State. Its mission includes the preservation, management, and improvement of Florida’s water resources and its fish and wildlife habitat. Petitioner Sierra Club, Inc., is a non-profit public benefit corporation with its principal place of business in San Francisco, California. It has approximately 30,000 members living in Florida. Sierra Club’s mission is to explore, enjoy, and protect wilderness and to educate the public to protect and restore the quality of the environment. Petitioner, The Conservancy of Southwest Florida, Inc., is a Florida non-profit corporation with its primary place of business in Naples, Florida. It has approximately 6,000 members residing in Florida. The Conservancy is devoted to protecting the land, water, and wildlife of Southwest Florida. Petitioner, Environmental Confederation of Southwest Florida (“ECOSWF”), is a Florida non-profit corporation with its primary place of business in Sarasota, Florida. ECOSWF has approximately 50 members consisting of other organizations and individuals living in Southwest Florida. ECOSWF focuses its efforts on protecting the environment of Southwest Florida, including Charlotte, Collier, DeSoto, Lee, Manatee, and Sarasota Counties. Petitioner, St. Johns Riverkeeper, Inc., is a Florida non-profit corporation with its primary place of business in Jacksonville, Florida. St. Johns Riverkeeper has over 1,000 members who use and enjoy the waters of the St. Johns River watershed for boating, fishing, and observing birds and other wildlife. A substantial number of the members of each of the Petitioners use and enjoy water bodies throughout the state for a variety of purposes, including wading, walking, swimming, canoeing, sailing, sport boating, wildlife observation, photography, personal and commercial research, sport and commercial fishing, and collecting aquatic life for personal and commercial consumption. The Department is the state agency authorized under section 403.061(10) and (11), Florida Statutes, to establish water quality standards. The Department is also authorized under section 403.067(3) to adopt assessment methodologies for determining whether water quality criteria are being attained in a particular waterbody. Intervenors, Florida Electric Power Coordinating Group, Inc., Environmental Committee, Florida League of Cities, Florida Pulp & Paper Association, Environmental Affairs, Inc.. Florida Fruit and Vegetable Association, Inc., Florida Stormwater Association, Inc., and Florida Sugar Cane League, Inc., are organizations with a substantial number of members who are subject to the challenged rules. Intervenors, Clay County Utility Authority, Destin Water Users, Inc., South Walton County Utility Co., and Emerald Coast Utilities serve water and/or wastewater customers. They operate wastewater treatment plants that are subject to the challenged rules. Intervenor, James Sartori, is a farmer whose operations in Brevard and Highlands Counties are subject to the challenged rules. Intervenor, SFWMD, is a regional governmental agency that oversees water resources, including water quality regulation, in the southern half of the state. The existing nutrient rule is incorporated by reference into the District’s Environmental Resource Permitting Program and the proposed rules would be incorporated by reference as well. The parties stipulated in their prehearing stipulation to additional facts regarding each party's substantial interests in the challenged rules. Background Florida’s surface water quality standards have four components: designated uses; water quality criteria; an antidegradation policy; and moderating provisions. Fla. Admin. Code R. 62-302.200(31). Surface waters are assigned one of six designated use classifications: Class I: potable water supplies Class II: shellfish propagation or harvesting Class III: fish consumption, recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife Class III-Limited: fish consumption, recreation or limited recreation, and/or propagation and maintenance of a limited population of fish and wildlife Class IV: agricultural water supplies Class V: navigation, utility and industrial use The "default" designation for surface waters is Class III. Unless otherwise specified by rule, all waterbodies are Class III waters. The existing and proposed nutrient criteria apply to Class I, II, and III surface waters. A definition for "nutrient" is included in proposed rule 62-302.200(22) and is not challenged by Petitioners: "Nutrient" shall mean total nitrogen (TN), total phosphorus (TP), or their organic or inorganic forms. Phosphorus and nitrogen are among the most common elements in the natural environment. All forms of life must use nitrogen and phosphorus to build their cells and to carry out basic metabolic processes. Florida's natural features, including flat topography, wetlands, warm and humid climate, nutrient-rich soils, and tropical storms and hurricanes are conducive to nutrient over- enrichment. Under natural conditions, episodic nutrient loading is not a problem. Short-term excesses are usually assimilated in the ecosystem by aquatic food webs without causing an imbalance in natural populations of aquatic flora and fauna. Human-influenced (anthropogenic) nutrient loading is the cause of long-term imbalances in aquatic flora and fauna. The principal anthropogenic sources of nutrients are fertilizers, domestic wastewater, and livestock waste. The contribution of nutrients to Florida's surface waters from anthropogenic sources has been increasing. Excess nutrient loading over long periods of time usually increases the number of macrophytes, macroalgae, and phytoplankton. Their excess growth can reduce light penetration and the amount of dissolved oxygen in the water column, which are fundamental to the health of other aquatic flora and fauna. A substantial increase in these organisms can lead to a decrease or loss of other species. Nutrient-sensitive species are reduced or eliminated. Nutrient-tolerant species dominate. These conditions represent the imbalance that is referred to throughout this Final Order. Once an imbalance occurs, it is difficult to restore the balance. In 1979, the Department described nutrient pollution as "one of the most severe water quality problems facing the State." Fla. Admin. Code R. 62-302.300(13). In the same year, the "narrative nutrient criterion" was adopted. It has not changed since 1979. It is now codified as rule 62- 302.530(47)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Similar narrative nutrient criteria have been adopted in other states. However, nutrient pollution in Florida and nationwide has worsened due primarily to steady increases in human population and development. In 1998, the United States Environmental Protection Agency ("EPA") expressed its expectation that all states would adopt numeric nutrient criteria by December 31, 2003. Although the Department spent millions of dollars studying the problem in Florida and trying to devise numeric criteria, another decade passed without the adoption of numeric criteria. In 2008, the Department reported to the EPA that 1,049 miles of streams, 349,248 acres of lakes, and 902 square miles of estuaries were impaired as a result of excess nutrients. Florida's springs were also showing increased nutrients. The Department reported a new concern regarding harmful algal blooms, which are blooms of such high concentration and/or areal extent that they adversely affect other aquatic flora and fauna. Toxic algae can be injurious to human health. Cyanobacteria can produce various kinds of toxins including hepatotoxins that affect the liver and can cause liver hemorrhaging, disease and death in wildlife and humans, renal toxins that affect the kidneys, dermatotoxins that cause skin problems such as lesions or blistering, and neurotoxins that interfere with nerve-impulse transmission causing spasms, convulsions, paralysis, and death. Together, these algal toxins are known as “cyanotoxins.” Red tide, a kind of dinoflagellate, can produce brevotoxins, which can cause respiratory distress when aerolized by wind and wave action. The Florida Department of Health and its associated County Health Departments periodically issue health alert warnings about toxic algal blooms. In January 2009, the EPA determined that numeric nutrient criteria are necessary for Florida to meet the requirements of the Clean Water Act. EPA determined that "Florida's narrative nutrient criterion alone is not sufficient to protect applicable designated uses, and that numeric nutrient criteria are necessary." On December 6, 2010, EPA published in the Federal Register proposed numeric nutrient criteria for Florida. EPA's 2009 determination that numeric criteria are necessary for Florida and its 2010 proposed numeric criteria were challenged in the U.S. District Court for the Northern District of Florida and consolidated in Fla. Wildlife Fed., Inc. v. U.S. EPA, WL 537529, *35 (N.D. Fla. 2012). On February 18, 2012, Judge Hinkle issued his decision upholding the EPA determination and EPA’s numeric nutrient criteria for lakes and springs. EPA's stream criteria and downstream protection values for unimpaired lakes were overturned. Id. The Narrative Nutrient Criterion The narrative criterion in rule 62-302.530(47)(b) is not being replaced by the proposed rules. It will remain in effect because the proposed rules are intended by the Department to be "numeric interpretations" of the narrative criterion. The narrative criterion is not in the usual form for Florida's water quality criteria. The vast majority of water quality criteria are stated as specific concentrations of chemical constituents that represent a good condition for the waterbody. If these concentrations are not exceeded, the waterbody is not polluted and its designated uses are protected. The narrative nutrient criterion, on the other hand, describes a bad condition that is prohibited. However, the narrative nutrient criterion is not the only narrative water quality criterion or the only criterion that describes a bad condition that is prohibited. For example, the so-called "free-from rule," rule 62-302.500, states that all surface waters shall be free from discharges of substances that create a nuisance or that are present in concentrations that are acutely toxic, carcinogenic, mutagenic, or teratogenic to human beings or to significant wildlife. Petitioners contend that the narrative nutrient criterion is arbitrary and capricious because it "illogically and irrationally attempts to protect . . . waters from adverse impacts of nutrient pollution with a criterion that is reactive rather [than] preventative." By "reactive" Petitioners mean that an imbalance in natural populations of aquatic flora and fauna must occur before the criterion is violated and the Department can or will react to do something about the violation, which Petitioners say is too late. On its face, there is nothing illogical or irrational about the narrative criterion. There is nothing about the plain and ordinary meanings of the words used in the rule that make the rule illogical or irrational. The narrative criterion expressly prohibits nutrient pollution, a prohibition which the Petitioners are all for. At its core, Petitioners' argument is that the narrative criterion does not work. Petitioners' argument seems to draw on common sense; if there has been widespread nutrient pollution in Florida waters, then the Department's water quality criterion for nutrients is not preventing pollution. However, proving that nutrient pollution has not been prevented is not the same thing as proving that the narrative criterion is the cause. Petitioners' evidence was not sufficient to demonstrate, for example, that in the absence of the narrative criterion, there would have been less nutrient pollution in Florida. The more persuasive evidence is that the narrative criterion has some beneficial effect in controlling nutrient pollution. The narrative criterion has been used, for example, to limit nutrient discharges in permits issued by the Department. Two important factors must be accounted for when considering the nutrient pollution problems in Florida. First, much of the human-induced nutrient loading into surface waters is not regulated by the Department. Nutrient contributions from most agricultural operations and from septic tanks, for example, are not regulated by the Department, but by other governmental entities. These and other human activities that contribute nutrients to surface waters do not involve any required analysis of how the nutrient loading may affect the balance of natural populations of aquatic flora and fauna in the receiving waters. They do not even involve notice to the Department. There is more support in the record for the proposition that nutrient pollution in Florida is caused by a fragmented and uncoordinated regulatory system than for Petitioners' proposition that nutrient pollution is due to the Department's narrative criterion. Petitioners did not show that numeric criteria, alone, can prevent nutrient pollution in Florida. Second, the effect of nutrients on aquatic flora and fauna is an extremely complicated subject. Nutrients occur naturally in surface waters and their concentrations vary naturally. The effects of nutrients on flora and fauna are dependent on many physical, chemical, and biological variables and these effects differ greatly between types of waterbodies (for example, streams and lakes or fresh and marine waters) as well as geographically. Algal blooms can occur naturally, independent of any anthropogenic influence. Sporadic algal blooms are part of the natural flora of an aquatic ecosystem. Algal bloom dynamics are complex and are not completely understood. Whether a bloom will produce cyanotoxins in concentrations that could be harmful to public health cannot be predicted. Most water quality criteria are based on toxicity, which can be identified by a dose-response test. Most criteria are set at concentrations below the levels at which adverse effects are observed in test organisms. That approach cannot be used for nutrients because TN and TP can cause an imbalance in aquatic ecosystems at concentrations well below their toxic levels. Although many general concepts associated with the effects of nutrients in surface waters are understood in the scientific community, there are important aspects that are still a matter of conjecture and debate. Pristine or severely degraded conditions in a particular waterbody associated with nutrient concentrations can be identified and described with relative ease. However, the current science does not provide a widely-applicable tipping point beyond which the natural balance of flora and fauna is upset or jeopardized. Over the last several years, considerable scientific research, analysis, and debate have been dedicated to the purpose of designing nutrient criteria to better protect designated uses. However, the overarching goal of preventing an imbalance in natural populations of aquatic flora and fauna has not been abandoned. Petitioners' witnesses said nothing to suggest that it is the wrong goal. The narrative criterion expresses this universally accepted goal. Petitioners failed to prove that the narrative nutrient criterion is not designed to control and prohibit nutrient pollution. The record shows that there are more effective criteria that the Department can use to assess nutrient impacts and protect designated uses, such as those criteria in the proposed rules that are also challenged by Petitioners. Because the narrative criterion will be "interpreted" with numeric criteria for many waterbodies, Petitioners' challenge is more precisely a question of whether the narrative nutrient criterion is an invalid exercise of delegated legislative authority in the context of its application to intermittent streams, wetlands, and other surface waters for which only the narrative criterion will be applicable. Due to insufficient data and scientific knowledge, the Department is not yet able to adopt numeric criteria for intermittent streams, wetlands, and the other surface waters to which only the narrative criterion will apply. Petitioners did not prove that any of the surface waters excluded from the proposed numeric criteria are sources of drinking water or that there are human health hazards associated with toxic algae in these surface waters. Petitioners failed to prove by a preponderance of the evidence that the narrative criterion contravenes the law implemented or is arbitrary or capricious. Chapter 62-302, "Surface Water Quality Standards" General The proposed rules are lengthy and need not be reproduced in this Final Order. They are contained in Petitioners' Exhibit 712.1/ The proposed numeric criteria were developed in a deliberative process which involved considerable study over many years and input from numerous scientists. The record details these efforts, but it was not a matter of dispute, so it is not detailed here. It suffices to say that the Department's rulemaking effort was unusual in terms of time, cost, numbers of scientists involved, and the comprehensiveness of the investigations that were undertaken and the data that were reviewed. The Department's position on disputed factual issues was supported by expert testimony, reports, graphs, and data summaries generated by investigations that involved many scientists focused on the specific objective of developing nutrient criteria. In contrast, Petitioners' position was usually supported only by expert opinions that were based on data collected for different purposes and not presented or made a part of the record. 2. Rule 62-300.200, "Definitions" Petitioners object to the proposed definition of "stream" in rule 62-300.200(36) because it excludes "non- perennial water segments." Petitioners referred to these waters as "intermittent streams." Petitioners contend that the exclusion of intermittent streams contravenes section 403.061(11), Florida Statutes, which requires the Department to establish water quality standards for all waters. Section 403.061(11) authorizes the Department to establish water quality standards "for the state as a whole or for any part of the state," but Petitioners argue that this language does not allow the Department to exclude from protection certain "types" of waters, such as intermittent streams. The proposed definition of stream is "for purposes of interpreting the narrative nutrient criterion" through use of the numeric criteria in rule 62-302.531(2)(c). The exclusion of intermittent streams from the definition of "stream" means that the numeric criteria will not apply to intermittent streams, but the narrative nutrient criterion remains applicable to them. The authority to establish water quality standards for "any part of" the state is reasonably interpreted by the Department to allow it to establish water quality standards for specific waterbodies because each waterbody is located in a different part of the state. It is also reasonable for the Department to establish different water quality criteria for waterbodies that have different characteristics. Although Petitioners emphasize what is similar about perennial and non- perennial streams, there are also differences between them related to nutrient levels and biological responses. It is not irrational for the Department to apply its new numeric criteria only to those streams for which it has sufficient data and understanding with respect to the response of flora and fauna to nutrients. Petitioners did not show that there are numeric nutrient criteria that would work well for all intermittent streams. Petitioners object to parts of the definitions for "Lake Vegetation Index," "Nutrient Threshold," and "Stream Condition Index," but these objections were not raised in their petitions. Petitioners did not show how these definitions somehow fail to accurately describe the terms. 3. Rule 62-302.531, "Numeric Interpretations of Narrative Nutrient Criteria" The numeric criteria form what the Department calls a hierarchy of interpretations of the narrative criterion. Hierarchy 1 interpretations are the Total Maximum Daily Loads (“TMDLs”), site-specific alternative criteria (“SSAC”), water quality-based effluent limits (“WQBEL”), and other numeric water quality criteria for nutrients that the Department has already established for specific waterbodies. See (proposed) Fla. Admin Code R. 62-302.531(2)(a). The Department is proposing new Hierarchy 1 interpretations for six Florida estuaries in proposed rule 62-302.532. Each estuary would have its own nutrient criteria. Hierarchy 2 interpretations are numeric criteria that are proposed for a category of waters based on the Department's determination that a quantifiable cause and effect relationship exists between nutrient levels and biological responses in such waters. Hierarchy 2 criteria are proposed in rule 62-302.531(2)(b)1. and 2. for lakes and springs. Hierarchy 3 interpretations are proposed for streams because the Department was unable to find statistically significant cause-and-effect relationships that can be applied generally to streams. The criteria in proposed rule 62-302.531(2)(c) establish a process for evaluating individual streams on a case-by-case basis, using numeric thresholds and biological data to determine whether they are meeting the narrative nutrient criterion. For categories of waters that the Department has not yet been able to devise a reliable numeric criterion or system of evaluation, no new criteria are being proposed. The narrative nutrient criterion will continue to apply to these categories, which include wetlands, certain estuaries, intermittent streams, and streams within the South Florida Watershed Region. Lakes The Department’s numeric nutrient criteria for lakes are based on chlorophyll a levels. Chlorophyll a is an indicator of algal biomass and is correlated with nutrient concentrations. The proposed criteria differentiate clear lakes, colored lakes with low alkalinity, and colored lakes with high alkalinity. The Department proposes a standard of 20 micrograms per liter (µg/L) of chlorophyll a in colored lakes and in clear lakes with high alkalinity. For clear lakes with low alkalinity, the numeric criterion is 6 µg/L chlorophyll a. See (proposed) Fla. Admin. Code R. 62-302.531(2)(b)1. The Department established a range of TN and TP concentrations that corresponded to the chlorophyll a levels. For example, 20 µg/L chlorophyll a for colored lakes corresponds to a TN range of 1.27 milligrams per liter (mg/L) to 2.23 mg/L. Id. If the chlorophyll a concentration in a lake does not exceed the chlorophyll a value in the rule, and the TN and TP concentrations in the lake do not exceed the maximum TN and TP values in the rule, the lake is deemed be achieving a balance in natural populations of aquatic flora and fauna. If the chlorophyll a concentration in a lake exceeds the value in the rule, but the TN and TP concentrations in the lake do not exceed the minimum TN and TP values in the rule, the lake is still deemed to be healthy. If the chlorophyll a concentration in a lake exceeds the value in the rule and the TN or TP concentrations in the lake also exceed the minimum TN or TP values in the rule, then the lake nutrient criteria (and the narrative nutrient criterion) are not achieved. These values in the rule for chlorophyll a, TN, and TP refer to the annual geometric mean of concentrations from at least four water samples. Compliance with the criteria is achieved by having no more than one exceedance in a three-year period. These same sampling and compliance requirements appear in other parts of the proposed rules and Petitioners' objections to these requirements are addressed later under a separate heading. Springs As with lakes, the Department found a strong correlation between nutrient levels and algal growth in springs. Proposed rule 62-302.531(2)(b)2. establishes the numeric interpretation of the narrative nutrient criteria for Florida springs as 0.35 mg/L of nitrate-nitrite (annual geometric mean). Streams Because no consistent cause and effect relationship was found between nutrients and biological responses in streams, the Department developed "threshold values" for TN and TP. These values are used in the evaluation of a stream. They are not used as values that cannot be exceeded. The threshold nutrient values are derived from data for “benchmark" streams that are minimally disturbed. The benchmark streams were grouped according to geographic regions because streams differ from region to region. For each region, threshold TP and TN values were derived. However, for streams in the South Florida Watershed Region, the data were inadequate to develop threshold nutrient values. The narrative criterion, alone, will apply to those streams. The nutrient criteria for streams are achieved if chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates no imbalances in flora and fauna, and either the stream has a high Stream Condition Index (SCI) score, which is a measure of biological health based on benthic macroinvertebrates, or the nutrient thresholds in the rule are achieved. See (proposed) Fla. Admin Code R. 62-302.531(2)(c). A stream with imbalanced flora and fauna would fail to achieve the streams nutrient criteria even if TN and TP concentrations are below the TN and TP benchmark thresholds. On the other hand, if nutrient concentrations exceed the TN and TP thresholds, a stream could still achieve the streams criteria if natural populations of flora and fauna are well-balanced, as shown by the floral evaluation and SCI score. These rule outcomes reflect the Department's determination that nutrient levels in streams, will not always correspond to floral and faunal health. Petitioners object to the use of the SCI because they say it is primarily a measure of biological responses to human disturbance and not specifically to nutrient pollution. However, the SCI provides information about faunal health and, therefore, has a direct bearing on whether there is an imbalance of natural populations of aquatic fauna. Petitioners object to the proposed use of the SCI because they say it is not a good test for the presence of algal toxins because not all macroinvertebrates are sensitive to algal toxins. However, the SCI is only one part of the streams criteria. The evidence shows that the streams criteria, taken as a whole, are reasonably designed to evaluate the presence and significance of algae. Petitioners also object to the streams criteria because the floral component of the criteria requires an imbalance before the stream will be deemed to not achieve the criteria, which Petitioners contend is not protective. The argument presumes that there exists a numeric criterion that, if achieved, would always indicate a healthy ecosystem, and if exceeded, would always indicate an unhealthy ecosystem. Petitioners failed to prove the existence of such a criterion. In determining the validity of EPA's proposed nutrient criteria for Florida's streams, Judge Hinkle stated that the "right target" for the numeric criteria was a value that would create an imbalance in flora or fauna. Summary The Department proved by a preponderance of the evidence that the proposed numeric criteria for lakes, springs, and streams are reasonably designed to prevent pollution and protect their designated uses. Sample Size and Exceedance Frequency The Department established minimum data requirements in the proposed rules for the calculation of annual geometric mean values for TP, TN, and chlorophyll a. The proposed rules require that the geometric mean be calculated from at least four water samples in a calendar year, with at least one sample collected between May 1 and September 30 and at least one sample taken during the other months of the calendar year. The criteria are achieved if there is no more than one exceedance of the geometric mean in a three-year period. Petitioners contend that these proposed sampling and compliance criteria are arbitrary and capricious and contravene law because more samples are needed to generate a reliable geometric mean and more samples should be required during the period May through September because that is when algal blooms occur most frequently. Petitioners believe that prevention of algal blooms should be the primary objective of the numeric criteria. Petitioners' objections reflect a misunderstanding about the source of the data. For example, Petitioners contend in their proposed final order that "[a] rule which requires that only one chlorophyll a sample be collected during the algae season is scientifically irrational," but there is no such requirement in the proposed rules. Petitioners object to the "required sampling regime," but there is no required sampling regime. The proposed rules do not deal with sample collection. Sampling requirements are normally associated with permits and the proposed rules do not address permits or permit requirements for nutrient discharges. The proposed rules do not limit the Department's authority to require permittees who have nutrient discharges to collect more than four samples annually and more than one sample during the period May through September. Nor do the proposed rules limit the number of water samples above four that may be used to calculate the annual geometric mean. If more than four data points exist, then more than four data points will be used to calculate the geometric mean. If more than one sample is available from the period May through September, then more than one sample from this period will be used in the calculation of the geometric mean (as long as there are at least three samples available from other months). The proposed rules do not tell anyone to collect fewer samples than are being collected currently. The proposed rules reflect the fundamental fact that data are limited. The majority of water quality sampling is performed voluntarily by entities other than the Department, primarily by local and regional governments. Most waterbodies are not sampled on a monthly basis. There are limited data available to determine achievement of any nutrient criterion. The proposed rules simply specify that at least four water samples must be used for this purpose, one of which must have been taken in the period May through September. Petitioners' expert witness, Dr. Burkholder, offered a hypothetical example of a lake with four chlorophyll a samples that would generate a geometric mean indicating that the lake is balanced even though one of the values is high enough to indicate the presence of an algal bloom and a potential imbalance in aquatic flora or fauna. If the proposed rules required the geometric mean to be calculated with at least 5 nutrient samples, then this hypothetical lake would have no geometric mean to calculate or consider. If the proposed rules required 10 or 12 data points to calculate the geometric mean and three or four samples from the period May through September, as recommended by Dr. Burkholder, many waterbodies could not be assessed. Dr. Burkholder suggested that it is better to have no information for a waterbody than to have limited information that may erroneously indicate a waterbody is healthy when it is actually unhealthy. Dr. Burkholder did not quantify the probability of this "false negative." The Department's statistical analysis showed that it is insignificant. The Department chose the minimum sample size that its statistical analysis showed would be reasonable for the intended purpose so that it could assess more waterbodies. That choice is as much a matter of policy as of science. Algal blooms, even toxic algal blooms, occur naturally in the absence of human influence. Therefore, it is reasonable for the Department to avoid equating an algal bloom to an imbalance in natural populations of aquatic flora or fauna. The allowance for one exceedance in a three-year period accounts for natural fluctuations in nutrient levels. The Department's statistical analysis showed that, in order to meet the 1-in-3-year exceedance criterion, long-term average concentrations of nutrients must be well below the numeric limits and thresholds. If the proposed criteria are being attained, the likelihood of a non-natural algal bloom should be small. The Department proved by a preponderance of the evidence that the sample size and compliance criteria used in the proposed rules are reasonably designed to prevent pollution and protect designated uses. 62-302.532, "Estuary-Specific Numeric Interpretations of the Narrative Nutrient Criteria" Due to the wide variation in Florida's estuaries, the Department developed estuary-specific numeric criteria for them. The estuaries are further divided into sub-basins. Petitioners challenge the criteria developed for four of the estuaries: Biscayne Bay, Florida Bay, Florida Keys, and Tidal Cocohatchee River/Ten Thousand Islands. The Department worked with the National Estuary Programs, the Marine Technical Advisory Committee, the EPA Science Advisory Board, and local scientists using a "weight-of- evidence" approach to assess the biological health of the four estuaries and develop numeric criteria. Special consideration was given to whether human-induced nutrient loading was the cause of any adverse condition or loss of ecosystem function. The health of seagrasses in the estuaries was important in the assessment of nutrient conditions because excess nutrients cause high chlorophyll a concentrations, which reduce the sunlight seagrass needs to survive and thrive. Seagrasses provide critical habitat for a diverse community of flora and fauna. The Department determined that the four estuaries were either biologically healthy or that any biological problems were caused by factors other than excess nutrients. Therefore, the Department's approach was to establish nutrient criteria for TN, TP, and chlorophyll a for each estuary that would maintain existing healthy conditions. The Department used data collected from a monitoring network established by Florida International University. Dr. Lapointe objected to the Department's approach because red tide blooms have occurred in Florida estuaries, which he believes is an indication that existing conditions include excess nutrients. However, the more persuasive evidence is that red tide blooms are not a reliable indicator of human- caused, excess nutrient loading and may indicate only a temporary imbalance in aquatic flora and fauna. The estuary criteria are based on geometric means calculated from at least four samples and compliance is achieved if there is no more than one exceedance in a three-year period. Petitioners' objections to the sample size and exceedance frequency have already been discussed. Biscayne Bay Biscayne Bay was determined to have a healthy ecosystem. It has the third largest coral reef in the world. The seagrass communities are healthy and are expanding. Nutrient and chlorophyll a concentrations are low. There have been no toxic algal blooms or red tide events. There are a number of conditions of concern in Biscayne Bay, but Department's analysis showed that the impairments are not caused by human-influenced nutrient enrichment. The decline in coral coverage, for example, is due primarily to high water temperature. Petitioners' experts do not agree that Biscayne Bay is healthy, but their opinions were given less weight than the opinions of Dr. Madden, a SWFMD biologist, who is more familiar with current conditions in the Bay. Florida Bay The Department determined Florida Bay has well- balanced and diverse populations of flora and fauna. Existing biological problems are not caused by excess nutrients. There have been no toxic blooms in Florida Bay, or red tide events. Seagrass communities in Florida Bay are healthy. Dr. Lapointe said there had been a substantial loss of seagrasses, but the loss occurred in the 1980’s and 1990’s. Seagrass coverage has been steadily increasing to the present. There has been some of loss of corals in Florida Bay. The Department attributes the loss to reduced salinity. Dr. Lapointe believes that the loss was caused by excess nutrients, but his evidence was not persuasive. Tidal Cocohatchee River/Ten Thousand Islands The Department determined that the Tidal Cocohatchee River/Ten Thousand Islands estuaries had healthy, well-balanced populations of flora and fauna during the baseline period. Nutrient and chlorophyll a levels are low. Dr. Lapointe testified that red drift algae blooms have occurred, which he attributes to excess nutrients, but he did not show how natural populations of aquatic flora and fauna were affected. Florida Keys The Department determined that the Florida Keys had a healthy, well-balanced population of flora and fauna during the baseline period. Nutrient and chlorophyll a concentrations are low. The seagrass beds are healthy and extensive. The decline in coral coverage in the Florida Keys is not caused by excess nutrients, but is due to other factors such as coral diseases and temperature. Coral coverage has been stable since 2009. There was considerable dispute about the levels of nutrients in the Keys and whether their sources are anthropogenic. Petitioners did not present the data to support the opinions expressed by their expert. Summary These four estuaries are extremely valuable resources that deserve special care to prevent them from being lost to pollution. It was unfortunate that the expert witnesses were so far apart in their characterization of the health of the estuaries and their opinions about whether they are adversely affected currently by excess nutrients. However, the Department's extensive investigations and proceedings to evaluate the condition of the estuaries and to develop numeric criteria for them took into account the point of view of some participants that the estuaries are suffering from excess nutrients. The Department proved by a preponderance of the evidence that the numeric criteria for these four estuaries are reasonably designed to prevent pollution and protect their designated uses. 6. Rule 62-302.800(3), Type III SSAC Site-specific alternative criteria (SSAC) are criteria that are demonstrated to be more appropriate for a waterbody than the state-wide water quality criteria. They are adopted by rule on a case-by-case basis. The existing rule provides for Type I and Type II SSAC. A Type I SSAC is adopted for a waterbody that does not meet a water quality criterion due to natural background conditions or man-induced conditions which cannot be controlled or abated. A Type II SSAC is one adopted when a waterbody does not meet a water quality criterion for other reasons. The proposed rules would establish a new Type III SSAC specifically for nutrients. In their petition, Petitioners object to the Type III SSAC for reasons that have already been discussed in the context of rule 62-302.351. The evidence presented by Petitioners was not sufficient to demonstrate that the Type III SSAC provisions contravene law implemented or are arbitrary or capricious. Chapter 62-303, "Identification of Impaired Surface Waters" The impaired waters rule was first promulgated by the Department in 2002 in response to requirements of section 303(d) of the Clean Water Act. See § 403.067, Fla. Stat. Section 403.067(3)(b) required the Department to adopt by rule a methodology for determining the waters that are impaired. Impaired waters are waters that do not meet applicable water quality standards due in whole or in part to point and non-point discharges of pollutants. Fla. Admin. Code R. 62.303.200(7). The existing rule contains a "planning list" of surface waters that are suspected of being impaired and a "verified list" of waters that have been confirmed as impaired. A waterbody can be placed on the verified list without first going on the planning list if the data are sufficient to confirm its impairment. For waterbodies on the verified list, the Department develops TMDLs based on a priority ranking system. See Fla. Admin. Code R. 62-303.500. A TMDL is defined in rule 62-303.200(24): "Total maximum daily load" (TMDL) for an impaired water body or water body segment shall mean the sum of individual waste load allocations for point sources and load allocations for nonpoint sources and natural background. Prior to determining individual waste load allocations and load allocations, the maximum amount of a pollutant that a water body or water body segment can assimilate from all sources without exceeding water quality standards must first be calculated. A TMDL shall include either an implicit or explicit margin of safety and a consideration of seasonal variations. The proposed rules would add a “study list” for waterbodies known to be impaired, but the cause of the impairment has not been determined. If the impairment is determined to be caused by a particular pollutant, then the waterbody is placed on the verified list and a TMDL would be developed. If the impairment is caused by something other than a pollutant, such as a physical or hydrologic alteration to the waterbody, then a TMDL would not be developed. See (proposed) Fla. Admin. Code R. 62-303.150. Waters on the planning list and study list are slated for additional investigation. The proposed rules would add a test for adverse trends. A stream, lake, or estuary would be placed on the planning list if there is a statistically significant increasing trend in the annual geometric means for TN, TP, or chlorophyll a. See (proposed) Fla. Admin Code R. 62-303.351(5), 62-303.352(3), 62-303.353(4). For springs, the trend test looks for increases in concentrations of nitrate-nitrite. See (proposed) Fla. Admin. Code R. 62-303.354(3). A more robust trend test analysis is required to place a waterbody on the study list. The purpose of the trend analyses is to attempt to prevent an imbalance in flora and fauna from occurring in the future. Petitioners object to the proposed changes to rule chapter 62-303 because it relies on the use of four water samples to calculate a geometric mean and the allowance for a 1- in-3-year exceedance of the various nutrient criteria. Those objections have already been discussed and are not repeated here. Petitioners claim that the proposed rules use "an arbitrary and capricious sequence of biological assessments which require irrationally stringent proof of impairment and nutrient pollution causation." Petitioners did not prove this claim. The biological assessments are reasonably designed to determine whether an imbalance exists. Proof of impairment by human-caused nutrient loading is necessary and the level of proof required to determine the cause of the pollution is reasonable. Petitioners assert that a waterbody will not make it to the verified list unless it exhibits an imbalance in flora or fauna, but that is consistent with the Clean Water Act and section 403.067. The failure to meet water quality standards is the basis for placement on the verified list and development of a TMDL. The Department proved by a preponderance of the evidence that the proposed rules amending rule chapter 62-303 are reasonably designed to identify, manage, and restore impaired waters. Summary The Department proved by a preponderance of the evidence that the challenged rules do not contravene the law implemented and are not arbitrary or capricious.
Findings Of Fact Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road. Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there. Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road. Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Mr. Edward B. Johnson, Jr., Esquire 410 Fleming Street Key West, Florida 33040 Mr. Louis F. Hubener, Esquire Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FRANCIS X. ATWATER, Petitioner, vs. CASE NO. 77-1409 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Petitioners are entitled to validation of an alleged determination by Respondent of the landward extent of its dredge and fill jurisdiction over a portion of Petitioners' Property?
Findings Of Fact Under former DER rules, those using the vegetative index adopted June 10, 1975, as amended March 11, 1981, DER's dredge and fill jurisdiction upland of the mean high water line depended exclusively on the landward extent of waters of the state, as evidenced by the dominance of certain species of plants that thrive under wet conditions. Only if these indicator species, in the aggregate, were not dominant along the edge of a water body would DER's jurisdiction end at the shoreline. In 1977, Petitioners Fabre and Jacobs acquired more than 43 acres of unimproved land on Garcon Point, fronting Blackwater Bay in Santa Rosa County. By the time of the hearing, their original development plans had changed, but Petitioners still held the property in the hope of subdividing part of it for resale. At Petitioners' request, somebody from the Pensacola office of the Department of Environmental Regulation (DER) inspected the site in the fall of 1979, probably Michael C. Applegate on October 3, 1979. Petitioners wanted to know what DER permits, if any, would be required in order for a road to be built on the property. In connection with their inquiry, they furnished DER a legal description of the parcel and an aerial photograph of the area. Whether DER also received a site plan at that time depicting the proposed road is not shown by the record. DER's pre-application file on the parcel has probably been destroyed. At least in the minds of some DER employees, there is a clear difference between advising whether a particular project falls within DER's permitting jurisdiction, based on a site visit; and making a jurisdictional determination, which may involved planting flags that are then surveyed or photographed from the air. Petitioner Fabre received a letter from Michael C. Applegate, at the time DER's dredge and fill supervisor in Pensacola, which stated: RE: Approximate 43.48 acre parcel located between State Road 191 and Blackwater Bay, Garcon, Section 14, Township I s, Range 28 w, Santa Rosa County, Florida Dear Mr. Fabre: The above referenced land parcel (legal description enclosed) was inspected by a member of this Department to determine the necessity of obtaining dredge and fill permits for future construction activities on the site. It is the opinion of the staff that since the site is dominated by upland vegetation (oaks, pines, etc.) and has no water bodies connecting to the adjacent B1ackwater Bay that dredge and fill permits will not be required for construction activities within the interior of the property; however, any construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay will require prior permit authorization from this Department in accordance with the provisions of Section 403.087, Florida Statutes, 253.123 and 253.124, F.S. and Section 17-4.28, Florida Administrative Code. Further, should your development of the property result in and [sic] increased stormwater discharge, a stormwater permit may also be required. Joint Exhibit No. 4 In the opinion of DER's expert witness, "along the shoreline" usually means to the edge of open water. In surveying, "shoreline" is a term of art meaning mean high water line. As a practical matter, mean high water line surveys are seldom undertaken because they are complex, expensive and time- consuming. Because Mr. Applegatets letter was undated, Mr. Fabre later asked for a dated reiteration, which DER furnished by copy of a memorandum to the file from DER's William H. Daughdri11, stating: SUBJECT: Review of Undated Correspondence to Frank Fabre [sic] (Baskerville Donovan Engineers) Regarding Proposed Construction on a 43.48 Acre Parcel of Property on Blackwater Bay. On June 23, 1980, I received a call from Mr. Prank Fabre, [sic] during which he requested clarification of a letter written by Mike Applegate in October, 1979. I advised Mr. Fabre that my recollection of the proposed project and subsequent letter was that the excavation was on the interior of the property and not subject to Department of Environmental Regulation's permitting jurisdiction. I cautioned Mr. Fabre [sic] to read the letter carefully and proceed accordingly. On June 24, 1980, I reviewed Mile's letter to Mr. Fabre [ sic] (copy) attached). Mike's letter indicated that no permit would be required for construction activities in the interior of the property; however, construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay would require a valid Department permit. I called Mr. Fabre and advised him of same. Finally, in reviewing Mr. Applegate's letter to Mr. Fabre, I discovered it to be undated. The photograph attached to the letter referenced a date of October 3, 1979. I assume that the letter to Mr. Fabre went out within a week of the inspection and would therefore be properly dated between October 5 and October 10, 1979. Joint Exhibit No. 3. Having received this memorandum, Petitioners filled out a form Army Corp of Engineers/DER joint application for activities in the waters of the State of Florida. They attached an aerial photograph on which a proposed road is shown, lying more than 200 feet inland; and a drawing representing a proposed community building elevated on piling, approximately 50 feet inland of the mean high water line. Joint Exhibit No. 5. On September 24, 1984, copies of the joint form application with attachments were mailed to DER, along with a cover letter stating, "As we discussed, an application fee is not included since D.E.R. does not have jurisdiction based on enclosed letters from Michael Applegate and William Draughdrill [sic]." Joint Exhibit No. 5. In response, W. Richard Fancher, DER's dredge and fill supervisor, wrote Petitioners, on October 9, 1984: I have reviewed your permit application for a fill road leading to Blackwater Bay, along with the accompanying jurisdictional determinations. However, the Department's dredge and fill jurisdiction has changed significantly since Mr. Applegate's and Mr. Daughdrill's determinations, specifically, since October 1, 1984. Unless you have had the old pre- October 1 jurisdiction verified by our Bureau of Permitting in Tallahassee ("grandfathered"), the Department must consider the project under the post-October 1 jurisdiction and permitting standards. Joint Exhibit No. 7 (emphasis supplied.) A DER "completeness summary" also dated October 9, 1984, was included indicating that Petitioners' application was incomplete for failure to pay the application fee, because, "approximate MHW's" had not been labeled, a claim at least partially belied by attachments to the application, and because certain water quality information allegedly had been omitted. Joint Exhibit No. 7. On October 15, 1984, DER received Petitioners' request for validation with supporting papers. Joint Exhibit No. 9.
