Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 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 At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues. Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards. Background The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses. In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/ Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2 Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life. As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants: To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of +1.4 Ft. NGVD which will be planted with red mangroves. DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction. The Monroe County permits On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit. As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park. While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek. The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least 15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life. While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment. To mitigate the loss of habitat types, the Monroe County permit provides: The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area. Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal. To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition: The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met. The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek. John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy. Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4 Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides: If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met. The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park. Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations Lack of plat approval As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal. Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides: Sec. 9.5-1. Purpose. It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . . Sec. 9.5-2. Applicability. General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a development permit under the provisions of this chapter and other applicable laws and regulations. Sec. 9.5-81. Plat approval and recording required. * * * No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which the construction is proposed. * * * (e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division. Sec. 9.5-94. Amendment of a recorded final plat. An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat. Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/ The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide: Sec. 9.5-82. General Standards for Plat Approval. No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval. Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section. Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning. Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to the development review committee, which shall prepare a recommendation and report for the commission. Public Hearing and Action by the Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee. Effect of Approval of Preliminary Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat. Sec. 9.5-84. Final Plat Approval. Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section. Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44, development review coordinator shall submit the application and accompanying documents to the development review committee. Review and action by Development Review Committee. The development review committee shall review all applications for final plat approval. b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity. Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47. Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C. Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section 9.5-47. Sec. 9.5-90.Maintenance of Private Improvements. If any plat of subdivision contains streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed. As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/ Open space requirements and environmental design criteria Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction. In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or portion thereof, adopted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. (a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added) Sec. 9-804 (MCLDR) Open space requirements. No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type. Land Type on Existing Open Space Conditions Map Ratio Open Waters 1.00 Mangrove and Freshwater 1.00 Wetlands Salt Marsh and Buttonwood .80 Associations .85 High Hammock (High Quality) .80 High Hammock (Moderate Quality) .60 High Hammock (Low Quality) . 4 Low Hammock (High Quality) .80 Low Hammock (Moderate Quality) .60 Low Hammock (Low Quality) . 4 Palm Hammock .90 Cactus Hammock .90 Pinelands (High Quality) .80 Pinelands (Low Quality) .60 Beach Berm .90 Disturbed . 2 Disturbed with Hammock . 2 Disturbed with Salt Marsh and Buttonwood . 2 Disturbed Beach/Berm . 2 Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added) Sec. 9.5-345. Environmental design criteria. No land, as designated on the existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation. (m) Mangroves and Submerged Lands: Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added) From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community. In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan. The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides: Sec. 2-104. Nearshore Waters The Florida Keys are dependent nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant of the biological character of submerged lands. To limit the location of water- dependent facilities at locations that will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes. To limit the location of docking facilities to areas which have adequate circulation and tidal flushing. To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas. To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges. To monitor nearshore water quality to ensure that growth and envelopment is not degrading nearshore water quality. To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated. Sec. 2-105. Wetlands and Associated Systems Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood. In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to the onslaught of storm-driven winds and water. OBJECTIVE To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys. POLICIES To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. * * * Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact. * * * 3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact. The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. . Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest. The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas which could support such growth and could potentially enhance the environmental quality. As far as possible, natural patterns of gradual and dispersed runoff will be maintained. Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported. Marine Resources Areas of Particular Concern Site-specific Designations Lignumvitae Key Aquatic Preserve. * * * Management Policies: B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve. * * * 3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary. Management Policies: * * * B. Development activity on Key Largo, including dredging and filling, urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies A. These biotic communities will be preserved to the fullest extent possible. Natural Vegetative Resources The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy. Natural Vegetation Management Policies In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest. Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals. While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1990.
Findings Of Fact 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 The issue for consideration at the hearing was whether the Respondent, Roger Harloff, should be issued a consumptive use permit to withdraw and use ground water from the wells on his property, and if so, in what amount and under what conditions.
Findings Of Fact Respondent, Roger Harloff, owns several farms in southeastern Manatee County, Florida which, taken together, make up an irregular 8,500 acre tract located approximately 2 1/2 miles north of the City of Sarasota's Verna Wellfield. Mr. Harloff grows vegetables on much of this tract, of which approximately 1,500 acres is devoted to tomatoes. This tomato crop is the prime crop produced by Mr. Harloff, and provides the raw material for the Harloff packing plant which is dependent upon the tomato crop in order to stay in business. Mr. Harloff also operates a plant nursery at which he produces many if not most of the seedling plants utilized in his vegetable growing operations. In order to be economically feasible and remain operative, Mr. Harloff must farm approximately 3,800 acres during the Spring growing season and approximately 3,000 acres during the Fall. These acres are made up of tomatoes and other vegetables. The packing plant and the plant nursery are dependent upon the farm operation and without adequate water, the farm operation cannot be successfully carried on. In September 1988, Mr. Harloff applied to the District for a consumptive use permit to withdraw water from twelve wells located on his property, requesting an annual average rate of 12,995,606 gpd, and a maximum daily rate of 47,520,000 gpd. The consumptive use permit application filed by Mr. Harloff was assigned District Number 204467.04. After evaluation of the application in conjunction with its needs and policies, the District issued a staff report and proposed agency action on the application which recommended issuance of the permit authorizing water to be drawn from the 12 wells at a rate approximating that requested in the application. Thereafter, the City of Sarasota, which operates the nearby Verna Wellfield, considering that the proposed withdrawal would have a substantial adverse impact on its wellfield operations, filed a Petition for Formal Administrative Hearing objecting to the issuance of the permit to Mr. Harloff. Though Mr. Harloff has owned much of the property which make up the 8,500 acre tract in question here, at the time of his application, he did not own, but had under contract, a substantial portion. He closed on the purchase of that remainder after he received notice of the District's intention to issue the permit in question but prior to the City's filing its Petition For Formal Hearing. The purchase price of the property in question was $9,000,000.00 which carries an interest payment on the financed portion of $52,000.00 per month. The wells pertinent to the issues in this proceeding are as follows: # Cons. Depth Cas. Lin. Diam. Cap. Loc. 1 1978 1185' 200' 220-490' 12" 2000 gpm SE 2. 1988 1320' 210' 210-480' 16" 3000 gpm SE 9. 1974 1130' 390' 16" 3000 gpm C 10. 1976 1232' 231' 283-400' 16" 3000 gpm NW 11. 1979 1120' 210' 260-480' 12" 2000 gpm NW 12. 1976 1180' 480' 12" 2000 gpm SW 3. 1989 1434' 460' 16" 3000 gpm SE 5. 1989 1374' 610' 16" 3000 gpm W 8. 1989 1292' 548' 16" 3000 gpm NW 13. 1989 1310' 635' 16" 2000 gpm NE Well No. 8 was used as the pump test well for the constant rate discharge test and Well No. 13 was the deep observation well for that test. Wells 1, 2, 9, 10, 11, and 12 have all been previously permitted by the District and No's 1, 2, 9 and 10 are currently permitted under two other permits, while 11 and 12 were permitted under a different permit. Wells No. 3, 5, 8 and 13 have been authorized for construction but not, as yet, to produce water. Wells 4, 6 and 7 have not yet been constructed. The intention is to drill them to a depth of 1,300 feet and case them to 600 feet. Each will have a pump capacity of 3,000 gpm. Number 4 will be in the southeast portion of the tract, number 6 in the central portion, and number 7 will be located just north of number 6. Wells 1, 2, 9, and 10 currently have a combined permitted maximum daily rate of 13,680,000 gallons under permits number 204467.03 for 1 and 2, and 204630 for 9 and 10. The former was issued on December 29, 1987 and will expire on December 29, 1993, and the latter, issued on October 7, 1981, will expire on that same day in 1991. The permit previously issued for wells 11 and 12 authorized withdrawal at a maximum daily rate of 2,160,000 gallons. That permit, number 204374, expired on September 9, 1986 and was not renewed. After the City filed its Petition challenging Mr. Harloff's proposed permit, Mr. Harloff, on June 26, 1989, filed an amended application to withdraw water at an average annual rate of 10.99 mgd and a maximum daily rate of 48.96 million gallons. This amended application refers to an additional proposed well, Number 13. The District, however, had previously approved wells 3 - 8 and 13, and pursuant to this authorization, wells 3, 5, 8, and 13 were built. Mr. Harloff submitted additional amendments to his application on August 7 and 9, 1989. The former requests a seasonal average daily rate of 25.34 mgd and a seasonal maximum daily rate of 32.79 mgd. The latter requests a seasonal average rate of 26.18 mgd, an annual average rate of 15.18 mgd, and a seasonal maximum rate of 31.56 mgd. In that regard, a seasonal rate is the same as an annual rate, (average or maximum) when applied to a growing season as opposed to a year. The additional amendments to the application were evaluated by District staff who, on August 18, 1989, issued a revised staff report and a proposal to issue to Mr. Harloff a consumptive use permit authorizing an average annual withdrawal of 11.1. mgd, an average seasonal withdrawal of 15.6 mgd, and a seasonal maximum withdrawal of 20.1 mgd. The proposed permit also contains terms and conditions which, the District contends, will, inter alia, permit Mr. Harloff to withdraw more water than he is currently authorized without additional adverse impact on the City's Verna Wellfield. It is to some of these terms and conditions that Mr. Harloff objects. Since the issuance of the revised staff report and intent to issue, the parties have negotiated on the various terms and conditions in question and have agreed to some and the amendment of others. Mr. Harloff has no objection to conditions number 1, 2, 3, 7 - 14, 23, 24, 26, 28 - 30, 32, and 34 & 35. The parties agree that other conditions, as indicated herein, should be amended as follows: Condition 19, on the third line, should be changed to read, " up to 20 inches tapering to 12 inches." Condition 22, on the second line, should be changed from "30 days" to "10 days". Condition 25, on the first line, should be changed from "within 60 days" to within 120 days". Condition 31, on the third line, starting with "following month" should be changed to "following months: January, April, July and October". Also, under Sampling Frequency, "Monthly" should be changed to "Quarterly". Condition 33, on the ninth line, insert the work "economically" before the word "feasible" in the phrase "specific operation and irrigation improvements are feasible". Mr. Harloff objects to conditions 4, 5, 15 - 17, 20 & 27. He does not object to the proposed new standards for new wells. Taken together, the parties then disagree only on the requirement for abandonment or refurbishment of existing wells and the quantities of water Mr. Harloff will be allowed to draw. The City supports the District's position on both issues. The City of Sarasota owns and operates a public water system to serve between 50 to 75 thousand people located in Sarasota County. The primary source of water for this system is the Verna Well field which is also owned by the City and which accounts for approximately 60 percent of the City's water needs. The City also operates a reverse osmosis, (R.O.) water desalinization facility, and has back-up wells at St. Armond Key and at the Bobby Jones Wellfield. The Verna Wellfield is located about 17 miles east of the Sarasota city limits on approximately 2,000 acres of land in northeastern Sarasota County. It consists of two tracts of land: Part "A", which is approximately 1/2 mile wide by 4 miles long; and Part "B", which is approximately 1 mile square located about 500 feet southeast of Part "A". The Verna Wellfield's permitted allocation is based on whether the R.O. facility is producing at capacity. If it is, the Verna daily allocation is 7 mgd, and if not, 9.5 mgd. The R.O. facility's capacity is 4.5 mgd and the backup wells have a capacity of 1.7 mgd. The wellfield contains 39 permitted production wells, 30 of which are in Part "A" and 9 of which are in Part "B." One of them, well 30, is currently inactive. The wellfield has been in operation as a part of the City's public water system since September 1966. When the Verna Wellfield was constructed in 1965-1966, its original design specified casing on most wells down to 140 feet with pump bowl settings at 125 feet. Each pump was to have a total dynamic head, (TDH) of 200 feet. Over the years, the City has decreased the TDH of the pumps at Verna from 200 feet to 175 feet. This has resulted in a reduction of the pumps' ability to produce water with sufficient pressure to carry it to the discharge point. This decline has been caused by an increase in withdrawal of water regionally, and not solely because of withdrawals from the Verna Well field. Verna is impacted by the use of water outside the boundaries of the wellfield. The City has an ongoing program calling for the refurbishment of 2 to 3 wells per year at the Verna Wellfield. It is the City's intent to convert the pumps to 200 feet TDH on all well refurbishments in the future. In August 1977, a program requiring permits for the consumptive use of water was implemented in both Sarasota and Manatee Counties. At that time, the Verna Wellfield had a production rate of 6.9 mgd annual average daily rate. On January 6, 1978, the City applied for a permit for Verna and on April 3, 1979, the District issued permit number 27804318 to allow the City to draw water from the Verna Wellfield. The City applied for a renewal of that permit in October 1983 and thereafter, in January 1985, the District authorized the continued withdrawal of water from Verna by the issuance of permit 204318 which, at Condition 18, placed limitations on the City's use of water from the wellfield. Specifically, the permit limited withdrawals from Verna to: ...6,000,000 gallons per day average and 7,000,000 gallons per day maximum, except during those times when ... [the R.O. process is reduced or to facilitate maintenance or repairs]. At such times, ... [withdrawals) may be increased to provide additional supplies not to exceed 8,000,000 gallons per day average annual and 9,500,000 gallons per day maximum. This condition clearly provides for additional supplies to be drawn to increase the Verna Well field production to a total of 8,000,000 and 9,500,000 mgd, respectively, not in addition to the regular permitted amount, by those quantities. The City's permit has been neither suspended nor revoked nor is any violation enforcement action currently under way. The current permit expires January 9, 1991. The water pumped from the Verna wells is held in a 1,000,000 gallon reservoir at the wellfield. This reservoir, which is topped at approximately 22 to 23 feet, electronically controls the pumping activity at the well field by turning on and shutting off pumps, in series, as the water level in the reservoir rises and falls. The water, when needed, is transmitted to another reservoir near the City's treatment plant in downtown Sarasota by gravity flow through a 30" diameter, 92,000 foot long pipe. The flow rate is approximately 5,000 gpm normally. When the treatment plant needs more water, a pump at the well field forces the flow at a rate of between 7,200 to 8,200 gpm, depending upon the level of water in the receiving reservoir. A flow of 8,200 gpm would draw 11.8 mgd from the wellfield. The operating capacity of the Verna Wellfield, in August 1988, was 17.9 mgd. Harloff's experts assert, and there is no concrete evidence to rebut it, that if all wells at Verna were pumping during a 24 hour period in May 1989, the reservoir could have been maintained at full level. However, though there is a manual override of the automatic reservoir/pump control system, it is unrealistic and unwise to expect full production on a 24 hour basis for any lengthy time period. Water under both Mr. Harloff's property and the Verna Well field is found at various levels known by different names. These include, in order of descent, the Surficial Aquifer, the Intermediate Aquifer, the Upper Floridan Aquifer, and the Lower Floridan Aquifer. The Surficial Aquifer extends from the surface down to between 20 and 60 feet below the surface. A 20 foot thick bed of clay separates the water in this aquifer from that in the aquifer immediately below it, the Intermediate Aquifer, which extends from approximately 80 feet down to approximately 420 feet below the surface. In the lower part of the Intermediate Aquifer, permeability decreases until a confining unit separating the bottom of the Intermediate Aquifer from the top of the Upper Floridan Aquifer is formed. There is such a confining unit between 420 and 500 feet. There is no well-defined confining unit between the Upper and Lower Floridan Aquifers. There is, however, a substantial difference in the transmissivity in each zone. "Transmissivity" is defined as the amount of water that will exist through a section of the aquifer that is the same width from the top to the bottom. The lower the transmissivity rate, the deeper the cone and the narrower the radius of effect. The higher the rate, the shallower the cone and the broader the radius. The Lower Floridan Aquifer has an extremely high transmissivity. Its top is found at a range of from 1,050 to 1,200 feet below the surface on Mr. Harloff's property. The water from the Upper Floridan Aquifer is of higher quality than that in the Lower. It is more readily usable for drinking than that in the Lower, but the Lower water is quite acceptable for agricultural purposes. What confining layer exists between the Upper and Lower Floridan Aquifers is made up of relatively impermeable anhydrides and gypsum. Because of this, there is little likelihood of the highly mineralized water from the Lower Floridan Aquifer rising into the better quality water in the Upper. If, therefore, water for agricultural purposes is drawn from the Lower Floridan Aquifer, with its high transmissivity and narrower cone radius, and if the wells utilized to procure this water are cased down to within the Lower aquifer, there is little chance of a negative impact on the better quality water, used for drinking by the City, within the Upper Floridan and Intermediate Aquifers. Mr. Hardin, an expert geologist and hydrogeologist testifying for Mr. Harloff, concluded, utilizing certain commonly accepted computer models, that Mr. Harloff's requested additional withdrawals would not have a significant effect on the Verna Wellfield's ability to produce water sufficient for the City's needs. This conclusion was based on 1989 seasonal use figures including an average rate of 21.95 mgd, a maximum rate of 27.04 mgd, and a maximum rate of 29 mgd under a "run time" calculation and the fact that during that period, the City was able to pump at least its permitted quantity from its wells at Verna. The City and the District do not accept this conclusion as reasonable, however, because, they claim, the withdrawal figures cited are not meter readouts but estimates based on the number of acres farmed and the number of pump operating hours during the period in question. The City's experts contend the data used by Hardin and Prochaska in their opinions is not that which other experts in the field would reasonably rely upon. They do not appear to be unrealistic, however, and, therefore, Mr. Hardin's opinion is accepted as but one factor to be considered. On the other hand, Mr. Anderson, also a Harloff expert hydrogeologist, claims the requested withdrawals would result in only an additional 1.7 foot drawdown in the Upper Floridan Aquifer underlying the Northeast corner of the Verna Well field. To be sure, this is only one small portion of the wellfield in issue. There has, however, been a continuing history of declining groundwater levels in this area over the past several years. After the 1975 drought, the City started to experience declining water levels at Verna which, because of the reduction in ability to produce water, required a lowering of the pump elements in some wells, and also caused the City to develop an R.O. facility in an effort to reduce dependence on well water. This drop in capability occurred again during the 1985 drought and this time the City modified the pump motors to shut off prior to cavitation and initiated a schedule of operating times for wells, so that water is drawn from different and geographically separated areas in a sequence designed to allow periodic regeneration of an area's supply. Nevertheless, water supply remains a concern at Verna, and the problems previously experienced continue to occur during periods of drought. In May 1989, the Verna Wellfield was periodically "unable" to meet it's short term peak demands at times even though all operating wells were pumping. This means that at the times in question, more water was being drawn from the Verna reservoir than could be replaced by pumping activities. It does not mean that the reservoir ran dry and water could not be furnished to the treatment plant. However, this condition is serious and indicative of a more serious shortage in the future unless appropriate safeguards are instituted. Mr. Balleau, the City's expert in hydrology and hydrogeology, and the District's experts all believe the Verna Wellfield is in trouble. It is operating well beyond its design range and the imposition of additional demands on it would seriously and adversely affect its ability to produce water. This position is supported by the facts and found to be accurate. There appear to be several options open to the City to contend with the Verna problem potential. These include: drill deeper wells at Verna to tap the Lower Floridan Aquifer. (This will produce the lower quality water found there and require additional treatment facilities. construct a linear wellfield along the pipeline from Verna to the treatment facility. (This will require additional permitting to draw the water, high construction and operating costs, and still result in low quality water requiring treatment. redevelop the downtown wells currently supplying the R.O. facility. (This will require satisfaction of regulatory issues, adversely impact on the users of the upper aquifers, possibly result in poor water quality and in contamination from nearby landfills.) develop a new well field southeast of Verna. (This will experience regulatory issues and high construction costs, with an unknown water quality result.) buy water from Manatee County. (This is expensive, may result in transmission and compatibility problems, and would be only a short term solution. lower pump assemblies; replace existing pumps and modify the pump circuits. (These are all unreliable, short term solutions of minimal benefit.) Mr. Harloff and the City/District disagree on the appropriate amount of water needed for the successful growing of the crops produced by his operations. Both agree, however, that the heaviest demands for water come in the spring growing season including April and May. Tomatoes require the most water. Peppers require nearly as much. This is because the short root systems require a higher water table in the soil to supply needed moisture. In its analysis of Mr. Harloff's application, the District, referring to tables developed for the purpose of allocation and relating to Harloff's watering history during the period from August 15, 1988 to June 7, 1989, subtracted the fall season recorded application of 20.7 acre-inches from the total 10 month figure of 50.92 acre-inches and concluded he would need 30.22 acre-inches for peppers during the spring, 1989 season. Unless shown to be totally unreasonable, however, (not the case here), the applicant's water need figures should be accepted. Mr. Harloff's operation constitutes an important part of Manatee County's agricultural economy, and agriculture utilizes 68.9 percent of the land in the county. Agricultural products sold in Manatee County in 1987 were valued at $145,655,000.00, which ranked Manatee County third among all Florida counties in vegetable production. Agriculture is the fourth largest employer in Manatee County, employing an average of 4,692 people per month. Through his farm operation alone, Harloff employes as many as 1,050 people, with 200 employed on a full-time basis. Experts estimate that the loss of the Harloff operation would cause a reduction of between 16 and 18 million dollars in agricultural sales in the county with an additional loss in jobs and income to his suppliers. This estimate is not at all unreasonable. Florida produces approximately 95 percent of all tomatoes grown in this country for the fresh tomato market during the winter growing season. Tomatoes are the single largest vegetable crop grown in the state and accounted for 39.7 percent of the total value of vegetables produced in Florida during the 1987-1988 growing season. Mr. Harloff produced 4.8 percent of the total shipment of tomatoes from this state during that period. Water, primarily through irrigation, is an indispensable portion of the farming operation for this crop. Mr. Harloff currently irrigates the majority of his non-citrus crops by use of a "semi-closed ditch irrigation system", as opposed to a "drip system." The drip system is considerably more efficient than the semi-closed system having an efficiency rating, (amount of water actually used by the plants) of between 80 to 90 percent, as opposed to 40 to 60 percent for the other. While Mr. Harloff could reduce his water needs considerably and achieve substantial savings on pump fuel by conversion to a drip system for all or a part of his crops, such an undertaking would be quite costly. One of the conditions proposed by the District for the approval of Harloff's permit, as amended, is the refurbishment of several of the existing wells utilized by Mr. Harloff to make them more efficient and to promote the withdrawal of water from the Lower Floridan Aquifer, in which there appears to be adequate water and from which the Verna Well field does not draw. Currently, Mr. Harloff has seven wells which do not meet the standards of this proposed condition. They are not drilled to 1,300 feet below mean sea level and are not cased to 600 feet. To bring these wells into compliance, they would have to be drilled to the 1,300 foot level, or to a level which has a specific capacity of 400 gpm, and the casings in each would have to be extended to 600 feet. Extending the casings would be a complicated procedure and Harloff's experts in the area cannot guarantee the procedure would successfully achieve the desired end. Assuming the retrofit was successful, the cost of the entire process would be approximately $15,000.00 to $16,000.00 per well. In addition, the process would, perforce, require reducing the diameter of the well from 10 to 8 inches, thereby necessitating increasing the pump capacity to produce sufficient water. The cost of this is substantial with an appropriate new pump costing somewhere between $10,000.00 and $15,000.00 each. Consequently, the anticipated cost of bringing the existing wells up to condition standards would be between $25,000.00 to $31,000.00 per well, while the cost of constructing a new well is between $40,000.00 and $50,000.00 per well. Mr. Harloff feels it would be more prudent for him to replace the existing wells rather than to retrofit them. This may be correct. Harloff experts also claim that extending the casings on the existing wells down to 600 feet would not provide a significant benefit to the aquifer nor cause any significant reduction in drawdown impact at Verna. The District and City experts disagree and, taken on balance, caution and the interests of the public indicate that a conservative approach is more appropriate. While Mr. Harloff proposes to convert the areas served by wells 1, 9, 11, and 12 to the growing of citrus which requires much less water than tomatoes, this would not be sufficient mitigation to offset the need for some modification if large amounts of water will still be drawn. The entire area under the District's jurisdiction has been experiencing a water shortage due to a lack of rainfall. As a result, in June 1989, the District adopted a resolution identifying an area, including the area in question here, as a "water use caution area." This was done because the Floridan Aquifer has been subjected to large seasonable drawdowns of the potientiometric surface, the level to which water in a confined aquifer can rise in a well which penetrates that acquifer. This drawdown is directly related to increased water use in the area, much of which is for agricultural purposes. As a result of the District's action, special conditions on well construction for consumptive use applicants have been imposed on a permit by permit basis to insure, as much as possible, that the applicant uses the lowest quality water appropriate for his intended purpose. These conditions are not unreasonable. While accepting the District's and City's conclusion that his wells, if permitted, would have some impact on the Verna Wellfield, Mr. Harloff does not concede that the impact is significant. Specifically, the difference in impact resulting from an increase from his currently permitted use of 13.68 mgd seasonal maximum and his requested use of 31.56 mgd seasonal maximum for wells 1, 2, 9, and 10 would be a maximum increased drawdown of 1.1 feet at the Intermediate aquifer and 1.8 feet at the Upper Floridan Aquifer. Both figures relate to that portion of the wellfield found in the northeast corner of Part A. If the anticipated usage for crops predicted by Mr. Harloff's experts for the spring of 1989 is accurate, the drawdown would be 0.2 feet for the intermediate aquifer and 0.4 feet for the Upper Floridan Aquifer measured at the northeast corner of Part B of the Verna We1lfield. Harloff's experts contend that additional impacts for the spring of 1989 included, the increased usage will not have a significant effect on Verna's ability to produce its permitted daily maximum withdrawal of 9.5 mgd. While this is an educated speculation, it should be noted that during May 1989, the Verna field was able to produce up to 8.3 mgd without using all wells during any 24 hour period. This does not consider, however, the problems encountered by the City as indicated by the wellfield personnel, and the fact that some of the City wells are not pumping water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Roger Harloff be issued a consumptive use permit, No. 204467.04, as modified, to reflect authorization to draw 15.18 mgd annual average, not to exceed 31.56 mgd seasonal maximum, conditioned upon compliance with the conditions found in the conditions portion of the permit, as modified to conform to the quantities as stated herein, and to include those requirements as to acre-inch and crop-acre limitations, well usage and abandonment schedules, well modification standards, and record keeping, as are contained therein. RECOMMENDED this 5th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-0574 The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: City of Sarasota, joined by the District 1 & 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 8-12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14-22. Accepted and incorporated herein. 23-25. Accepted and incorporated herein. 26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29-33. Accepted and incorporated herein. Not a Finding of Fact but a statement of party position. & 36. Accepted. 37. & 38. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on opponent's satisfaction of its burden of proof. 42-44. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misstatement of fact. Water service was never interrupted. The deficiency was in the City's inability to keep its wellfield reservoir filled. 47-54. Accepted and incorporated herein. Accepted and incorporated herein. Rejected for the reasons outlined in 41. 57-62. Accepted and incorporated herein. 63. Rejected for the reasons outlined in 41. 64-66. Accepted and incorporated herein. Rejected for the reasons outlined in 41. Rejected. & 70. Accepted and incorporated herein. 71. & 72. Accepted and incorporated herein. 73. Accepted and incorporated herein. 74 & 75. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Rejected. Accepted. Irrelevant. 81-84. Rejected. 85. & 86. Accepted and incorporated herein. 87 & 88. Accepted and incorporated herein. 89. Accepted and incorporated herein. 90 & 91. Accepted and incorporated herein. 92. & 93. Accepted and incorporated herein. FOR THE RESPONDENT: Roger Harloff 1-9. Accepted and incorporated herein. 10-13. Accepted and incorporated herein. 14 & 15. Accepted and incorporated herein. 16-25. Accepted and incorporated herein. 26-28. Accepted and incorporated herein. 29 & 30. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not proven. 35 & 36. Accepted and incorporated herein. 37 & 38. Accepted and incorporated herein. 39-41. Accepted and incorporated herein. 42 & 43. Accepted and incorporated herein. 44. Accepted. 45 & 46. Accepted and incorporated herein. 47 & 48. Accepted and incorporated herein. 49. Accepted. 50 & 51. Accepted and incorporated herein. Accepted. Accepted. Accepted. & 56. Accepted and incorporated herein. 57. Accepted. 58-60. Accepted and incorporated herein. 61 & 62. Accepted and incorporated herein. Rejected as unproven. Accepted. Accepted and incorporated herein. Accepted. 67-68. Accepted. Not a Finding of Fact but an interpretation of party po Accepted. Rejected. 72 & 73. Accepted. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte, Gilbert and Gramovot, P.A. 705 East Kennedy- Blvd. Tampa, Florida 33602 Edward B. Helvenston, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue On June 7, 1991 the Department of Environmental Regulation (DER) released its intent to issue Permit No. DC05-194008, authorizing Florida Cities Water Company (FCWC) to construct a 300-acre restricted public access spray irrigation system for the land application of treated domestic wastewater (Sprayfield Permit). And, on August 6, 1991 DER released its intent to issue Permit No. MS05-194894, relating to stormwater management and management and storage of surface waters (MSSW Permit) for the sprayfield site. Petitioners Brevard Groves, Inc. and H & S Groves, Inc. (Groves), Parrish Properties, Inc., Parrish Management, Inc. (Parrishes), Atico Financial Corp. (Atico) and David and Eleanor Shreve (Shreve), each requested a formal administrative hearing challenging the issuance of the sprayfield permit. Groves requested a hearing challenging the issuance of the MSSW Permit. The ultimate issue is whether FCWC is entitled to these permits.
Findings Of Fact FCWC is a private utility company, with headquarters at 4837 Swift Road, Suite 100, Sarasota, Florida, 34231. FCWC's Barefoot Bay Wastewater Treatment Plant (the WWTP) provides water and wastewater service to the Barefoot Bay development in southern Brevard County, Florida. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900, is an agency of the State of Florida which regulates domestic wastewater treatment and disposal facilities and permits their construction and operation. For domestic wastewater projects, DER is also charged with reviewing applications for stormwater management and management and storage of surface water pursuant to an operating agreement between DER and St. Johns River Water Management District. David and Eleanor Shreve are beekeepers who live approximately a quarter-mile from the proposed sprayfield. They maintain beehives in the groves and woods surrounding the proposed site. The remaining Petitioners own citrus groves that are adjacent to, or in the immediate vicinity of the proposed site. These groves are producing and are actively maintained. The WWTP has a treatment capacity of 0.9 million gallons per day (MGD). As of July, 1990, the WTTP was treating and disposing of effluent from approximately 4,200 residences in the Barefoot Bay development. At buildout, within the five-year life of the Sprayfield Permit, the WWTP will serve 5,000 residents, and will generate approximately 0.6 MGD of wastewater. Disposal of treated effluent is presently achieved by a 40-acre sprayfield, storage ponds and direct discharge of pond overflow to the San Sebastian Drainage District Canal (Canal). In 1986, DER issued FCWC a warning notice to the WWTP regarding an unlawful discharge to the Canal. FCWC met with DER to discuss options to correct the discharge. In 1988, FCWC entered a Consent Order that would allow FCWC to discharge treated effluent into the Canal until a deep injection well could be built for alternative disposal. FCWC also discussed other alternatives with DER, such as golf course irrigation. The Consent Order was amended in 1991 to provide for land application in lieu of deep injection. In accordance with the amended Consent Order, FCWC has submitted monthly monitoring reports to DER, for the WWTP and for the storage (percolation) ponds. DER has never issued a notice of violation to FCWC for failure to comply with monitoring in the Consent Order. The Site The proposed sprayfield site is divided into two large tracts, the "northern parcel" and the "southern parcel." The site is primarily citrus groves. Although some citrus trees were damaged by a freeze in recent years, most are still viable. Most of the areas between the trees and limited areas without trees are covered with dense grasses and weeds. The site, and the surrounding groves, have been significantly altered to provide sufficient drainage for citrus trees, which require well-drained conditions. The area is covered by shallow ditches (swales), between mounded rows of earth comprising beds for the trees. These citrus mounds, created by soil cast up during excavation of the swales, occur on 60-foot centers and rise 2 1/2-3 feet above the bottom of the swales. The swales have pipes at each end, which discharge into an agricultural collection ditch or the Canal. Each block of citrus is surrounded by a collection ditch some 8-10 feet deep. All collection ditches ultimately discharge into the Canal, which borders the site on the north and is approximately 20 feet deep and 100 feet wide. The collection ditches and Canal prevent the entrance of offsite surface water run- off into the site and receive surface water run-off and groundwater seepage from the site. The Sprayfield Project The project is proposed in two phases. Phase I meets total annual effluent disposal needs of 0.55 MGD, using both the proposed sprayfield and the existing 40-acre sprayfield, which will continue in operation for both phases of the project. Phase II meets the total annual effluent disposal needs of 0.6 MGD at build-out. This results in an average annual application rate of 0.54 inch/week or approximately 28 inches per year on the proposed sprayfield. The project is designed to eliminate the current discharge to the Canal. The effluent will be given secondary treatment with basic disinfection. The treated effluent will be pumped from the WWTP to storage ponds and then to the proposed sprayfield. The existing ponds will be retrofitted as storage ponds for Phase I. An additional storage pond will be constructed at the proposed sprayfield for Phase II. The spray irrigation system will operate primarily with four traveling gun sprinklers. Two sets of fixed-head sprinklers will also be used for the two small triangular portions of the site. The traveling sprinklers will be operated for approximately 5.9 hours/day during Phase I and 6.5 hours during Phase II. The four traveling sprinklers will run simultaneously on four of the thirty-three travel lanes (tracks) located between the swales covering the site. Ordinarily each track will be sprayed every eighth day. To make up for days when irrigation is not possible, additional disposal capacity can be obtained by operating the sprinklers for extra shifts on tracks not previously irrigated that day. The site will be mowed regularly, and any accumulated grasses or debris will be removed. Any areas presently in weeds, or the areas not covered by vegetation are reasonably expected to fill in with dense grasses when irrigation commences. Maintaining the grass cover in the swales will prevent erosion of soil and debris into the swales and reduce the need for maintenance of clogged swale outlet pipes. The system is designed and will be operated to avoid ponding or direct surface run-off of sprayed treated effluent. However, there may be some very limited potential for droplets of treated effluent clinging to vegetation being washed into the swales by a heavy storm event immediately following an application. Therefore, the sprinklers will not be operated when the water table is closer than four inches from the bottom of the swales. Operators will know when to spray by reading automatic groundwater elevation monitoring gauges installed in several places throughout each block of citrus, including the middle. In addition, an automatic device will shut off sprinklers during a rainfall, so that no significant amount of treated effluent will leave the site mixed with stormwater. The site is bordered on three sides by groves and on one side by undeveloped vacant land. The width of the proposed buffer zone from the sprayfield wetted area to the site property line is at least 100 feet, as required in Rule 17-610.421(2), F.A.C., and is substantially wider for extensive lengths of the project border. The buffer is approximately 130 ft. wide on the eastern boundary of the northern parcel, approximately 250 to 235 ft. wide on the western boundary of the northern parcel, and approximately 225 to 160 ft. on the western border of the southern parcel. The distance between the wetted area and adjacent property owners' boundaries is much greater than 100 ft. for other portions of the sprayfield borders due to linear features that provide additional buffering. It is over 200 ft. from the wetted area to the nearest property owner on the northern border of the northern parcel because of the San Sebastian Canal, and 160 ft. on the southern border of the northern parcel and the southern and eastern borders of the southern parcel because of the 60-foot wide Micco Road right-of-way. Aerosal Drift and Other Off-Site Impacts While Petitioners allege that their groves would be contaminated by aerosol drift from the site, they presented no expert or other competent, substantial evidence on the extent or volume of such drift. FCWC air modelling expert, Dr. Robert Sholtes, used the EPA Industrial Source Complex Model (ISC), the most commonly used predictive model in the air pollution community, to evaluate the project's aerosol drift. While the sprinklers are planned to be operated a maximum 6.5-hour shift, a conservative 7.0-hour shift was used. Other data inputs to the ISC Model were hourly windspeeds at the Daytona Beach weather station for five years; sprinkler nozzle size and pressure; and droplet size, distribution and settling rates obtained from the American Society of Agricultural Engineers. The model yielded the annual average deposition of sprayed effluent in grams per square meter (gm/m2) outside the wetted area for one sprinkler as it moves along its track. The accumulated deposition off the site property line, considering operation of all tracks, can be predicted using these results. Because heavy deposition of droplets settles out fairly rapidly, the aerosol from tracks farther into the site does not significantly affect the maximum impact shown for one track. Due to the prevailing east and west coastal winds, heaviest deposition will occur off the eastern and western property line of the site. The volume of treated effluent that will be blown offsite is not substantial. The greatest volume is approximately 1000 millimeters/square meter/year (ml/m2/yr) off the eastern property line out to approximately 50-75 feet, and 500 ml/m2/yr off the western property line out to approximately 75 feet. A maximum of 100 ml/m2/yr is predicted and a maximum of 50 ml/m2/yr is predicted off the southern and northern lines, respectively. In practice, volumes of aerosol drift off-site will be below the predicted levels in areas where trees occur in the buffers. Most significantly, there are existing rows of citrus trees along the eastern border of the northern parcel within the buffer area, which is the area of heaviest predicted drift. In addition, aerosol drift will be minimized by operating procedures. Wind speed and direction will be monitored at the site. If the wind is over 20 miles per hour, there will be no spraying. For winds of lesser speeds, the spray tracks on the edges of the sprayfield will not be used during a strong directional wind, e.g., for a wind blowing east, the track on the eastern border will not be utilized. The tracks are on approximately 240-foot centers. Therefore, elimination of spraying for the track on the edge of the site will have the effect of withdrawing the aerosol drift deposition pattern 240 feet further into the sprayfield. Considering that the farthest extent of the maximum 1000 ml/m2/yr levels of drift is 75 feet, such a program will be very effective in minimizing drift. Because no motors will be required to operate the site, significant noise is not expected. The treated effluent will not contain significant amounts of odor-causing constituents, and odors are not expected. Finally, lighting is not planned on the proposed sprayfield, so this is not expected to be a source of offsite impact. Assurances for Proposed Application Rate A determination of the site's ability to accept treated effluent at the maximum proposed application rate of 0.54 inch/week without adverse effects was based on (1) the hydraulic loading capacity of the site to receive the applied water, considering soil permeability and other physical site conditions, and (2) the allowable nitrogen loading rate, considering the ability of the vegetation to uptake the nitrogen contained in the treated effluent. The U.S. Environmental Protection Agency (EPA) publishes a general manual for technical assistance in designing land application systems across the United States. This manual, "Land Treatment of Municipal Wastewater - Process Design Manual" (EPA Manual), is cited as a general technical guidance source in DER Rule 17- 610.300(4), F.A.C. The EPA Manual contains formulae for the calculation of both the hydraulic loading capacity and the allowable nitrogen loading rate. The EPA Manual recommends use of the more restrictive of the hydraulic loading capacity or the allowable nitrogen loading rate as the hydraulic loading rate for the project. Hydraulic Loading Capacity. A hydraulic loading capacity of 0.63 inch/week for the proposed sprayfield was determined based on field exploration, laboratory testing, hydrogeological conditions and engineering evaluation, summarized in a report included in the application. This 0.63 inch/week hydraulic loading capacity is above the maximum proposed application rate of 0.54 inch/week and substantially below the maximum rate of 2 inches/week allowed by DER Rule 17-610.423(4), F.A.C. EPA Equation 4-3 for hydraulic loading capacity balances the volume of water that enters the site with the volume of water that leaves the site. Values in Equation 4-3 are evapotranspiration, which is the water released to the atmosphere from soil surfaces and by vegetation (ET); precipitation rate (rainfall); and Pw, which is water removed by vertical percolation downward through the soils. Due to the high vertical permeabilities of the sandy soils at this site, unrefined use of EPA Equation 4-3 would give a very high hydraulic loading capacity for this project, on the order of 10 times that proposed by FCWC. Therefore, a more detailed input/output water balance formula was used to determine annual hydraulic loading capacity (applied effluent in the formula) of 0.63 inch/week: rainfall + applied effluent + groundwater inflow = evapotranspiration, + groundwater outflow + surface run-off + evaporation + irrigation losses. The average annual rainfall, based on data from the U.S. NOAA weather station at Melbourne, is 48.17 inches. Due to the isolating effect of the deep ditches surrounding the site, groundwater inflow is considered to be so negligible that it was not assigned a value for the equation. ET, based on standard scientific references, is 45 inches/year for citrus trees. An additional 20 inches/year loss is attributable to grasses covering soil surfaces. In lieu of vertical percolation, groundwater outflow laterally through the surficial aquifer was projected to be 1.8 inches per year, based on hydraulic conductivity and soil permeabilities for the site. Surface run-off of stormwater was estimated to be 10 inches per year. Irrigation losses were estimated at 15% of the amount of applied effluent. Pond Storage Capacity. The proposed application rates for the two phases of the project are annual averages. The volume of storage needed for occasions when conditions preclude application must be determined. DER requires the calculation of storage by analytical means for the 10-year rainfall recurrence interval, using 20 years of rainfall data, and accounting for all water inputs on a monthly basis, using site-specific data. A minimum storage volume equal to three days application is required. Rule 17-610.414 (2), F.A.C. Calculations presented in the application met these requirements and showed storage needs of 8.08 million gallons (MG), or approximately 15 application days' volume, for Phase I; and 15 MG, or 25 application days for Phase II. Additional storage calculations, reflecting the monthly variations of wastewater inflow due to the seasonal population, were prepared for Phase I. These calculations reflected the same storage requirements. Petitioners' Allegations Regarding Application Rate and Storage Although they had prepared no analyses, performed no calculations, conducted no laboratory tests and undertaken only one field test (test hole for groundwater level), Petitioners' witnesses asserted that site conditions precluded successful operation of the sprayfield at the maximum proposed application rate of 0.54 inch/week. They asserted that swale pipes would plug and a clay "hardpan" at the bottom of the swales would prohibit percolation of stormwater. Thus, the swales would be full of water for long periods and further application would be precluded. They also asserted that significant volumes of treated effluent would leave the site as run-off. They alleged treated effluent would enter the swales directly from accumulation of spray and indirectly from seepage from the sides of the citrus mounds. Finally, Petitioners asserted 15 days of storage was inadequate because the site would be too wet for application for at least a month. FCWC presented testimony and evidence based on site reviews, numerous field and laboratory tests, computer modelling, and calculations that successfully refuted these allegations. Petitioners' expert in grove management and local soil conditions, Mr. Burnette, stated that extremely wet conditions required pumping of swales for weeks at a time in nearby groves. FCWC's experts asserted that the proposed sprayfield site currently has, and will continue to have, under proper maintenance, much better drainage than Mr. Burnette's groves, where regular grading of swale inverts and herbicide applications denude soil and cause erosion which plugs pipes and backs up water in the swales. In addition, unlike the situation described in Burnette's groves, the proposed site contains no swales that are lower in elevation than the collection ditches, thereby facilitating stormwater run-off. The top layer of soil comprising the citrus mounds and the swales is relatively clean sand. Petitioners' so-called "hardpan" is a slightly clayey to clayey fine sand layer which separates the upper sand from a thick layer of very clean, beach-type sand. FCWC geotechnical experts determined the clayey sand layer was 18 to 24 inches below the bottom of the swales. Without any field testing, Petitioners' expert hydrogeologist, Mr. Oros, asserted that the clayey sand layer was at the bottom of the swales. In contrast, Mr. Burnette stated that the clayey sand layer occurs four to eight inches below the bottom of the swales on the adjoining groves, where the graded swales are 10 to 14 inches deeper than the shallow swales on the proposed sprayfield site. Thus, Mr. Burnette's testimony supports the FCWC conclusion that this layer is found up to 2 feet below the swales on the proposed site. Moreover, contrary to Petitioners' assertions that the layer acts as a "hardpan", water can pass relatively freely through it and the water table will not "perch" above it. The U.S. Department of Agriculture Soil Conservation Service (SCS) reports a permeability value for this soil type of one to 12 feet per day. Dr. John Garlanger, FCWC expert in subsurface investigation and soil mechanics, conducted a field inspection of the soil and reviewed grain size distribution analyses. He determined that the permeability of the clayey sand layer is about one foot of water per day. Petitioners' expert hydrogeologist concurred that the layer could have this permeability rate. Soil is at the "wilting point" when its water content is too low for plants to transpire additional water. Soil is at "field capacity" when added water "fills up" the soil and it becomes saturated. The "water table" is the level at which the soil is totally saturated. Petitioners erroneously assert that 90% of the 0.54 inch of treated effluent will travel straight down to the water table. Instead, due to capillary action, the first foot of the sandy soil at the site can store about 0.6 inch of water between the wilting point and field capacity. If there is no rain between applications, 100% of the 0.54 inch will be transpired by vegetation out of the first foot of soil. This "resets" the soil moisture content to the wilting point in preparation for another application. If heavy rains cause the soil to remain at field capacity rather than returning to the wilting point through ET, the soil can still absorb up to 2.25 inches of water per foot, or three-fourths to one inch of water per four inches of soil, before it reaches saturation. Therefore, even if the soil is saturated up to 4 inches below the swales, the top 4 inches of soil will still absorb the 0.54 inch of treated effluent without reaching total saturation or causing any run-off. If subsequent heavy rains saturate the remaining soil and raise the water table to the bottom of the swales, the excess rainwater which falls on the saturated surface will run off as stormwater, and most of the treated effluent will remain stored within the soil. Furthermore, because the water table is proposed to be measured at centers of the blocks where, due to distance from the drainage ditches, the water table is closest to the surface, soil storage capacity across the site will exceed these projected levels. Petitioners' experts also asserted that if it rains after the 0.54 inch application, the groundwater will "mound" up below the citrus mounds, creating a hydraulic gradient or head differential (between the water table under the citrus mounds and the water table below the swales) sufficiently great to cause the treated effluent in the mound to flow toward the swales and seep into them from the sides of the citrus mounds. Mr. Golding admitted that such seepage would not occur when the groundwater table is below the bottom of the swales. Nevertheless, he opined that seepage of treated effluent would be considerable because he believed, based on opinion and experience alone, that the water table would be at the bottom of the swales or higher for at least 30 days straight in a "wet year." FCWC's experts successfully refuted these assertions. A significant portion of the treated effluent falling onto the citrus mounds will be stored in the soil as described above. The treated effluent (only applied when water level is 4 inches below the swales) that actually reaches the water table will cause only a very slight "water mound" (only 2 inches in 30 feet) which will not produce any appreciable "head" or lateral flow to the swales. On only three occasions (a total of 8 days) during the wettest year in ten did the "water mound" rise above the bottom of the swales resulting in any groundwater seepage from the citrus mounds into the swales. Thus, during the entire wettest year in ten, less than one-half of 1% (0.12 inch of the approximately 28 inches) of annual applied treated effluent, very diluted with groundwater, might seep from the mounds into the swale. Contrary to Petitioners' expert's assertion that the seasonal high water level (SHWL) was not provided by FCWC, this information was supplied in the application and was reaffirmed by calculations of Dr. Garlanger at rebuttal. The importance attached to the SHWL for this project was not adequately explained by Petitioners. FCWC experts explained that the SHWL is the average (NOT maximum) height of the groundwater during the two to six wettest months of the year. Because the water table varies throughout the year, it is the calculation of the position of the water table from month to month that is significant and is required by DER. This monthly changing water table was the basis of storage water balance calculations contained in the application. Even though the monthly storage calculation in the application meets the DER/EPA requirements, Petitioners' witnesses asserted that the application did not indicate how many days the water table would rise to four inches below the swales and thus how many days spraying was precluded and storage was required. Dr. Garlanger analytically calculated the water table beneath the site, using Darcy's Law, and known parameters at the site, such as the depths of the ditches, the geometry and relative distances, and the thickness and permeability of the soil layers. Thus, although never required for any of the 100 land application projects he has evaluated, Dr. Garlanger performed computer modelling and calculations to predict the daily level of the water table beneath the swales for both Phase I and II during the wettest year in ten. Water inputs in his model included treated effluent and daily rainfall from an actual year (1969) when rainfall reached the levels of the statistically wettest year in ten. Water losses were soil storage, ET, distribution losses, deep percolation and run-off. Treated effluent was not applied when the model predicted that the water table would be higher than four inches below the bottom of the swales and when there was significant rainfall (more than one-hundredth of an inch). This modelling predicted that 6.1 MG/11-day storage was needed for Phase I. Thus, the project as proposed has substantially more storage than needed, with a proposed 8.1 MG/15-day storage. The model produced similar results for Phase II, showing a total 10.1 MG/18-day storage need compared with the proposed 15 MG/25-day storage. Petitioners also challenged various "irrigation efficiency" figures used by FCWC experts. All water leaving a water source, in this case the WWTP, does not reach the roots of the crops for which it is intended. "Irrigation efficiency" expresses this fact as the percentage of water pumped that is used by the vegetation. In the monthly storage water balance calculations the applicant used an "irrigation efficiency" of 70% of the total applied treated effluent, which is recommended in IFAS Bulletin 247 and in the USDA, SCS, "Florida Irrigation Guide"; 15% of the applied treated effluent was attributed to "irrigation losses" in the calculations in the application to determine the hydraulic loading capacity; and Dr. Sholtes stated that data he used indicated that 94% of "the water that came out of the nozzle reached the ground" within the wetted area of the site and the remaining 6% was aerosol drift and evaporation. Petitioners' expert questioned whether an irrigation efficiency of 70%, 85% or 94% should have been used and suggested that the calculations should be redone. The expert misunderstood the terms, comparing the proverbial apples and oranges. With a 70% irrigation efficiency, 30% treated effluent is lost to the plants. Only a small portion of this 30% loss is attributable to aerosol drift and evaporation in the air. Most of the 30% treated effluent hits the ground but is still lost to the plants through evaporation of treated effluent intercepted on plant leaves, losses from the distribution system, e.g., leaky fittings at the WTTP, and percolation of water below the reach of plant roots. The "irrigation losses" (15%) in the application include all of those types of losses, except the treated effluent losses through percolation. This approximately 15% of the total treated effluent appeared as a separate value from "irrigation efficiency." Water Quality Assurances Nitrogen Loading Rate. Because nitrogen is generally the constituent of most concern for sprayfields, EPA Equation 4-4, which is intended to produce a conservative result, projects nitrogen loading possible without exceeding the groundwater standard for nitrate. Two FCWC experts calculated the allowable nitrogen loading rate. James Christopher, project engineer and expert in water quality and chemistry, adjusted the EPA equation to reflect stormwater leaving the site, which is a more technically correct refinement of the equation and has the effect of lowering the allowable rate. A "U value" (the variable for rate of nitrogen uptake by crop)of 100 kilograms/hectare/year (kg/ha/yr) was used by James Christopher. Dr. Harvey Harper, another FCWC water quality expert, an environmental engineer, who has taught numerous university courses in wastewater treatment and has been involved in scientific studies of pollution removal, also calculated the nitrogen loading rate for the annual average rainfall and the wettest year in ten. He did not adjust EPA Equation 4-4 for stormwater run-off, because Petitioners had questioned any deviations from the formula. He used a U value of 150 kg/ha/yr, because he considered a value of 100 too low to be realistic. He used the highest nitrogen value in data from the WWTP. Other values he used in the equation were nearly identical to those of Mr. Christopher. The results were an allowable nitrogen loading rate of 0.75 inch/week for a year of average rainfall and 0.93 inch/week for the wettest year in ten. These rates are substantially higher than the proposed gross hydraulic loading rate of 0.54 inch/week. Petitioners' expert, Dr. J. P. Subramani, asserted that a U value of 0 kg/ha/yr should have been used, although he admitted that a site with a U value of 0 kg/ha/yr would be bare sand devoid of vegetation. The U values of 100 and 150 kg/ha/yr used by FCWC were extremely conservative. The EPA Manual provides U value ranges for forage grasses, at a low of 130-225 kg/ha/yr for bromegrass, to a high of 400-675 kg/hayr for coastal bermuda grass. Ignoring the testimony of FCWC witnesses that the grass would be mowed and removed from the site, Dr. Subramani supported his opinion only with the unfounded contrary assertion that the vegetation on site will not be harvested and removed as a crop. Petitioners alleged that discharges from the site would contaminate surface and ground waters and otherwise adversely affect water quality; inadequate renovation of pollutants would take place in the soil; and the receiving waters were already below standards. Petitioners' experts did no studies or analyses, nor did they predict expected concentrations for any parameters for sprayed treated effluent leaving the site as surface waters or groundwaters. Petitioners' exhibits regarding water quality issues consisted of two single-day monitoring reports for the existing WWTP discharge and the Canal and a set of 1990-91 water quality report sheets for the WWTP. FCWC's expert, Dr. Harper, analyzed the project's impacts on groundwater and on surface waters (the Canal) if the treated effluent were to leave the site as surface run-off in the swales, as groundwater seepage into the collection ditches, or as aerosol drift. Based on 1990-91 water quality monitoring of the WWTP's existing treated effluent, Dr. Harper projected the concentrations of parameters of concern for the treated effluent to be sprayed at the site. Although monitoring of heavy metals is not required at the WWTP, he also projected levels for these parameters based on EPA figures and existing data from two larger domestic wastewater treatment plants. Because those two plants have contributions from industrial and commercial components not found at the WWTP, the projections substantially over-estimated heavy metals expected for the WWTP. Groundwater Impacts. Dr. Harper estimated the pollution removal efficiencies for treated effluent traveling through approximately one foot of soil by reference to the EPA Manual and a study he had performed. He then applied these efficiencies to the projected concentrations for the sprayed treated effluent. Even at maximum projected concentrations, the results showed that projected constituents would be at or better than groundwater quality standards after renovation in the soil. Thus, due to low levels of constituents of concern, including those for which no numerical standard is provided in the rules, the project will not cause groundwater water quality violations and will have no adverse effect on the biological functions in the groundwaters directly underlying the site. Contrary to Petitioners' assertions, DER witnesses stated that DER does not interpret provisions of Rules 17-600.530(4) and 17-610.310(3)(c)4, F.A.C., as requiring background groundwater samples in the application. Because research has shown that groundwater quality results for sprayfields are generally very good, DER routinely defers such sampling until after permit issuance. Thus, the groundwater monitoring plan in the application and in the draft sprayfield permit provides that all monitoring wells will be sampled to establish background water quality and results submitted to DER prior to spray irrigation. DER's expert witness in environmental engineering and wastewater land application design, Christianne Ferraro, as well as John Armstrong, DER's environmental specialist in site contamination clean-up, stated that they had reviewed groundwater monitoring currently provided by FCWC for the WWTP. They found no nitrogen violations. Surface Water Impacts. The preponderant evidence showed that treated effluent will not flow directly into the swales. Therefore, FCWC proved it will not leave site as surface run-off. However, in order to project the worst-case water quality evaluation for droplets greatly diluted by rainwater or groundwater which may enter the swales, it was assumed that all treated effluent landing within swales "made of glass" would run off directly into the Canal. In addition, uptake, removal or dilution likely to occur in the collection ditches was ignored. Pollution removal efficiencies for grassed swales (based on a year-long study) were applied to the projected concentrations for the treated effluent. After renovation in the swales, any treated effluent leaving the site would contain concentrations for parameters of concern at or better than surface water quality standards. Therefore, water quality in the receiving surface waters will not be violated. Due to removal efficiencies for soils, the treated effluent leaving the site as groundwater seepage into the collection ditches is expected to meet surface water quality standards. In addition, the trace quantity of effluent (0.12 inch for wettest year in ten) which may seep into the swales will reach the San Sabastian Canal only after being greatly diluted within the groundwater and filtered and purified in the soil in the citrus mounds and grassed swales. Even projecting ten times the amount of aerosol drift predicted for the project, the water quality impact of any sprayed treated effluent entering the Canal as drift is so small as to be insignificant. Ambient Water Quality. The existing discharge is having minimal effect on the water quality of the Canal. Furthermore, by eliminating the direct discharge, the project will reduce the present impacts on the Canal by 92-99%. Nonetheless, Petitioners suggest that the project may further degrade ambient waters which they allege are already below standards. Dr. Harper assessed the ambient water quality characteristics of the Canal, which is Class III fresh surface water and the ultimate receiving water for the site. Even including water quality data for the Canal put in evidence by Groves, the Canal is not currently at or below any state water quality standards for Class III waters, except for occasional Dissolved Oxygen (DO) levels. Levels of DO in sprayed treated effluent are expected to be very high. Even if groundwater seepage into the collection ditches and the Canal from the proposed sprayfield contains low levels of DO due its travel underground, it will not lower levels of DO in the ambient waters because the groundwater will also be low in BOD, which depresses DO. Thus, groundwater seepage is expected to have a neutral effect on ambient DO or to increase DO levels due to its diluting effect on BOD. Groundwater inflow to the site is negligible but outflow occurs at a significant measured rate. The only significant inputs are sprayed treated effluent and rainfall. Therefore, the groundwater under the site will eventually reach a stable condition where its constituent levels are the average of the constituent levels in rainwater and the treated effluent. The treated effluent to be applied on this site is at or above state groundwater standards. Necessarily, regardless of the condition of the existing groundwater it cannot possibly be degraded by the treated effluent to below state standards and may well be improved by it. Thus, FCWC has provided reasonable assurances that Rule 17- 600.530(4), F.A.C., has been met, without monitoring of ambient groundwaters in the application. The deposition of treated effluent will not violate the standard that all waters of the state shall be free from components which, alone or in combination with other substances, are present in concentrations that are carcinogenic or teratogenic to humans, animals or aquatic species or that pose a serious threat to public health, safety or welfare. Human Health Risk and Contamination. Petitioners allege that the sprayfield poses a hazard for contamination of their properties. They produced no witness or evidence of contamination other than experts in grove management, citrus production and management, and Petitioners themselves, who expressed scientifically unsubstantiated fears of the impact of the sprayfield on human health or the marketing of their fruit and honey. FCWC expert Dr. Christopher Teaf, who teaches biology, toxicology and risk assessment at Florida State University and is also president and principal toxicologist with a firm doing hazardous substance and waste management research, determined that the project poses no off-site contamination hazard. Pathogens. Fecal coliform is a standard measure for the health hazards of treated effluent based on an indicator group of microbiological organisms, present in the intestinal tracts of all warm-blooded animals as well as a number of insects and cold-blooded species. These organisms do not themselves ordinarily cause human disease, but may indicate the presence of other pathogenic organisms. Coliform bacteria are common in water bodies in general, and the state limit for these bacteria is 200/100 ml. Rule 17- 302.560(6), F.A.C. The World Health Organization has concluded that levels as high as 1,000/100 ml constitute an adequate standard and will not be associated with human disease. Only extremely limited numbers of bacteria can survive the hazardous journey from the WTTP to the Petitioners' property. First, required chlorination at the WWTP will reduce the coliforms to no more than 200/100 ml. At that level, pathogenic bacteria are negligible, if present at all. Pressures during ejection from the spray heads will cause a 70-90% mortality rate. Once airborne, bacteria will be killed because of temperature, ultraviolet radiation and desiccation. As water drops evaporate, constituents become more concentrated and the drops become toxic environments for bacteria. Bacteria falling to earth are filtered in the first few inches of surface soils. Any organisms borne off site will find that, due to the antibacterial qualities of citrus peel and fruit and the plethora of chemical agents routinely applied, the adjacent groves are an extremely inhospitable environment. Too few bacteria will survive at FCWC's proposed application levels, or at 10 times those levels, to constitute an infective dose and contribute to the incidence of human disease. Thus, treated effluent in the form of aerosol drift will have no adverse effect on the health of humans or otherwise cause contamination of areas adjacent to the proposed sprayfield. Consumption of Fruit. Bacteria are not taken up by the plant roots and the aerosol drift will not have any effect on the actual health of the citrus trees themselves. The minimal deposition from spray will be removed through washing required by governmental standards to remove dirt, grime and other contamination, such as fungicides, herbicides and pesticides applied as a normal practice in the citrus industry. Based on fifteen years of scientific literature, including the EPA Manual, crops irrigated with treated effluent do not contribute to human health problems in populations that consume those crops. With application of treated effluent with bacterial concentrations, even 10,000 to 100,000 times higher than the standard, there has been no incidence of human disease related to the consumption of such crops. Part II of Rule 17-610, F.A.C., "Reuse: Slow rate land application systems; restricted public access;" governs the type of sprayfield proposed by FCWC. Petitioners alleged that, due to the proximity of their groves and beekeeping activities, higher levels of treatment than those in Part II should be required. They argued that "advanced wastewater treatment" (AWT), defined in Section 403.086(4), F.S., would be more appropriate. This statute gives DER the discretion to require AWT when it deems necessary. Section 403.086(1)(a), F.S. However, AWT would not meet the requirements of Part III of Rule 17-610, which governs irrigation ("direct contact") of edible food crops and requires Class I reliability for treatment which is not required for AWT. Section 403.086(4), F.S.; Rule 17-610.460 and 17-610.475, F.A.C. Adjacent land uses were a part of the permit review for this project required in Part II. Buffer restrictions provide protection from the sprayfield so that levels of deposition are negligible compared to those when spray irrigation is applied directly at the food crop site. Thus, by its decision to issue this permit, DER recognized that minimal aerosol drift is not the "direct contact" envisioned in Part III and that because the project did not pose a hazard to adjoining groves higher levels of treatment are not necessary. Aerosol drift from treated effluent will have no effect on human health due to contamination of honey or adverse effects on the Shreve's bees located near the proposed sprayfield. Natural enzymes in unpasteurized honey are hostile to bacteria. The Shreves have never experienced a problem with the existing forty acre sprayfield even though it is accessible to their bees and has been in the area as long as the bees have. Petitioners allege that the sprayfield will attract birds, creating an aviation hazard to airplanes using the grass airstrip owned by Petitioner, Parrish Properties. Mr. Parrish, who is a licensed pilot, asserted that water ponding on the site and the mowing operation will attract birds. Both the proposed sprayfield and the surrounding groves will be mowed and irrigated and thus will provide the same type of mixed grass and citrus tree habitat as presently found in the groves. Therefore, Petitioners are currently attracting the same type and number of birds to their groves as FCWC's proposed sprayfield will attract. FCWC's expert in botany and ornithology, Mr. Noel Wamer, observed no large birds at the site, the existing 40-acre sprayfield or the surrounding citrus groves. He did observe small birds such as northern cardinals, towhees, and warblers, typical of citrus grove habitats. Cattle egrets might also be expected in the groves and the proposed sprayfield, particularly during mowing operations. Wading birds would only be attracted if water remained on the site for approximately one week or more to allow development of aquatic organisms as a food source. Birds present on the proposed sprayfield are very unlikely to fly up and collide with planes. The grass airstrip is used infrequently, with only 12 landings in the past year. For a number of years Mr. Wamer has observed bird behavior at the Tallahassee sewage treatment plant sprayfields near the Tallahassee Airport. The one-half mile distance between the runway and sprayfields in Tallahassee is nearly the same as the distance between the Petitioners' grass airstrip and the site. Planes landing at the Tallahassee airport are at an altitude of between 500 and 600 feet over the sprayfields, the same height as predicted over the site. Regardless of the size of planes, the birds, primarily cattle egrets, do not react, but continue feeding or resting. Stormwater and Surface Water Management Activities. On April 3, 1991, FCWC submitted an application with DER to modify and operate the existing stormwater and surface water management system on the sprayfield site (MSSW system). The Notice of Intent to Issue the MSSW Permit was published in the Florida Today newspaper on July 27, 1991. Minor activities are proposed to improve the existing system: (1) culverts at the ends of swales will be cleaned to restore full flow capacity; (2) obstructions and excess vegetation will be removed from the collection ditches to restore their original flow lines; and (3) any depressions in the swales will be filled and regraded to attain a minimum swale bottom elevation of 20.2 feet above mean sea level. As asserted by DER's expert in surface water management, the stormwater discharges will not be a combination of stormwater and domestic waste sufficient to trigger review of stormwater under DER rules as required by Rule 40C-42.061(3), F.A.C. Considering all proof adduced, particularly that stormwater will be treated to applicable standards in the grassed swales, water quality will not be violated, and the post- development peak discharge will not exceed the pre-development peak discharge from the site, FCWC provided reasonable assurances that the proposed MSSW system would not be harmful to the water resources in the area and would not be inconsistent with the overall objectives of the district. Summary of Findings and Permit Conditions FCWC has established that the sprayfield, as proposed, will meet the applicable regulatory requirements for the sprayfield and MSSW permits. Included in the specific conditions attached to the notice of intent to issue the sprayfield construction permit is the requirement that the site be operated to preclude saturated ground conditions or ponding. (FCWC Exhibit #3, paragraph 13, specific conditions). Witnesses for the applicant described certain proposals to assure this condition is met, and those proposals should be incorporated into the condition. Those proposals include the cessation of spraying during a rain event and the installation of devices to automatically turn off the sprinklers when rain occurs, the cessation of spraying whenever the groundwater level is within four inches of the bottom of the swales, and the installation of ground water gauges to determine when this level is reached. In order to minimize aerosol drift, the applicant proposes to establish wind gauges indicating the direction and speed of wind at the site. It was suggested that spraying would cease when the wind reaches 20 miles an hour, and sprinklers should be positioned to avoid spraying the downwind perimeter of the site when drift is likely to occur. This condition should also be incorporated in the permit. If the operational adjustments cannot be made automatically it will be necessary to require that the plant be staffed at all times that the spray system is turned on, notwithstanding the minimum six hours, five days a week required in Rule 17-602.370, F.A.C. and referenced in the intent to issue. Engineering computations in the application rely on the assumption that the vegetation onsite will be harvested (mowed and removed). Since spray irrigation treatment of wastewater depends on renovation or removal of effluent by the soil vegetation system, periodic mowing and removal of the vegetation should also be included as a permit condition.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered issuing permits number DC05-194008 and MS05- 194894, with the additional conditions addressed in Finding of Fact paragraphs 60 and 61, above. DONE and RECOMMENDED this 27th day of May, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by Petitioners, Groves and Shreve: Rejected as unsupported by competent evidence (as to the allegation of irresponsible plant operation). 2.-4. Rejected as irrelevant. 5.-7. Addressed in Conclusions of Law. Rejected as irrelevant. Adopted in paragraph 9. 10.-11. Rejected as contrary to the weight of evidence as to "irrigation efficiency". 12.-13. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence and mischaracterization of the witness' testimony. Rejected as unnecessary. Rejected as statement of testimony, not finding of fact, which testimony is outweighed by other evidence. 17.-18. Adopted in paragraph 3. 19. Adopted in paragraph 28. 20.-21. Adopted in paragraph 8. 22.-23. Adopted in substance in paragraph 22. Rejected as contrary to the weight of evidence. Average annual application rate of .54 inches/week yields 28 inches a year. Rejected as unnecessary. Addressed in Conclusions of Law. 26.-29. Rejected as contrary to the weight of evidence. 30.-31. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 11. Adopted in paragraph 19. Addressed in paragraph 36; adopted in substance. 38.-39. Rejected as unnecessary. 40. Adopted in paragraph 31. 41.-47. Rejected as unnecessary, or contrary to the weight of evidence as to "irrigation efficiency". 48.-49. Rejected as cumulative and unnecessary. 50. Adopted in paragraph 34. 51.-52. Rejected as contrary to the weight of evidence. The grass will be mowed and removed. The "U" value was based on the grasses, not the citrus. 53. Rejected as contrary to the evidence, as to "unknown density and type". 54.-57. Rejected as unnecessary. Rejected as contrary to the evidence. Adopted in paragraph 7. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Rejected as unnecessary. 63.-64. Rejected as contrary to the weight of evidence. 65. Rejected as confusing, as to the term "unsuitable conditions". 66.-69. Rejected as contrary to the evidence. 70. Rejected as confusing. 71.-72. Rejected as unnecessary. 73.-74. Rejected as a mischaracterization of the witnesses' testimony. 75.-82. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 84.-85. Rejected as unnecessary. 86.-87. Rejected as contrary to the evidence. 88.-89. Rejected as unnecessary. 90.-94. Rejected as contrary to the evidence. 95.-97. Rejected as unnecessary. 98.-99. Addressed in Conclusions of Law. 100.-103. Rejected as contrary to the weight of evidence. 104.-109. Rejected as a mischaracterization of the testimony or misunderstanding of the term "irrigation efficiency". 110.-112. Rejected as cumulative and unnecessary. 113.-114. Addressed in Conclusions of Law. Rejected as unnecessary. Addressed in Conclusions of Law. 117.-118. Rejected as irrelevant. Rejected as contrary to the law and evidence. Rejected as unnecessary. Adopted in paragraph 16 by implication. Rejected as unnecessary and misunderstanding of the testimony. Addressed in Conclusions of Law. 124.-126. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted by implication in paragraph 21. 129.-130. Rejected as unnecessary. 131. Rejected as contrary to the evidence. 132.-134. Rejected as unnecessary. 135.-138. Rejected as contrary to the evidence. 139.-141. Rejected as unnecessary. COPIES FURNISHED: Kenneth G. Oertel, Esquire M. Christopher Bryant, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. P. O. Box 6507 Tallahassee, FL 32314-6507 Harry A. Jones, Esquire EVANS, JONES & ABBOTT P.O. Box 2907 Titusville, FL 32781-2907 Kathleen Blizzard, Esquire Richard W. Moore, Esquire P.O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin Asst. General Counsel Dept. of Environmental Regulation 2600 Blairstone Rd. Tallahassee, FL 32399 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
Findings Of Fact On December 9, 1982, Petitioner filed with Respondent a dredge and fill permit application to remove gates and wing-walls from a double-lock canal system presently installed at the Palmetto Point Subdivision in Lee County, Florida, adjacent to the Caloosahatchee River. On January 6, 1983, Respondent sent a "completeness summary" to Petitioner, along with a letter advising Petitioner that its permit application was incomplete, and requesting additional information. Petitioner responded to the January 6, 1983, completeness summary by submitting additional information to Respondent on or about February 23, 1983. On March 21, 1983, Respondent sent a second completeness summary requesting further additional information from Petitioner. By letter dated May 18, 1983, Petitioner's attorney advised Respondent that submission of additional requested hydrographic information and water quality data was not justified. The letter further advised that Petitioner intended to rely on the information already submitted, and requested, pursuant to Section 403.0876, Florida Statutes, that Respondent begin processing the permit application. The letter further indicated that petitioner was submitting under separate cover a request that Respondent apply the "moderating provisions" of Rule 17-4.244, Florida Administrative Code, to the application. The aforementioned rule is entitled "Mixing Zones: Surface Waters." Also on May 18, 1983, Petitioner's counsel sent another letter to Respondent requesting the aforementioned "Mixing Zone." The letter requested the "maximum mixing zone" allowed under the applicable Provisions of Rule 17- 4.244, Florida Administrative Code. Petitioner had not requested a mixing zone be applied to the permit application prior to the request contained in its May 18, 1983, letter. By letter dated June 17, 1983 Respondent, in response to Petitioner's May 18, 1983, letters, advised that: The additional information [which] was received on May 19, 1983, was reviewed; however, the items listed on the attached sheet remain incomplete. Evaluation of your proposed project will continue to be delayed until we receive all requested information. Respondent's June 17, 1983, letter included a completeness summary, which asked for additional information, including the following requests concerning mixing zones: Your request for a mixing zone is applicable pursuant to F.A.C. Rule 17-4.244(6). Please provide a map indicating the outermost radius of the mixing zone (no more than 150 meters) and the period of time required. The completeness summary acknowledged Petitioner's refusal to supply additional information concerning hydrographic data and water quality information, and indicated that Respondent would evaluate the project accordingly. By letter dated August 29, 1983, Respondent advised Petitioner that it had been 73 days since notification of the incompleteness of the permit application with regard to the mixing zone request. This letter requested Petitioner to advise Respondent if it wished to withdraw the application, request additional time, or discuss questions regarding the application. The Petitioner did not respond to this communication. On September 9, 1983, Petitioner's attorney forwarded a letter to Respondent requesting a default permit pursuant to Sections 120.60(2) and 403.0876, Florida Statutes. Until this letter, other than a prior oral communication on September 2, 1983, notifying Respondent that the default request was forthcoming, Petitioner had not contacted Respondent concerning the permit application since its May 18, 1983, letters. On October 13, 1983, Respondent advised Petitioner by letter that the mixing zone request constituted a revision of the application and that the information received to evaluate the mixing zone request was incomplete. Petitioner was also advised that since the additional information requested had not been received, the application remained incomplete and Petitioner was not entitled to a default permit. Whether or not a mixing zone is applied to a permit application is significant because it determines where state water quality standards must be met, either adjacent to the proposed project, or up to 150 meters away from the project location. Under Rule 17-4.244(6), Florida Administrative Code, the 150 meter radius is measured from the point of generation of turbidity or pollution. Since the two locks to be removed were 80 feet apart, it was unclear whether Petitioner intended the point of generation for measuring the radius of the mixing zone to be the northern lock, the southern lock, or some other point. It is equally unclear whether Petitioner intended the mixing zone to extend south into the canal as well as north into the Caloosahatchee River. Petitioner never contacted Respondent to clarify the dimensions of the mixing zone being sought, even after Respondent requested a map indicating the outermost limits of the mixing zone in the June 17, 1983, completeness summary.
Findings Of Fact Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.
Recommendation From the foregoing, it is RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William W. Carpenter, Esquire 830 East Highway 434 Longwood, Florida 32750
Findings Of Fact Petitioner Thomas G. Allderdice owns approximately eleven acres of land which is located between Julington Creek Road and Julington Creek in Jacksonville, Florida. On April 2, 1979, he filed an application with Respondent Department of Environmental Regulation's St. Johns River Subdistrict Office at Gainesville for a permit to fill approximately one quarter acre at the southeast corner along the creek for a homesite. (Testimony of Petitioner, Petitioner's Exhibits 2, 7-8) Petitioner intends to fill the site to a height of approximately three feet, utilizing clean sand obtained from a commercial sand company. His application originally reflected an intent to surround the filled area with logs, but after being advised by John Gray, City of Jacksonville Engineering Office, that he would not need a city permit if he used riprap instead of logs along the shoreline, he modified his application and now intends to use masonry rubble riprap for approximately 120 feet along the bank which will extend some three to four feet into the water. The sketch attached to Petitioner's application describes the riprap as a "proposed silt barrier," but indicates that it will be placed at present ground level. (Testimony of Petitioner, Petitioner's Exhibit 8) On April 4, 1979, Respondent notified Petitioner that the application was incomplete in several respects, including the necessity of obtaining evidence as to local approval of the project. Subsequently, on August 28, and December 10, Petitioner was advised by letters from the St. Johns River Subdistrict that his application was incomplete in that respect. Finally, on January 25, 1980, the subdistrict manager issued a Notice of Intent to Deny the application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500, for (a) failure to respond to the request for additional information, (b) potential water quality degradation by replacing an aquatic ecosystem with a residential homesite, and (c) various reasons whereby the project would be adverse to the public interest, as specified in Chapter 253, Florida Statutes. Petitioner thereafter requested a hearing in the matter. (Testimony of Rector, Scott, Respondent's Exhibits 2, 4-5) The land in question is located on the north side of Julington Creek. Julington Creek is a typical fresh water tributary of the St. Johns River. Both sides of the creek have been moderately developed for residential use. The site in question may be described as a flood plain forest in the nature of a swamp that is inundated periodically during periods of high waters. Various small sloughs along the irregular shoreline extend into the property for several feet. The forest canopy is dominated by ash, cypress, blackgum and and maple with Florida elm, sweetgum and laurel oak growing on elevated hummocks. Throughout the region, the sparse ground cover includes iris, royal fern, lizard's tail, wild taro, buttonbush, and young cabbage palm. The littoral areas waterward of the proposed fill site are dominated by spatterdock, alligator weed and cattails. The area near the shore contains tupelo, cypress, and ash. These species which are associated with hardwood swamps fall within those listed in Rule 17-4.02(17)and (19), Florida Administrative Code, which constitute the dominant plant community of "submerged lands" and the transitional zone of a submerged land. Although Petitioner established that on two occasions in April 1980 during high tides, the land was not submerged, the area was flooded during a visit on September 17, 1979, by Respondent's subdistrict dredge and fill permit supervisor. At that time, the high tide was slightly over one foot above normal. On another occasion, a biologist for the Florida Game and Fresh Water Fish Commission observed that the site was inundated to a degree of approximately 20 percent. (Testimony of Petitioner, McCormick, Barber, Scott, Cox, Petitioner's Exhibit 3, 4-6, Respondent's Exhibits 1, 6) Julington Creek is classified as a Class III body of water. The swamp wetlands of the site serve as feeding, nesting, nursery, and refuge habitat for a variety of fish during inundation. The forest area contributes to fishery productivity by supplying a natural source of organic matter to the aquatic food web and serves to protect water quality from degradation by filtering sediments, nutrients, and other pollutants from upland runoff. The placement of fill at the proposed site will result in the loss of a high quality habitat of valued fish and wildlife resources which is a natural water quality treatment system. (Testimony of Barber, Scott, Cox, Respondent's Exhibits 1, 6) Species of wildlife likely to utilize the site include prothonotary warbler, parula warbler, Carolina wren, great crested flycatcher, tufted titmouse, pileated woodpecker, barred owl, marsh rabbit, raccoon, gray squirrel, flying squirrel and various small mammals, reptiles and amphibians. Mosquito fish were observed in the area of the project site during the September 1979 visit to the property by Respondent's permitting supervisor. (Testimony of Scott, Cox, Respondent's Exhibit 6)
Recommendation That Petitioner's application for a permit under Chapter 253, Florida Statutes, be denied. DONE and ENTERED this 11 day of July, 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: General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas G. Allderdice 12816 Aladdin Road Jacksonville, Florida
