Findings Of Fact Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional 40 feet into Perdido Bay. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1). The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from 2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued. DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: William E. and Marie M. Jackson Route 1, Box 826 Pensacola, Florida 32507 Mr. George M. Threadgill 4626 LeHavre Way Pensacola, Florida 32505 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
The Issue Petitioner had filed Notice Of Violation And Orders For Corrective Action and Supplemental Notice Of Violation And Orders For Corrective Action related to the placement of fill material on property owned by the Respondents in Duval County, Florida. This action by the agency was in accordance with the provisions of Chapter 403, Florida Statutes, based upon the belief that this fill material was placed within the landward extent of waters of the state. Through this case, the Petitioner attempts to cause the removal of the fill and the restoration of the area in question to a natural state and requests the award of $350.00 in expenses for investigation of this matter. Respondents requested hearing on these allegations, asserting their right to place the fill. Respondents' posture is one of opposing the jurisdiction of the Petitioner to take action, in that the Respondents believe that the fill was not placed on property over which the Petitioner has any regulatory authority. WITNESSES AND EVIDENCE During the hearing, Petitioner called as witnesses Ken Deurling, Dar-Guam Cheng and Sydney Brinson. Nine exhibits were offered by the Petitioner and those exhibits were received as evidence. Respondents testified and presented Richard League as a witness. Respondents offered an exhibit marked as Exhibit A. That exhibit was not admitted.
Findings Of Fact Respondents own property in Jacksonville, Duval County, Florida, as recorded in Plat Book 12-74, 75 of the public/records of Duval County as Lots 23, 24 25, 26 and 27, Hyde Park Circle. The property which is the subject of this dispute is within those boundaries. This property is further depicted in Petitioner's Exhibit Number 9, which roughly describes then placement of fill in the area in question. The yellow cross-hatching on this exhibit represents fill material placed prior to June 1983. The red cross-hatching represents fill material that was not there in June 1983 but was in place by October 1984. The blue cross-hatching represents fill that was not there at the time of the placement of the fill material shown in the red cross-hatching but which was in place by May 1985. Petitioner's Composite Exhibit Number 3 is a series of photographs taken at various times as described on the face of that composite exhibit, indicating the types of materials which were used to fill the area in question, to include building materials, felled trees and fill dirt. Petitioner's Exhibit Number 7 is a composite exhibit constituted of aerial photographs indicating the appearance of the site as of January 5, 1981, and on February 10, 1985. Those photographs show the decrease in the over-story of trees on February 10, 1985, as contrasted with January 5, 1981. Petitioner's Exhibit Number 8 is constituted of maps which depict the connection of the Cedar River to the Ortega River to the St. Johns River, waters of the state. The property in question fronts Wills Branch, a further water body of the state which flows into the Cedar River. Wills Branch is shown on Petitioner's Exhibit Number 9 at the top of that drawing. Respondents' own additional lots which are shown in Petitioner's Exhibit Number 9 in the area on the right side of that exhibit which depicts a house and outbuildings. The lots where the house and outbuildings are found had also been filled prior to June 1983. That filling activity is not the subject of this dispute. Some filling had also been done in the eastern- most lot of the lots described as 23 through 27 in the immediately preceding paragraph, and the filling in that eastern-most lot in that grouping is not the subject of dispute. Therefore, it is not depicted in the colored cross-hatching found on Petitioner's Exhibit Number 9. At the time Respondents took up residence in the area adjacent to the questioned site, the road known as Hyde Park Circle, which fronts their property, and a golf course further upland from Wills Branch were already in place. In addition there was a water flow across the property in dispute through a flow-way and into Wills Branch. The flow-way is also part of state waters. At present that flow-way area is depicted in blue cross-hatching on Petitioner's Exhibit Number 9. In the past and at present this unnamed flow-way allowed for the flow pattern across the property in dispute and into Wills Branch. As briefly discussed, this water coming off the property in question would exit via Wills Branch, in turn into the Cedar River, the Ortega River and the St. Johns River. The subject areas in which fill was placed by the. Respondents included certain low-lying areas where water had. stood in the past, and the area depicted by yellow cross- hatching is an area which had been excavated by the City of Jacksonville,. Florida prior to the placement of fill. The fill has not been placed up to the furtherest reaches of the property as it abuts. Wills Branch. All told, approximately 1.4 acres have been filled by the Respondents, and that fill placement was made without benefit of any environmental permit(s) as provided by the Petitioner. The fill in question as shown in the yellow, red, and blue cross-hatching in Petitioner's Exhibit Number 9 was placed within the landward extent of Wills Branch and the unnamed flow- way and as such was placed in waters of the state. The determination of the landward extent of the state waters was. through the use of plant indicators, in this instance, the presence of Fraxinus carolinaina (water oak) and Nyssa sylvatica var, biflora (black gum), formerly referenced as Nyssa biflora, (swamp tupelo), as the dominant canopy species and by the presence of Osmunda regalis (royal fern) and Orontium acquaticum (golden club) as the dominant ground cover species in the filled area prior to and during fill placement. These species are listed in the "species list" related to wetland indicators, as found in Rules 17-4.02, Florida Administrative Code, as amended and renumbered to be Rule 17-4.022, Florida Administrative Code, in October 1984. The trees in the filled area are buttressed to a height of approximately half a meter and the soil in the filled area is hydric. This buttressing and the type of soil are indicators of a wetlands system. That type of soil tends to indicate that the filled area is subject to regular and periodic inundation by water. The testimony reveals that Wills Branch inundates the property on the occasion of high incidence of rainfall. Other sources of water for the site are provided from rainwater falling directly on the site and the pattern of water flow across the property caused by water coming onto the property from a location upland of the property. This is related to a lake located on the golf course on the other side of Hyde Park Circle. Normally any overflow conditions onto the subject fill. area occurs in the vicinity of the flow-way. Conditions must be more extreme for these off-site influences to discharge water onto the filled areas other than the flow-way. As of June 24, 1983, the filled area was approximately 2,700 square feet in dimension. At that time, the Petitioner advised the Respondents that the fill had been placed in violation of Chapter 403, Florida Statutes, and requested that the Respondents not place any additional fill. By October 3, 1984, Respondents had expanded the amount of fill to approximately 55,500 square feet and subsequently, on May 9, 1985, that amount of fill material approached 58,500 square feet of fill. A more complete description of the fill material indicates its constituents as being roofing materials, other forms of building materials, wood, insulation materials, dirt and household trash. The major component of the fill is roofing products. The difference in appearance in over-story shown in Petitioner's Exhibit Number 8 can be accounted for in that the vegetation has died as a result of the filling activities or the direct removal of that vegetation by the Respondents. The disposition of the fill material has caused and continues to cause water pollution and to lower the water quality in Wills Branch and the rivers downstream. Prior to the placement of the fill, the natural wetlands vegetation and soil served the purpose of absorbing and assimilating runoff from properties up- land of the site. This included cleansing insecticide and pesticide-laden runoff from the golf course area previously described. In placing the fill, the wetlands system has been destroyed, with its animal, plant and aquatic life components, and no longer provides wildlife habitat or acts as a source of food within the aquatic ecosystem or provides for flood storage. It is probable that some of the fill material, such as the roofing, will provide additional pollution through leaching. The presence of these materials may reasonably be expected to degrade and cause water pollution in Wills Branch and those major water systems connected to Wills Branch through this process. The previous factual findings demonstrate the propriety of the removal of the fill materials and the restoration of the site to its previous character within six months of the entry of the Final Order. The Petitioner has incurred costs of investigation in the amount of $350.00. Respondents needed a dredge and fill permit for the placement of the fill and proceeded to place further fill even after being told of the necessity to obtain a permit and have never sought a permit prior to the placement of any of the fill in question or after the fact.
Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
The Issue This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department. DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984. COPIES FURNISHED: David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 (904)488-9675 Joe Pair 1200 Mahogany Mill Road Pensacola, Florida 32907 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be determined in this case are: whether Petitioners have standing; and whether Rule 62-302.800(2) is an invalid exercise of delegated legislative authority, as defined by Section 120.52(8)(b) and (c), Florida Statutes.3
Findings Of Fact Petitioner, St. Johns Riverkeeper, Inc. (Riverkeeper), is a nonprofit, membership-based corporation with its principal place of business in Jacksonville, Florida. It is dedicated to the protection, preservation, and restoration of the ecological integrity of the St. Johns River watershed, monitors water quality in the river and its tributaries, and involves citizens in the decisions that affect the health of the river, and organizes regular boat trips for its members and citizens to learn more about the river and how they can participate in its management. Petitioner, Henry O. Palmer (Palmer), uses the lower St. Johns River (LSJR), including its marine portions and tributaries, for kayaking, boating, and observation of wildlife, and a substantial number of Riverkeeper's members use the LSJR, including its marine portions and tributaries, for boating, fishing, crabbing, observing birds and other wildlife, and other water-based recreational activities. Based on undisputed affidavits, Petitioners are substantially affected by algal blooms and decay and vegetation and fish kills in and along the river. These conditions can be caused by excessive nutrients along with other factors. Respondent, Department of Environmental Protection (DEP), has used the procedures in Rule 62-302.800(2) to establish a Type II site-specific alternative criterion (SSAC) for dissolved oxygen (DO) for the LSJR that is lower than the otherwise-applicable, default water quality standard in Rule 62- 302.530(30). See Fla. Admin. Code R. 62-302.800(5)(a). As a result of the SSAC, DEP revised the Total Maximum Daily Load (TMDL) for total phosphorus (TP) and total nitrogen (TN) allowed for the marine portion of the LSJR. Rule 62-302.800 sets out a procedure for establishing a SSAC. Paragraph (1) sets out the procedure for Type I SSACs, which can be established when a "water body, or portion thereof, may not meet a particular ambient water quality criterion specified for its classification, due to natural background conditions or man-induced conditions which cannot be controlled or abated" and "when an affirmative demonstration is made that an alternative criterion is more appropriate for a specified portion of waters of the state." Paragraph (2), which is challenged in this case, sets out the procedure to petition DEP for a Type II SSAC for unspecified "reasons other than those set forth above in subsection 62-302.800(1), F.A.C." Rule 62-302.800(2) provides in part: The Department shall initiate rulemaking for the [Environmental Regulation] Commission to consider approval of the proposed alternative criterion as a rule if the petitioner meets all the requirements of this subparagraph and its subparts. The petitioner must demonstrate that the proposed criterion would fully maintain and protect human health, existing uses, and the level of water quality necessary to protect human health and existing and designated beneficial uses. If the petition fails to meet any of these requirements (including the required demonstration), the Department shall issue an order denying the petition. In deciding whether to initiate rulemaking or deny the petition, the Department shall evaluate the petition and other relevant information according to the following criteria and procedures: The petition shall include all the information required under subparagraphs (1)(a)1.-4. above. In making the demonstration required by this paragraph (c), the petition shall include an assessment of aquatic toxicity, except on a showing that no such assessment is relevant to the particular criterion. The assessment of aquatic toxicity shall show that physical and chemical conditions at the site alter the toxicity or bioavailability of the compound in question and shall meet the requirements and follow the Indicator Species procedure set forth in Water Quality Standards Handbook (December 1983), a publication of the United States Environmental Protection Agency, incorporated here by reference. If, however, the Indicator Species Procedure is not applicable to the proposed site-specific alternative criterion, the petitioner may propose another generally accepted scientific method or procedure to demonstrate with equal assurance that the alternative criterion will protect the aquatic life designated use of the water body. The demonstration shall also include a risk assessment that determines the human exposure and health risk associated with the proposed alternative criterion, except on a showing that no such assessment is relevant to the particular criterion. The risk assessment shall include all factors and follow all procedures required by generally accepted scientific principles for such an assessment, such as analysis of existing water and sediment quality, potential transformation pathways, the chemical form of the compound in question, indigenous species, bioaccumulation and bioconcentration rates, and existing and potential rates of human consumption of fish, shellfish, and water. If the results of the assessments of health risks and aquatic toxicity differ, the more stringent result shall govern. The demonstration shall include information indicating that one or more assumptions used in the risk assessment on which the existing criterion is based are inappropriate at the site in question and that the proposed assumptions are more appropriate or that physical or chemical characteristics of the site alter the toxicity or bioavailability of the compound. Such a variance of assumptions, however, shall not be a ground for a proposed alternative criterion unless the assumptions characterize a factor specific to the site, such as bioaccumulation rates, rather than a generic factor, such as the cancer potency and reference dose of the compound. Man-induced pollution that can be controlled or abated shall not be deemed a ground for a proposed alternative criterion. The petition shall include all information required for the Department to complete its economic impact statement for the proposed criterion. For any alternative criterion more stringent than the existing criterion, the petition shall include an analysis of the attainability of the alternative criterion. No later than 180 days after receipt of a complete petition or after a petitioner requests processing of a petition not found to be complete, the Department shall notify the petitioner of its decision on the petition. The Department shall publish in the Florida Administrative Weekly either a notice of rulemaking for the proposed alternative criterion or a notice of the denial of the petition, as appropriate, within 30 days after notifying the petitioner of the decision. A denial of the petition shall become final within 14 days unless timely challenged under Section 120.57, F.S. The provisions of this subsection do not apply to criteria contained in Rule 62- 302.500, F.A.C., or criteria that apply to: Biological Integrity. B.O.D. Nutrients. Odor. Oils and Greases. Radioactive Substances. Substances in concentrations that injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. Substances in concentrations that result in the dominance of nuisance species. Total Dissolved Gases. Any criterion or maximum concentration based on or set forth in paragraph 62-4.244(3)(b), F.A.C. Despite any failure of the Department to meet a deadline set forth in this subsection (2), the grant of an alternative criterion shall not become effective unless approved as a rule by the Commission. Nothing in this rule shall alter the rights afforded to affected persons by Chapter 120, F.S. Rule 62-302.800 cites several statutes as its specific rulemaking authority and specific provisions of law implemented, including Section 403.061, Florida Statutes, which states in pertinent part: The department shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it and, for this purpose, to: * * * Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act. . . . . * * * Adopt a comprehensive program for the prevention, control, and abatement of pollution of the air and waters of the state, and from time to time review and modify such program as necessary. Develop a comprehensive program for the prevention, abatement, and control of the pollution of the waters of the state. In order to effect this purpose, a grouping of the waters into classes may be made in accordance with the present and future most beneficial uses. . . . . Establish ambient air quality and water quality standards for the state as a whole or for any part thereof, and also standards for the abatement of excessive and unnecessary noise. . . . . Section 403.201, Florida Statutes, sets out a separate procedure to apply to DEP for a variance from DEP's rules and regulations, including water quality standards, "for any one of the following reasons": There is no practicable means known or available for the adequate control of the pollution involved. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required. To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification. There was no evidence that the revised TMDLs for TP and TN allowed for the marine portion of the LSJR will lead to algal growth and algal blooms, reduced DO, fish kills, or adverse impacts to recreation on the river. To the contrary, the Type II DO SSAC for the marine portion of the LSJR has not been challenged and conclusively establishes that it will "maintain and protect human health, existing uses, and the level of water quality necessary to protect human health and existing and designated beneficial uses" and will "protect the aquatic life designated use of the water body." Fla. Admin. Code R. 62- 302.800(2)(c). See also Affidavit of Douglas J. Durbin, Ph.D., filed June 25, 2010.
The Issue The issues to be determined in these consolidated cases are whether All Aboard Florida – Operations, LLC (“the Applicant”), and Florida East Coast Railway, LLC (“FECR”), are entitled to an Environmental Resource Permit Modification authorizing the construction of a stormwater management system and related activities to serve railway facilities, and a verification of exemption for work to be done at 23 roadway crossings (collectively referred to as “the project”).
Findings Of Fact The Parties Petitioners Martin County and St. Lucie County are political subdivisions of the State of Florida. Petitioners have substantial interests that could be affected by the District’s proposed authorizations. Intervenor Town of St. Lucie Village is a political subdivision of the State of Florida. Intervenor has substantial interests that could be affected by the District’s proposed authorizations. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company based in Miami. All Aboard Florida is part of a group of corporate entities formed for the principal purpose of developing and operating express passenger train service in Florida. Co-applicant Florida East Coast Railway, LLC, is a Florida limited liability company based in Jacksonville. FECR owns the existing railway corridor the passenger train service will use between Miami and Cocoa. South Florida Water Management District is a regional agency granted powers and assigned duties under chapter 373, part IV, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The proposed activities are within the boundaries of the District. Background The objective of the All Aboard Florida Project is to establish express passenger train service connecting four large urban areas: Miami, Fort Lauderdale, West Palm Beach, and Orlando. Most of the passenger service route, including the portion which will pass through Martin County and St. Lucie County, will use an existing railroad right-of-way used since the late 1800s. The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It supported passenger and freight operations on shared double mainline tracks from 1895 to 1968. The passenger service was terminated in 1968 and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The passenger service will use the FECR right-of-way from Miami to Cocoa and then turn west on a new segment to be constructed from Cocoa to Orlando. The railway corridor will be operated as a joint facility, with passenger and freight trains sharing the double mainline tracks. The Applicant is upgrading the portion of the corridor between Miami and Cocoa by, among other things, replacing existing railroad ties and tracks, reinstalling double mainline tracks, and improving grade crossings. The Applicant is also installing Positive Train Control systems which provide integrated command and control of passenger and freight train movements and allow the trains to be directed and stopped remotely or automatically in the event of operator error or disability, or an obstruction on the track. The All Aboard Florida Project is being developed in two phases, Phase I extends from Miami to West Palm Beach, and Phase II from West Palm Beach to Orlando. This proceeding involves a segment within Phase II, known as Segment D09, which runs from just north of West Palm Beach to the northern boundary of St. Lucie County. The railway corridor in Segment D09 passes through Jonathan Dickinson State Park in Martin County and the Savannas Preserve State Park, parts of which are in both Martin County and St. Lucie County. Surface waters within these state parks are Outstanding Florida Waters (“OFWs”). The railway in Segment D09 also passes over the St. Lucie River using a bridge that can be opened to allow boats to pass. The Applicant plans to run 16 round trips per day between Miami and Orlando, which is about one train an hour in each direction, starting early in the morning and continuing to mid-evening. In 2013, the District issued the Applicant an exemption under section 373.406(6), which exempts activities having only minimal or insignificant adverse impacts on water resources. The 2013 exemption covers proposed work in approximately 48 of the 65 miles which make up Segment D09, and includes replacement of existing tracks and re-establishment of a second set of mainline tracks where they were historically located. The 2013 exemption covers all but 24 of the roadway crossings within Segment D09 where work is to be done in connection with the All Aboard Florida Project. In 2015, the District issued the Applicant a general permit under rule 62-330.401, which authorizes activities that are expected to cause minimal adverse impacts to water resources, for the installation of fiber optic cable along the rail bed within Segment D09. The 2013 exemption and 2015 general permit were not challenged and became final agency action. The Proposed Agency Actions The ERP Modification covers work to be done in approximately 17 of the 65 miles which make up Segment D09. The work will consist primarily of replacing existing tracks, installing new tracks, making curve modifications in some locations to accommodate faster trains, culvert modifications, and work on some fixed bridge crossings over non-navigable waters. The 2017 Exemption at issue in this proceeding covers improvements to 23 of the 24 roadway crossings that were not covered by the 2013 exemption. Proposed improvements at Southeast Florida Street in Stuart will be permitted separately. The improvements covered by the 2017 Exemption include upgrading existing safety gates and signals; installing curbs, guardrails, and sidewalks; resurfacing some existing paved surfaces; and adding some new paving. Petitioners argue that, because the District’s staff report for the ERP Modification states that the ERP does not cover work at roadway crossings, track work at roadway crossings has not been authorized. However, the staff report was referring to the roadway improvements that are described in the 2017 Exemption. The proposed track work at the roadway crossings was described in the ERP application and was reviewed and authorized by the District in the ERP Modification. “Segmentation” Petitioners claim it was improper for the District to separately review and authorize the proposed activities covered by the 2013 exemption, the 2015 general permit, the ERP Modification, and the 2017 Exemption. Petitioners contend that, as a consequence of this “segmentation” of the project, the District approved “roads to nowhere,” by which Petitioners mean that these activities do not have independent functionality. Petitioners’ argument is based on section 1.5.2 of the Applicant’s Handbook, Volume 1,1/ which states that applications to construct phases of a project can only be considered when each phase can be constructed, operated, and maintained totally independent of future phases. However, the activities authorized by the four agency actions are not phases of a project. They are all parts of Phase II of the All Aboard Florida Project, which is the passenger railway from West Palm Beach to Orlando. Section 1.5.2 is not interpreted or applied by the District as a prohibition against separate review and approval of related activities when they qualify under the District’s rules for exemptions, general permits, and ERPs. Much of Phase II is outside the District’s geographic boundaries and, therefore, beyond its regulatory jurisdiction. The District can only review and regulate a portion of Phase II. The District is unable to review this portion as a stand-alone railway project that can function independently from other project parts. The Proposed Stormwater Management System Where the Applicant is replacing existing tracks or re- establishing a second set of tracks, it will be laying new ties, ballast, and rail on previously-compacted earth. In those areas, no stormwater management modifications were required by the District. The Applicant’s new proposed stormwater management system will be located in a five-mile area of the corridor where an existing siding will be shifted outward and used as a third track. In this area, swales with hardened weir discharge structures and skimmers will be installed to provide stormwater treatment beyond what currently exists. The weir discharge structures will serve to prevent erosion at discharge points. The skimmers will serve to capture any floating oils or refuse. Because the FECR right-of-way is not wide enough in some three-track areas to also accommodate swales, the proposed stormwater management system was oversized in other locations to provide compensating volume. The District determined that this solution was an accepted engineering practice for linear systems such as railroads. Petitioners argue that the Applicant’s proposed stormwater management system is deficient because some of the proposed swales do not meet the definition of “swale” in section 403.803(14) as having side slopes equal to or greater than three feet horizontal to one foot vertical (3:1). The statute first defines a swale to include a manmade trench which has “a top width-to-depth ratio of the cross-section equal to or greater than 6:1.” The swales used in the proposed stormwater management system meet this description. Petitioners showed that the plans for one of the 46 proposed swales included some construction outside the FECR right-of-way. In response, the Applicant submitted revised plan sheets to remove the swale at issue. The Emergency Access Way The ERP application includes proposed modifications to portions of an existing unpaved emergency access way which runs along the tracks in some areas. The access way is a private dirt road for railroad-related vehicles and is sometimes used for maintenance activities. At the final hearing, Petitioners identified an inconsistency between an application document which summarizes the extent of proposed new access way construction and the individual plan sheets that depict the construction. The Applicant resolved the inconsistency by correcting the construction summary document. Petitioners also identified an individual plan sheet showing proposed access way modifications to occur outside of the FECR right-of-way. This second issue was resolved by eliminating any proposed work outside the right-of-way. Petitioners believe the proposed work on the access way was not fully described and reviewed because Petitioners believe the access way will be made continuous. However, the access way is not continuous currently and the Applicant is not proposing to make it continuous. No District rule requires the access way segments to be connected as a condition for approval of the ERP. Water Quantity Impacts An applicant for an ERP must provide reasonable assurance that the construction, operation, and maintenance of a proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. The District’s design criterion to meet this requirement for water quantity management is a demonstration that the proposed stormwater system will capture the additional runoff caused during a 25-year/3-day storm event. The Applicant’s proposed stormwater system meets or exceeds this requirement. Petitioners argue that the Applicant failed to provide reasonable assurance because the ERP application materials did not include a calculation of the discharge rates and velocities for water discharging from the swales during the design storm. The ERP application contains the information required to calculate the discharge rates and velocities and the Applicant’s stormwater expert, Bruce McArthur, performed the calculations and testified at the final hearing that in the areas where there will be discharges, the discharge rates and velocities would be “minor” and would not cause adverse impacts. The District’s stormwater expert, Jesse Markle, shared this opinion. Petitioners argue that this information should have been provided to the District in the permit application, but this is a de novo proceeding where new evidence to establish reasonable assurances can be presented. Petitioners did not show that Mr. McArthur is wrong. Petitioners failed to prove that the proposed project will cause adverse water quantity impacts, flooding, or adverse impacts to surface water storage and conveyance capabilities. Water Quality Impacts To obtain an ERP, an applicant must provide reasonable assurance that the construction, operation, and maintenance of a regulated project will not adversely affect the quality of receiving waters, such that state water quality standards would be violated. The District’s design criteria for water quality required the Applicant to show that its proposed stormwater system will capture at least 0.5 inches of runoff over the developed area. To be conservative, the Applicant designed its proposed system to capture 1.0 inch of runoff in most areas. Under District rules, if a stormwater system will directly discharge to impaired waters or OFWs, an additional 50 percent of water quality treatment volume is required. The proposed stormwater system will not directly discharge to either impaired waters or OFWs. In some locations, there is the potential for stormwater discharged from the proposed stormwater system to reach OFWs by overland flow, after the stormwater has been treated for water quality purposes. The Applicant designed its proposed stormwater system to provide at least an additional 50 percent of water quality treatment volume in areas where this potential exists. To ensure that the proposed construction activities do not degrade adjacent wetlands, other surface waters, or off-site areas due to erosion and sedimentation, the Applicant prepared an Erosion and Sediment Control Plan. Temporary silt fences and turbidity barriers will be installed and maintained around the limits of the construction. The District’s design criteria for water quality do not require an analysis of individual contaminants that can be contained in stormwater, except in circumstances that do not apply to this project. Compliance with the design criteria creates a presumption that water quality standards for all potential contaminants are met. See Applicant’s Handbook, V. II, § 4.1.1. Although not required, the Applicant provided a loading analysis for the proposed swales which could potentially discharge overland to impaired waters or OFWs. The analysis compared pre- and post-development conditions and showed there would be a net reduction in pollutant loading. Petitioners believe the pollutant loading analysis was inadequate because it did not specifically test for arsenic and petroleum hydrocarbons. However, the analysis was not required and adequate treatment is presumed. Petitioners did not conduct their own analysis to show that water quality standards would be violated. Petitioners’ expert, Patrick Dayan, believes the compaction of previously undisturbed soils in the emergency access way would increase stormwater runoff. However, he did not calculate the difference between pre- and post-construction infiltration rates at any particular location. His opinion on this point was not persuasive. Petitioners failed to prove that the proposed project will generate stormwater that will adversely affect the quality of receiving waters such that state water quality standards would be violated. The preponderance of the evidence shows the project complies with District design criteria and will not cause water quality violations. Soil and Sediment Contamination Petitioners argue that the ERP Modification does not account for the disturbance of existing contaminants in soils and sediments that could be carried outside of the right-of-way and into OFWs. Petitioners’ argument is based on investigations by their geologist, Janet Peterson, who collected soil, sediment, and surface water samples at 13 sites along the FECR rail corridor in the vicinity of OFWs, or surface waters that eventually flow into OFWs. During her sampling visits, Ms. Peterson saw no visual evidence of an oil spill, fluid leak, or other release of hazardous materials. Ms. Peterson compared her soil sample results to the Residential Direct Exposure Soil Cleanup Target Levels (“SCTLs”) established in rule 62-777. The SCTLs are the levels at which toxicity becomes a human health concern and the residential SCTLs assume soil ingestion of 200 mg/day for children, and 100 mg/day for adults, 350 days a year, for 30 years. Some of the soil sampling results showed exceedances of SCTLs, but the SCTLs are not applicable here because none of the sample sites are locations where children or adults would be expected to ingest soil at such levels for such lengths of time. Petitioners did not show that the contaminants are likely to migrate to locations where such exposure would occur. Ms. Peterson compared her soil sample results to the Marine Surface Water Leachability SCTLs, but she did not develop site-specific leachability-based SCTLs using DEP’s approved methodology. Nor did she show that the proposed project will cause the soils to leach the contaminants. Ms. Peterson collected sediment samples from shorelines, but not where construction activities are proposed. She compared her sediment sample results to the Florida Department of Environmental Protection’s (“DEP”) Sediment Quality Assessment Guidelines (“SQAGs”). These guidelines are not water quality standards. Any exceedance of these guidelines requires further analysis to determine potential water quality impacts. Ms. Peterson did not conduct the analysis. Ms. Peterson acknowledged that there are numerous sources for these pollutants at or near her sample sites, such as high-traffic roads, vehicular bridges, commercial and industrial facilities, boatyards, and golf courses. She did not establish baselines or controls. Ms. Peterson collected surface water samples at seven sites, some of which were located outside the FECR right-of-way. The results showed levels of phosphorous and nitrogen above the criteria for nutrients at some locations. Phosphorous, nitrogen, and the other nutrients are prevalent in the waters of Martin County and St. Lucie County and come from many sources. Petitioners’ evidence focused on existing conditions and not expected impacts of the proposed project. The evidence was insufficient to prove the proposed project will cause or contribute to water quality violations. Functions Provided by Wetlands and Other Surface Waters An applicant for an ERP must provide reasonable assurance that a proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Petitioners claim the Applicant and District should not have relied on Florida Land Use Cover and Forms Classification System (“FLUCCS”) maps to identify and characterize wetlands and other habitat areas because the maps are too general and inaccurate. However, the FLUCCS maps were not used by the Applicant or District to evaluate impacts to wetlands or other habitats. The Applicant began its evaluation of impacts to wetlands and other habitat areas by field-flagging and surveying the wetland and surface water boundaries in the project area using a GPS device with sub-meter accuracy. It then digitized the GPS delineations and overlaid them with the limits of construction to evaluate anticipated direct impacts to wetlands and other surface waters. The District then verified the delineations and assessments in the field. The Applicant and District determined that there are a total of 4.71 acres of wetlands within the FECR right-of-way, including tidal mangroves, freshwater marsh, and wet prairie. They also determined the proposed project will directly impact 0.35 acres of wetlands, consisting of 0.09 acres of freshwater marsh and 0.26 acres of mangroves. Petitioners contend that the Applicant failed to account for all of the project’s wetland impacts, based on the wetland delineations made by their wetland expert, Andrew Woodruff. Most of the impacts that Mr. Woodruff believes were not accounted for are small, between 0.01 and 0.05 acres. The largest one is acres. The Applicant’s delineations are more reliable than Mr. Woodruff’s because the methodology employed by the Applicant had greater precision. It is more likely to be accurate. Petitioners argue that the 2013 exemption and the 2015 general permit did not authorize work in wetlands and, therefore, the impacts they cause must be evaluated in this ERP Modification. However, Petitioners did not prove that there are unaccounted-for wetland impacts associated with those authorizations. Any impacts associated with best management practices for erosion control, such as the installation of silt fences, would be temporary. The District does not include such temporary minor impacts in its direct, secondary, or cumulative impacts analyses. Most of the wetlands that would be directly impacted by the ERP Modification are degraded due to past hydrologic alterations and soil disturbances from the original construction and historical use of the FECR railway corridor, and infestation by exotic plant species. Most of these wetlands are also adjacent to disturbed uplands within or near the rail corridor. The functional values of most of the wetlands that would be affected have been reduced by these disturbances. The Applicant provided reasonable assurance that the project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Secondary Impacts Section 10.2.7 of the Applicant’s Handbook requires an applicant to provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity (a) will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters; (b) will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland-dependent listed animal species for nesting or denning by these species; (c) will not cause impacts to significant historical or archaeological resources; and (d) additional phases for which plans have been submitted, and closely linked projects regulated under chapter 373, part IV, will not cause water quality violations or adverse impacts to the functions of wetlands or other surface waters. The proposed work will be entirely within the limits of the existing railway corridor where secondary impacts to wetlands and other surface waters caused by noise, vibration, fragmentation of habitats, and barriers to wildlife have existed for decades. The preponderance of the evidence shows that any increase in these kinds of impacts would be insignificant and would not reduce the current functions being provided. Because the affected wetlands are not preferred habitat for wetland-dependent, endangered, or threatened wildlife species, or species of special concern, and no such species were observed in the area, no adverse impacts to these species are expected to occur. Petitioners contend that adverse impacts will occur to the gopher tortoise, scrub jay, and prickly apple cactus. These are not aquatic or wetland-dependent species. However, the preponderance of the evidence shows any increase in impacts to these species would be insignificant. When the train bridges are closed, boats with masts or other components that make them too tall to pass under the train bridges must wait for the bridge to open before continuing. Petitioners contend that the current “stacking” of boats waiting for the bridges to open would worsen and would adversely impact seagrass beds and the West Indian Manatee. However, it was not shown that seagrass beds are in the areas where the boats are stacking. The available manatee mortality data does not show a link between boat stacking and boat collisions with manatees. Mr. Woodruff’s opinion about increased injuries to manatees caused by increased boat stacking was speculative and unpersuasive. The preponderance of the evidence shows that the adverse effects on both listed and non-listed wildlife species, caused by faster and more numerous trains would be insignificant. The activities associated with the 2013 exemption and the 2015 general permit for fiber optic cable were based on determinations that the activities would have minimal or insignificant adverse impacts on water resources. These determinations are not subject to challenge in this proceeding. The Applicant provided reasonable assurance that the secondary impacts of the project will not cause or contribute to violations of water quality standards, adversely impact the functions of wetlands or other surface waters, adversely impact the ecological value of uplands for use by listed animal species, or cause impacts to significant historical or archaeological resources. Elimination and Reduction of Impacts Under section 10.2.1.1 of the Applicant’s Handbook, if a proposed activity will result in adverse impacts to wetlands and other surface waters, the applicant for an ERP must implement practicable design modifications to eliminate or reduce the impacts, subject to certain exceptions that will be discussed below. Petitioners argue that this rule requires the Applicant and District to evaluate the practicability of alternative routes through the region, routes other than the existing railway corridor in Segment D09. As explained in the Conclusions of Law, that argument is rejected. The evaluation of project modifications to avoid impacts was appropriately confined to the railway corridor in Segment D09. The Applicant implemented practicable design modifications in the project area to reduce or eliminate impacts to wetlands and other surface waters. Those modifications included the shifting of track alignments, the elimination of certain third-track segments, and the elimination of some proposed access way modifications. However, the project qualified under both “opt out” criteria in section 10.2.1.2 of the Applicant’s Handbook so that design modifications to reduce or eliminate impacts were not required: (1) The ecological value of the functions provided by the area of wetland or surface water to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value; and (2) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and provides greater long-term ecological value. Mitigation The Applicant proposes to mitigate for impacts to wetlands by purchasing mitigation credits from four District- approved mitigation banks: the Bluefield Ranch, Bear Point, Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a regional off-site mitigation area which implements a detailed management plan and provides regional long-term ecological value. The number of mitigation credits needed to offset loss of function from impacts to wetlands was calculated using the Modified Wetland Rapid Assessment Procedure (“MWRAP”) or Wetland Assessment Technique for Environmental Review (“WATER”), as prescribed in the state permit for each mitigation bank. Applying these methods, the Applicant is required to purchase mitigation credits. The Applicant proposed to mitigate the adverse impacts to freshwater marsh wetlands by purchasing 0.01 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, and 0.06 freshwater herbaceous credits from the Loxahatchee Mitigation Bank. The adverse impacts to tidal mangrove wetlands would be mitigated by purchasing 0.12 saltwater credits from the Bear Point Mitigation Bank, and 0.02 saltwater credits from the F.P.L. Everglades Mitigation Bank. The Applicant committed to purchase an additional 0.29 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, for a total of 0.50 mitigation credits. The proposed mitigation implements a plan that will provide greater long-term ecological value than is provided by the wetlands that will be impacted. The Applicant proved by a preponderance of the evidence that the project complies with the District’s mitigation requirements. Cumulative Impacts To obtain an ERP, an applicant must provide reasonable assurance that a regulated activity will not result in unacceptable cumulative impacts to water resources. This assurance can be provided by proposing to fully mitigate the impacts within the same basin. However, when an applicant proposes mitigation in another drainage basin, the applicant must demonstrate that the regulated activity will not cause unacceptable cumulative impacts. The proposed project will adversely impact 0.02 acres of freshwater marsh wetlands and 0.21 acres of tidal mangrove wetlands in the St. Lucie River basin. The impacts to the freshwater marshes must be mitigated out-of-basin because there are no mitigation banks in the basin which offer freshwater herbaceous mitigation credits. The proposed project will adversely impact 0.07 acres of the freshwater marshes and 0.05 acres of the mangrove wetlands in the Loxahatchee River basin. Those impacts must also be mitigated out-of-basin because there are no mitigation banks in the Loxahatchee River basin. Because some of the Applicant’s proposed mitigation must be provided out-of-basin, the ERP application included a cumulative impact analysis. The analysis evaluated whether the proposed project, when considered in conjunction with other possible development within the St. Lucie River and Loxahatchee River drainage basins, would result in unacceptable cumulative impacts considering each basin as a whole. There are approximately 10,068 acres of freshwater marshes within the St. Lucie basin, of which an estimated 4,929 acres are not preserved and would be at risk of potential future development. The proposed project will adversely impact 0.02 of those acres, which is only 0.0004 percent of the total at-risk acreage. There are about 34,000 acres of freshwater marshes within the Loxahatchee River basin, of which an estimated 7,463 acres are at risk of future development, and approximately 564 acres of tidal mangrove wetlands, of which an estimated 75 acres are at risk of future development. The project will adversely impact 0.07 acres of the freshwater marshes (0.0009 percent), and 0.05 acres of the tidal mangrove wetlands (0.0667 percent). Petitioners contend the Applicant’s analysis did not account for impacts from proposed activities authorized in the 2013 and 2015 general permit. However, Petitioners failed to prove there are unaccounted-for wetland impacts. The preponderance of the evidence supports the District’s determination that the proposed project will not cause unacceptable cumulative impacts to wetlands and other surface waters. Public Interest When an applicant seeks authorization for a regulated activity in, on, or over wetlands or surface waters, it must provide reasonable assurance that the activity will not be contrary to the public interest, or if the activity is within or significantly degrades an OFW, is clearly in the public interest, as determined by balancing the following criteria set forth in section 373.414(1)(a): Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources; and The current condition and relative value of functions being performed by areas affected by the proposed activities. The proposed work is not within an OFW, but entirely within the FECR corridor. The potential for overland flow and indirect impacts to OFWs is addressed by additional treatment of the stormwater prior to discharge. The proposed project would not significantly degrade an OFW. Therefore, the applicable inquiry is whether the project is contrary to the public interest. Factor 1: Public Safety, Safety, and Welfare Petitioners contend that the proposed project will adversely affect public health, safety, and welfare by impacting water quantity, water quality, and certain non-environmental matters such as emergency response times, traffic congestion, and potential train collisions with pedestrians and vehicles. Potential environmental impacts have been addressed above and, by a preponderance of the evidence, the District and the Applicant showed that such impacts would be insignificant or would be mitigated. As to the potential for non-environmental impacts associated with train operations, it is explained in the Conclusions of Law that the public interest test does not include consideration of non-environmental factors other than those expressly articulated in the statute, such as navigation and preservation of historical or archaeological resources. However, because evidence of non-environmental impacts was admitted at the final hearing, the issues raised by Petitioners will be briefly addressed below. The regulatory agency with specific responsibility for railroad safety is the Federal Railroad Administration (“FRA”). The FRA reviewed the safety features associated with the proposed passenger train operations, and approved them. Public safety will be enhanced at roadway crossings because of the proposed improvements and the use of modern technology in monitoring and managing the movement of trains. Petitioners contend that the addition of the passenger rail service will impede emergency response times in Martin County and St. Lucie County due to more frequent roadway closures. However, freight trains currently impede emergency response times due to their length and slow speed. The passenger trains will be much shorter in length and faster so that roadway crossing closures for passing passenger trains will be much shorter than for freight trains. The ERP Modification and 2017 Exemption do not affect freight train operations. The preponderance of the evidence shows that passenger rail service is unlikely to cause a material increase in the occurrence of circumstances where an emergency responder is impeded by a train. The current problem must be addressed through changes in freight train operations. Petitioners also contend that the passenger rail service will interfere with hurricane evacuation. The persuasive evidence does not support that contention. Train service would cease when a hurricane is approaching. Petitioners contend the trains will have to be “staged” on either side of the two moveable bridges while other trains cross, thereby blocking road intersections. However, this was a matter of speculation. The Applicant does not propose or want to stage trains at the bridges. Petitioners contend that the project will cause hazards to boaters on the St. Lucie River because there will be more times when the train bridge will be closed to allow the passage of passenger trains. Although there were many statistics presented about the number of boats affected, the evidence was largely anecdotal with respect to the current hazard associated with boaters waiting for the passage of freight trains and speculative as to the expected increase in the hazard if shorter and faster passenger trains are added. Factor 2: Conservation of Fish and Wildlife As previously found, the proposed activities will not adversely affect the conservation of fish and wildlife, including threatened or endangered species. The preponderance of the evidence shows the project will have only insignificant adverse impacts on water resources and wildlife. Factor 3: Navigation of the Flow of Water Petitioners claim the project will hinder navigation on the St. Lucie and Loxahatchee Rivers because of the increase in bridge closures if passenger trains are added. The U.S. Coast Guard is the agency with clear authority to regulate the opening and closing of moveable train bridges over navigable waters in the interests of navigation. Petitioners’ insistence that the District address the bridge openings is novel. No instance was identified by the parties where this District, any other water management district, or DEP has attempted through an ERP to dictate how frequently a railroad bridge must open to accommodate boat traffic. The Coast Guard is currently reviewing the project’s potential impacts on navigation and will make a determination about the operation of the moveable bridges. It has already made such a determination for the moveable bridge which crosses the New River in Ft. Lauderdale. Petitioners point to section 10.2.3.3 of the Applicant’s Handbook, which states that the District can consider an applicant’s Coast Guard permit, and suggest that this shows the District is not limited to what the Coast Guard has required. However, Section 10.2.3.3 explains the navigation criterion in terms of preventing encroachments into channels and improving channel markings, neither of which encompasses the regulation of train bridges. The preponderance of the evidence shows the project would not cause harmful erosion or shoaling or adversely affect the flow of water. Factor 4: Fishing, Recreational Values, and Marine Productivity The preponderance of the evidence shows that there would be no adverse impacts or only insignificant impacts to fishing or recreational values and marine productivity. Factor 5: Permanent Impact The proposed project will have both temporary and permanent impacts. The temporary impacts include the installation of silt fences and turbidity barriers designed to reduce water quality impacts and impacts to functions provided by wetlands and surface waters. The impacts due to track installation, construction and rehabilitation of the non-moveable bridges, at-grade crossing improvements, and stormwater system improvements are permanent in nature. The permanent impacts have been minimized and mitigated. Factor 6: Historical or Archaeological Resources Petitioners do not contend that the project will adversely affect significant historical or archaeological resources. Factor 7: Wetland Functions in Areas Affected Because the proposed work is within the limits of an existing railway corridor where impacts have been occurring for decades, and the majority of the wetlands to be affected are of a low to moderate quality, there would be only a small loss of functional values and that loss would be fully mitigated. Public Interest Summary When the seven public interest factors are considered and balanced, the proposed project is not contrary to the public interest. Even if Petitioners’ non-environmental issues are included, the project is not contrary to the public interest. Compliance With Other Permit Conditions The project is capable, based on accepted engineering and scientific principles, of performing and functioning as proposed. The Applicant demonstrated sufficient real property interests over the lands upon which project activities will be conducted. It obtained the required consent for proposed activities relating to bridge crossings over state-owned submerged lands. The Applicant provided reasonable assurance of compliance with all other applicable permit criteria. Exemption Verification for Roadway Crossings The Applicant’s ERP application included a mixture of activities which required an individual permit, as well as activities in roadway crossings which the Applicant claimed were exempt from permitting. Pursuant to section 5.5.3.4 of the Applicant’s Handbook, the Applicant requested a verification of exemption as to certain work to be done within 23 of those 24 roadway crossings. The District determined that the improvements for which an exemption was sought were exempt from permitting under rule 62-330.051(4)(c) for minor roadway safety construction, rule 62-330.051(4)(d) resurfacing of paved roads, and rule 62-330.051(10) for “construction, alteration, maintenance, removal or abandonment of recreational paths for pedestrians, bicycles, and golf carts.” The preponderance of the evidence shows the proposed work qualifies for exemption under these rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order that: approves Environmental Resource Permit Modification No. 13-05321-P on the terms and conditions set forth in the District’s Corrected Proposed Amended Staff Report of May 11, 2017; and approves the Verification of Exemption dated March 31, 2017. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
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. /
Findings Of Fact On June 27, 1979, Respondent Department of Environmental Regulation's St. Johns River District office received an application from Petitioner John W. McPhail, Deland, Florida, for a permit to conduct dredge and fill activities on his property at Lake Johnson, DeLeon Springs, Florida. The application reflected that Petitioner desired to dredge 100 cubic yards of material Waterward of the lake mean high Water line and 100 cubic yards landward of the mean high water line, and then fill an adjacent cove area on his Property with the 200 cubic yards of material. (Respondent's Exhibit 1) Lake Johnson is a small privately owned lake about fifteen acres in area. There are two distinct "lobes" of the lake which are joined by a narrow band of water. Each of these lobes is approximately seven acres in area. Some four or five houses, including, Petitioner's, are located around the lake. In the early Seventies, Petitioner dredged part of his shoreline and, in the process, too much material was inadvertently removed from the present cove area and placed in the middle of the property, which left a hump of land in the middle. The shoreline now is irregular with steep ungraded banks, and the cove area is somewhat stagnant. Petitioner wishes to restore the property by dredging the "hump" created by prior filling, and return the material to its Original location by filling the cove area. This will produce an even, sloped shoreline extending some 200 feet and improve the appearance of the lakefront. It will also reduce present maintenance Problems. (Testimony of Petitioner, Vause, Petitioner's Exhibits 1-3) A field biologist in Respondent's District Dredge and Fill Permitting Section conducted an on-site inspection on August 28, 1979, and rendered a report of the inspection on October 2, 1979. He found that the dominant plant community along the banks of the shoreline consisted primarily of upland weeds and grasses such as broomsedge and bahaia grass. Additionally, primrose willow was found in that location. The vegetation along the shoreline includes maidencane and a small amount of bullrush while the open water area is predominately vegetated with water lilies. Primrose willow is a species of vegetation found in the transitional zone of a submerged land, and bullrush, maidencane, and water lily are also fresh water species of vegetation found in submerged lands, as defined in Chapter 17-4, Florida Administrative &ode. The water depth in the lake is approximately eight feet and the depth the water at the steep banks of the Petitioner's property is approximately three feet. Wetlands vegetation of the above types are conducive to the improvement of water quality by increasing dissolved oxygen levels after removal of polluting nutrients from the water. The removal of a significant amount of such vegetation may have a measurable adverse effect on water quality. Although Lake Johnson, a Class III body of water, presently has excellent Water quality, the vegetation along the shoreline has been removed to a degree of about ten to fifteen percent. The removal of fifteen to twenty percent or more of a shoreline in such a lake normally produces a measurable adverse effect on water quality. The dredging of material along a shoreline can produce short-term turbidity of the water. (Testimony of Vause, Respondent's Exhibits 2-3) Respondent's inspector found that although filling the cove would remove some beneficial aquatic and land vegetation, would most likely reestablish if proper sloping was maintained on the shoreline. He also noted in his report that the proposed project would restore approximately one-half acre of open water to the lake. He therefore interposed no objection to the filling aspect of the project, but believed that dredging should not be undertaken waterward of the ordinary high water line, and that the shoreline should be merely contoured without dredging. By letter of October 4, 1979, Respondent's district manager advised Petitioner of its intent to deny his application for permit for the reason that the proposed work would eliminate approximately .5 acres of wetland community and thereby degrade water quality in the areas of BOD, turbidity, and dissolved oxygen. (Testimony of Vause, Respondent's Exhibits 2-4)
Recommendation That Petitioner be issued the requested permit, subject to standard conditions. DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John W. McPhail Route 1, Box 692H Deland, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION JOHN W. MCPHAIL, Petitioner, vs. CASE NO. 79-2174 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
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
