Findings Of Fact On or about May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and for a water quality certificate to allow petitioner to complete a planned residential community on and adjacent to Marco Island, Florida. The application encompasses approximately 17,000 acres of petitioner's property, and hundreds of thousands of dollars were expended by petitioner in preparing the application. On November 28, 1979, respondent issued a notice of "intent to deny" the permit application. Among the grounds for denial cited in the nine page "intent to deny" are that the petitioner ". . .has not provided the Department with affirmative reasonable assurance, as required by Subsection 17-4.28(3), Florida Administrative Code, that the immediate and the long-term impacts of this project will not violate State Water Quality Standards." Similar language concerning assurance of water quality standards appears throughout the "intent to deny," as does the Department's assertion of dredge and fill permitting jurisdiction over the proposed development areas. Specific subsections and paragraphs of regulatory rules concerning jurisdiction are not identified in the Department's notice of "intent to deny." The respondent's "intent to deny" is the subject of pending administrative proceedings between these same parties in Division of Administrative Hearings Case Nos. 79-2471 and 80-683. In those proceedings, the petitioner is contesting, inter alia, the Department's application of the rules under challenge herein. By affidavit, the respondent's Chief of the Bureau of Standard Permitting, testified as follows: "I am personally aware that dredge and fill activities often result in violations of water quality standards, result in adverse impacts to and create potentially harmful conditions for animal and plant life, result in the alteration of the chemical, physical and biological integrity of waters, and result in the emission of water contaminants."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to connect his canal to the Caloosahatchee River be DENIED. Respectfully submitted and entered this 22nd day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1976.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's personal view of the subject premises, the following relevant facts are found: In April or May of 1974, William M. Lyons, as president of Central Development Company, submitted an application for a permit to construct a 20 foot wide, 172 foot long concrete bridge across sovereign land connecting Parker Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot 20, Parker Haven, and Parker Island are owned by Central Development Company. The application contains specific plans for run-off control. In 1975, various studies were performed by representatives of different environmental agencies concerning the proposed project. Representatives from the respondent Department of Environmental Regulation concluded that the bridge should cause no significant direct degradation of or adverse effect upon the water quality of King's Bay. The Director of the Division of Environmental Permitting therefore recommended the issuance of a permit and water quality certification following public notice of the project. In February of 1975, the Chief of Survey and Management of the Department of Natural Resources conducted a biological and hydrographic assessment and found that "the proposed bridge construction would eliminate a limited area of vegetated bottoms but would not, in itself, significantly affect aquatic biological resources," and that "it is improbable that the proposed bridge construction . . . would have significantly adverse hydrographic effects." The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The petitioners herein are citizens and property owners in the area and have requested a hearing on the permit application. The Department of Environmental Regulation forwarded the petition to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearing. Upon the agreement of all parties, the hearing was consolidated with other cases involving permits for projects in the King's Bay area of Crystal River. The prime issue upon which testimony was adduced at the hearing was the effect of the proposed bridge upon navigation. The waters of King's Bay are affected by the ebb and flow of the tide. The bridge is to be approximately four and one-half feet above the mean high water level. The pass between Parker Island and the mainland Lot 20 is approximately 250 feet wide and is relatively shallow, ranging from a low of one foot to a high of approximately four and one- half feet deep, depending upon the tide. Net fishing and gigging in that area are prohibited. Power boats, air boats and small sailboats presently utilize the pass, but large sailboats would not prudently use this pass for safety reasons. Small power boats with windshields and/or covered tops would probably not be able to use the pass during high tide if the proposed bridge at a height of four and one-half feet is constructed. A mean high water survey, per se, was not conducted by or on behalf of the applicant. Rather, the applicant relied upon a bulkhead map which establishes a bulkhead line around Parker Island (Exhibit 9). This document describes mean high water as +1.2 elevation and the metes and bounds description of the bulkhead line is followed by the words "all being along the mean high water line." The King's Bay area and the springs located therein provide a winter home for manatee, an endangered species. During high tides, manatees have occasionally been observed in the pass between Parker Island and Lot 20 on the mainland. While further development and degradation of the area could affect the manatee population, the placement of the bridge itself would not affect the navigation of the manatee travelling in that area, though some would balk or be hesitant around the bridge. One of the greatest hazards to the manatee is injury or even fatality from boat propellers and collisions with fast moving power boats. A boat travelling at five miles per hour should present no problem to the manatee. Several residents owning waterfront lots on King's Bay testified that their view of the open water would be obstructed by the existence of the proposed bridge. The purpose of constructing the bridge is obviously to provide a means of access from the mainland to Parker Island. Parker Island is about five and one-half acres in size and is owned by Central Development Company. Preliminary land use plans have been developed for an environmentally oriented low density subdivision on Parker Island. The conceptual plans include the sale of eleven lots, one-third acre each, for residential purposes. Each lot owner would only be permitted to develop 5,000 square feet of the lot, with the remainder of the lot to be retained in an undisturbed state. The preliminary plans call for underground utilities, no seawalls and a centralized dock. It must be emphasized that these are preliminary or conceptual plans for development of the Island, and Central is in no way bound by said plans. On or about April 5, 1977, the Board of County Commissioners of Citrus County passed a resolution declaring that the area known as King's Bay and the islands located therein was an area of critical habitat, and that any man-made changes in the area be subject to public hearings and comply with all Citrus County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned R-1AA which permits single family dwellings, municipally owned or operated parks and playgrounds, golf courses, certain temporary signs and certain conditioned accessory uses. Central Development Company has not appeared before the zoning board to seek a zoning change or exception for Lot 20. Central Development Company has submitted to the Department of Natural Resources an application for an easement for its bridge construction. This is the subject matter of Case No. 77-960, for which a separate recommended order is being entered.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Department of Environmental Regulation issue to Central Development Corporation a permit to construct a concrete bridge between Lot 20, Parkers Haven, and Parker Island subject to the following conditions: The height of the structure above mean high water level be increased from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and Receipt by the applicant and exhibition to the Department of Environmental Regulation of the required easement or other form of consent from the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use of sovereignty lands, as required by Florida Statutes 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya M. Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida
The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
The Issue The issue for determination is whether Respondent Leon County School Board should be issued a dredge and fill permit to excavate and backfill in connection with the installation of sewage collection system pipes beneath the Alford Arm of Lake Lafayette in Leon County.
Findings Of Fact On April 13, 1989, the Board submitted a permit application to DER for the dredge and fill permit which forms the basis for this proceeding. The project represented in the dredge and fill application consisted of installation of two sewage collection system pipes beneath the Alford Arm of Lake Lafayette. Installation would be accomplished by excavating and backfilling two trenches, each approximately 50 feet long by four feet wide by two feet deep. The pipes to be installed in the trenches adjacent to Buck Lake Road are one 15-inch gravity main and one 14-inch force main. A total of 15 cubic yards of soil was proposed for excavation and replacement. The project area consisted of less than 100 square feet. The Alford Arm in the project's vicinity is a canal dredged in the 1920's and 1930's. Neither the Alford Arm nor Lake Lafayette constitute Outstanding Florida Waters (OFW), instead these water bodies are Class III Waters. On April 14, 1989, DER staff conducted an inspection of the project site, completed a permit application appraisal of the project, and issued permit no. 371633191 for the project. On the same day, the permit was withdrawn when it was discovered that the document had been signed by an unauthorized official. On April 20, 1989, DER again issued permit no. 371633191 to the Board for the project. The dredging, pipe installation, and backfilling were subsequently completed. Water Quality Since the dredging and filling could potentially produce short-term turbidity in the Alford Arm as a result of sediment entering the water, a specific condition of the permit required the placement of a row of staked hay bales downstream from the project site prior to construction and thereafter until re- vegetation of the site had occurred. By compliance with this turbidity control measure, reasonable assurance was provided by the Board that violations of state water quality standards would not result from the project construction. The project did not cause any violations of DER water quality criteria for turbidity or any other water quality criteria. Numerous technological advances and safeguards built into the sewer lines and lift stations make probability of any leakage very remote. Petitioner's concern with regard to potential for leakage from the collection system lines and the lift stations to cause water quality problems in the Alford Arm is not supported by any competent substantial evidence of record regarding statistical frequency and probability of such occurrences. Further, there is no such evidence of infirmities regarding design soundness or the functional history of the pipe used in the project. Public Interest DER evaluated the project in accordance with the criteria of Section 403.918(2), Florida Statutes, prior to issuance of the permit. Another review has now been completed approximately two years after completion of the project. The project has not and will not cause any adverse impacts on public health, safety, welfare, or property of others. Likewise, the project has not caused adverse impacts on significant historical or archaeological resources. Similarly, no adverse impacts on the conservation of fish or wildlife, including endangered or threatened species or their habitats has or will result from the project. Interestingly, woodstorks have been observed feeding in the very vicinity of the project as recently as May 28, 1991, more than two years after completion of the project. No adverse impacts have or will be visited upon navigation or flow of the water. No harmful erosion or shoaling has or will result from the project. The project has not and will not cause any adverse impacts on fishing, recreational values or marine productivity in the vicinity of the project. The impacts of this dredge and fill project were temporary. The dredged and filled area has re-vegetated with the same species, pickerelweed and smartweed. Wetland functions of the site that existed prior to the project were minimal and have been re-established. Cumulative And Secondary Impacts Cumulative impacts from similar projects were not evidenced at the final hearing. There are no projects proposed which are closely linked or causally related to the dredge and fill project. The only non-speculative secondary impact from the project was possible leakage of wastewater from the collection system lines and lift station. The probability of such leakage is very low. Particularly in view of the geographical area, engineering design and manufacture of the pipes and waste collection system, such probability is speculative and minimal or non-existent in the absence of competent substantial evidence regarding statistical frequency of such an event. The construction of the sewage collection system with which the project is associated is a result of growth in the geographic area. While the project has not been established to induce growth in the area, such development would not affect Lake Lafayette since the collection system currently installed has a 400 gallon per minute capability, or the ability to serve 400 residential connections. Prior to issuance of the dredge and fill permit, 800 existing residential lots were platted along Buck Lake Road within two miles east and two miles west of the project site. Since the system could be upgraded to accommodate 1600 residential units, the potential increase that could result from the project in any event is an additional 800 residential units. If these additional residences are built at the very high density of one per quarter acre, these lots would cover only approximately two-thirds of a square mile or less than one percent of the Lake Lafayette drainage basin of approximately 80 square miles. Such development would have no measurable impact on Lake Lafayette.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered approving the issuance of permit number 371633191 to the Board. RECOMMENDED this 9th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2752 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None Submitted. Respondent Board's Proposed Findings: 1.-17. Adopted in substance. Respondent Department's Proposed Findings: 1.-24. Adopted in substance. COPIES FURNISHED: Terri Saltiel 7769 Deep Wood Trail Tallahassee, FL 32311 Richard A. Lotspeich, Esq. John T. LaVia, III, Esq. P.O. Box 271 Tallahassee, FL 32302 Michael Donaldson, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire 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 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
Findings Of Fact The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap. Filtrative and recycling properties would be completely removed if the area were dredged. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1980. COPIES FURNISHED: C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Ms. Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
