The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Petitioner owns property which is adjacent to Lake Serena in Putnam County, Florida. Through his application to the Respondent, the Petitioner is seeking 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. The purpose of the proposed dredging and filling is to create a more gradual shoreline sloping from the Petitioner's residence to the shore of Lake Serena. Petitioner proposes to cover the filled area with white sand. He proposes to use the area as a sandy swimming beach. The area which the Petitioner is proposing to dredge and fill is presently dominated by wetlands vegetation, which would be removed by the dredging activity. The Petitioner originally commenced his project without receiving any permit from the Respondent. A large amount of the wetlands vegetation has already been removed. Lake Serena is a relatively pollution-free lake. Much 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 now an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding Lake Serena serves an important natural function in preserving the water quality in the lake, and in preserving the natural resources of the lake, including fish and wildlife. The aquatic vegetation serves to filter run-off from uplands areas by assimilating nutrients that are in the run-off. A nutrient scale has been devised for identifying the amount of nutrients in a lake. An oligotrophic lake is low in nutrients. A mezotrophic lake has a moderate amount of nutrients. A eutrophic lake is high in nutrients. In the natural process of aging, water bodies progress from oligotrophic to a eutrophic state. This is a very long natural process taking thousands of years. Lake Serena is an oligotrophic lake. Aquatic vegetation in the littoral zone surrounding Lake Serena serves to maintain this condition. If too much aquatic vegetation is removed from the littoral zone, a buildup of nutrients would result. This buildup of nutrients would cause an algal bloom, or a buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen level of the lake. This is because algae itself uses oxygen, because algae kills oxygen producing plants which thrive on the bottom of the lake due to light being cut off, and because, as the algae dies, it sinks and decomposes using up more oxygen. An algal bloom, and the resulting reduction of oxygen levels in a lake would constitute pollution. Removal of aquatic plants in Lake Serena's littoral zone would serve to diminish fish and wildlife populations in the lake. Small fish use such an area as a nursery ground where they can hide from predators. Without such a nursery ground, the cycle of survival for aquatic wildlife would be cut off. The area from which the Petitioner has already removed considerable wetlands vegetation, and proposes to remove more, is a viable part of the littoral zone of Lake Serena. The area serves the beneficial purposes set out in Paragraph 2 above. It cannot 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. Certainly removal of all such littoral zones would drastically change the ecology of the lake and render it polluted. Sixty percent of Lake Serena's shoreline has already been denuded of vegetation. Although it cannot be determined precisely 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. The only effect that the Petitioner's project could have upon the water quality and natural resources of Lake Serene is negative. No evidence was offered at the hearing from which it could be determined that the Petitioner's proposed project would not have an adverse impact upon the water quality and natural resources of Lake Serene. In its notice of intent to deny, Respondent asserted that the proposed project would be expected to degrade the water quality of Lake Serena, and to violate water quality standards because turbidity levels would exceed permissible limits. Respondent is contending that during the pendency of the project turbidity levels will be too high. At the present time the water level of Lake Serena is two to three feet below the ordinary high water line. The area Petitioner proposes to dredge and the area he proposes to fill, while below the ordinary high water line, are above the present water line. From the evidence it appears that steps could be taken so that the proposed project could be accomplished without exceeding permissible turbidity levels. The only purpose that would be served by the Petitioner's proposed project is to provide Petitioner with a sandy swimming beach rather than a natural shoreline.
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
The Issue The issues are whether Petitioner has standing to contest the consent agreement into which Respondents entered and, if so, whether Respondent Department of Environmental Protection abused its discretion in entering into the agreement.
Findings Of Fact The Butler chain of lakes, which covers about 4,700 acres, comprises 11 lakes and artificial canals interconnecting these lakes. The northernmost lake of the chain is Lake Down, which lies immediately north and east of the Town of Windermere. The Town of Windermere is about 15 miles west of Orlando. Immediately west of the Town of Windermere is Lake Butler, the largest of the lakes, covering roughly 1,900 acres at its normal high water elevation of 99.5 feet. (All elevations are National Geodetic Vertical Datum). Water flows north to south between these lakes and the surrounding area of west Orange County. The Butler chain occupies the northern end of the Reedy Creek Basin, which occupies the northern extent of the area under the jurisdiction of the South Florida Water Management District (SFWMD). In terms of drainage, Lake Down is the uppermost lake and drains through Wauseon Bay into Lake Butler. Lake Butler's drainage basin captures about half of the strip of land dividing Lake Butler from Lake Down. Occupying this strip of land is the older, more densely developed residential area within the Windermere area. Just south of this residential area, Lake Butler's drainage basin encompasses the western extent of the Isleworth Country Club golf course. The portions of the drainage basin on the south and west sides of the lake contain the most upland, much of which remains in agricultural use or is vacant. These portions of the drainage area include the Lake Butler Sound and Tilden's Grove drainage subbasins, which are discussed in more detail below. The relatively thin strip of land forming the drainage basin north of the lake is moderately developed residentially; the westernmost extension of this land is the residential development known as Park Avenue West, formerly known as Chaine du Lac, a residential subdivision of at least 70 acres. Respondent Windermere Botanical Garden, L.P. (WBG, which includes WBG's predecessor, Altima Development, L.P.), owns unbuilt platted lots within a 40-acre parcel in the subdivision, for which SFWMD has issued a Surface Water Management (SWM) Permit. The drainage facilities are already constructed, although numerous lots, especially in the immediate vicinity of the activity described below, remain unbuilt. In 1984, Florida designated all of the Butler chain of lakes and their canals as Outstanding Florida Waters (OFW). The deepest depths of the Butler chain generally range from 15-30 feet, although parts of Lake Butler reportedly are 40 feet deep. At the time of their OFW designation, the uppermost seven lakes, which include Lake Butler, were oligomesotrophic, with low productivity, high water quality, and deep waters. At that time, the lowermost three lakes (Sheen, Pocket, and Fish) were mesotrophic, with moderate productivity, high coloration, and shallow waters. Orange County collected water quality data for all of the lakes in the Butler chain since 1967. The same year, Respondent Department of Environmental Protection (DEP), which includes DEP's predecessor agency) began collecting water quality data in Lake Butler. At the time of their OFW designation, the water quality of the entire Butler chain was excellent. A DEP report dated January 11, 1984, recommends the OFW designation of the Butler chain. The report states that the biological data also supported the designation, noting that the frequent collection of varieties of mayfly, midge, and caddisfly suggested "excellent water quality" because "[f]ew of these organisms have been collected from lakes located in highly developed areas of central Florida." The DEP report states that the shoreline vegetation of most of the lakes, except "several of the upper lakes," had remained in a natural state, consisting of cypress, wax myrtle, bays, primrose, panicum, cattails, and sawgrass. The dominant submerged plant was bogmoss, with hairgrass found in the deeper parts of the lakes. The DEP report contains several figures that provide water quality data for each of the ten lakes covered by the report. It is impossible to determine if the data are averages or data points at a specific time. If averages, as seems more likely, the period of time is omitted from the figures and accompanying text. Figure 4 of the DEP report indicates that Lake Butler, as was true of all of the lakes in the Butler chain, had between 0.01-0.02 mg/l of total phosphorus. Lake Butler had 0.8 mg/l of total nitrogen. This ratio suggests that Lake Butler was a phosphorus-limited lake, as it remains today. For a phosphorus- limited lake, phosphorus is the more important nutrient in restricting the eutrophication process, by which lakes become increasingly more productive as they pass from oligotrophic to mesotrophic and ultimately to eutrophic states. The 0.8 mg/l value for Lake Butler was closer to the values for Lake Sheen and Pocket Lake, which were the more productive lowermost lakes, than to the 0.6 mg/l value for Lake Down. However, Figure 6 of the DEP report reveals that the secchi depth of Lake Butler, which was about 3.7 meters, more closely approached the secchi depth of Lake Down, which was 4 meters, than it did the secchi depths of the lowermost three lakes, which were about 1.3 meters. Figure 8 indicates that Lake Butler more closely resembled Lake Down in turbidity, with the former at 1.0 NTU and the latter at 0.8 NTU. Two of the lowermost lakes were at 1.5 and 2.2 NTU, and the third was at 4.5 NTU. All of the lakes were well-oxygenated. Figure 3 of the DEP report indicates that Lake Butler had over 8 mg/l of dissolved oxygen and less than 1 mg/l of biochemical oxygen demand, which were about the same values as those of the nine other lakes. Figure 9 of the DEP report discloses that Lake Butler had the highest chlorophyll a value--1.75 ug/l, which one other lake shares. Lake Down had the lowest chlorophyll a value-- 1.32 ug/l. In general, chlorophyll a is associated with algae. However, these were relatively low chlorophyll a values, as was reflected in the fact that algae counts in the Butler chain seldom exceeded 100 algae/ml. However, average chlorophyll a values in Lake Butler have been steadily increasing since 1989. Average chlorophyll a values remained at or below 1 ug/l in 1989 and 1990, then rose to about 2 ug/l in 1991 and 1992, before dropping to about 1.3 ug/l in 1993. In 1994, the lake's average chlorophyll a values increased to about 2.25 ug/l and, in 1995, increased again to about 3.7 ug/l. The next year, 1996, average chlorophyll a was about 3 ug/l, and, in 1997, average chlorophyll a was about 4.7 ug/l. From 1989 through 1997, the average annual chlorophyll a in Lake Butler increased in reasonable conformance to a steady, straightline progression. However, average chlorophyll a dropped in 1998 to 2.5 ug/l and dropped again, in 1999, to 1.3 ug/l. In 2000, average chlorophyll a increased to 1.6 ug/l, but, in 2001, average chlorophyll a dropped to 1 ug/l. The lake's chlorophyll a values for 1998-2001 were far below their predicted values, based on an extension of the straightline progression established from 1989-1997. During much of these four years, central Florida experienced a severe drought, as noted below. When the drought ended, in 2002, average annual chlorophyll a values abruptly increased by one order of magnitude, to a little over 12 ug/l. If the straightline progression reestablishes itself with the return of normal rainfall amounts, the average annual chlorophyll a for 2003 will decrease, but only to nearly 6 ug/l. Although only half the chlorophyll a value of 2002, a value of 6 ug/l would be four times greater than the value when Lake Butler received its OFW designation 20 years ago. The DEP report notes no point sources of discharge into the Butler chain. Nonpoint sources included residential and agricultural uses, mostly citrus, although retention of much of the native shoreline and native vegetation had filtered nutrients and prevented excessive algae growth. In the 20 years since the Butler chain was designated an OFW, the surrounding area has undergone considerable development, with the conversion of agricultural and vacant land uses to residential uses, as well as the development of the Isleworth golf course that occupies much of the land separating Lake Butler from the downstream lakes. Much, if not all, of the residential development surrounding Lake Butler relies on septic tanks. Also, much of the development of the lakeshore predates the implementation of strict stormwater management controls, so the nutrient-enriched stormwater runoff from yards and the golf course flow into the lake with little, if any, attenuation. From 1999 to mid-2002, a severe drought caused the elevation of Lake Butler to drop from 99.3 feet to 95.3 feet. The drought ended with six months of heavy rainfall in 2002 that contributed to the second highest annual rainfall on record-9.5 inches. The elevation of Lake Butler rose to just over 100 feet in the last six months of 2002. Key facts in this case include the deluge after the drought, and the timing of the deluge. In June 2002, Lake Butler was at 95.2 feet. In July 2002, Lake Butler was at 96.7 feet. Six months later, in January 2003, the lake had risen to 100.3 feet. The water elevation increased 1.5 feet from June to July 2002 and then increased another 1.7 feet from July to September 2002, for a total of 3.2 feet over three months. From September 2002 to January 2003, the lake rose another 1.9 feet, so the summer of 2002 was a period of rapid rise in water elevation in Lake Butler. Seeking to take advantage of the low lake elevations produced by the three-year drought, WBG decided to undertake a muck-removal project in an eight-acre cove at the northwest corner of Lake Butler and adjacent to the Park Avenue West development occupying the northwest shore of Lake Butler. The cove is triangular-shaped. The mouth of the cove is 500-600 feet long and runs in a northwest to southeast direction. The southern side of the cove is about 1000 feet long, and the west side of the cove is about 950-1000 feet long. At the apex of the cove across from the cove mouth is a culvert that runs under West Lake Butler Road and connects the cove to the Tilden's Grove wetlands to the southwest of the cove. Most of the cove bottom is below 99.5 feet elevation, so the cove bottom is submerged when Lake Butler is at its normal high water elevation. The parties do not contest that the cove bottom is sovereign submerged land. However, by the end of the three-year drought described above, about 75 percent of the cove was walkable. Historically, the cove was open water, as reflected by a rough map from the mid-19th century. For at least the past 50 years, though, much of the cove has been filled with vegetative material. For at least the past several years, the cove has been occupied by a thick mat of living vegetation, known as a tussock. During periods of normal water elevations, such as in May 1998, just prior to the three-year drought, the tussock in the cove floated on several feet of water, its thick vegetative mat held together by the roots of the plants by which it was formed. The tussock remained wedged in the cove, which much of the year receives an easterly wind that tends to restrain the tussock in the apex of the cove. The formation of the tussock accelerates the process by which muck forms on the bottom beneath the tussock. Little submerged vegetation survived the thick shade of the floating and occasionally grounded tussock. The dead plant material decayed and added to the thick layer of muck on the bottom of the cove. Large tussocks in central Florida have been known to become untethered to the bottom and, driven by the wind, have destroyed docks and seawalls, scoured submerged vegetation, and presented a hazard to navigation. To convert its unbuilt tussock-front lots to lakefront lots, WBG undertook a project to dredge several feet of muck from the bottom of the cove and place the spoil on a nearby upland site owned by WBG. The first step in this process was for WBG to renew its 1998 Bureau of Invasive Plant Management Permit (BIPM Permit). Pursuant to an application for renewal filed in March 2001, DEP renewed WBG's BIPM Permit (2001 BIPM Permit). Condition 6 of the 2001 BIPM Permit requires WBG, as permittee, to plant nearly all of the cove bottom with 60,000 aquatic plants. Condition 4 of the 2001 BIPM Permit requires WBG to maintain the revegetated site pursuant to the attached site plan, but no site plan is attached to the permit, nor could any witness adequately identify any such site plan. The 2001 BIPM Permit identifies the "area of operation" as the five unbuilt lots owned by WBG that abut the cove. Based on the earlier BIPM permit, the 2001 BIPM Permit describes ten targeted plant species over only one-quarter of an acre. Notwithstanding these provisions, the agreement between DEP and WBG was for WBG to clear eight acres of tussock vegetation and replant the entire submerged cove bottom. Having obtained the 2001 BIPM Permit, WBG proceeded to the next step of the project--removing organic materials from the cove. WBG elected to demuck the cove pursuant to a statutory exemption that allows the holder of the BIPM permit to remove up to three feet of organic material, but not sand, without an Environmental Resource Permit (ERP). WBG interpreted the statutory exemption to allow it to remove the tussock, which was about one foot thick, plus up to three feet of underlying muck. On March 19, 2002, WBG posted its Notice of Commencement for the muck-removal job. Three days later, the contractor began site clearing at the apex of the cove. The findings of fact refer to WBG, rather than its contractor, because the contractor performed pursuant to its contract, and WBG representatives were onsite sufficiently to know exactly what the contractor was doing as the contractor was doing it. On March 29, 2002, WBG installed double turbidity barriers across the cove mouth. These barriers ran from the submerged bottom to the surface of the lake. On April 3, 2002, WBG submitted an application to SFWMD for a dewatering permit and, assured of its issuance, began dewatering the cove without delay. At the same time, WBG began constructing a berm across the mouth of the cove. The berm, which was finished by April 25, 2002, occupies sovereign submerged land. To construct the berm, WBG dredged muck and some sand from the landward and waterward sides of the site of the berm. As built, the berm, which also served as a haul road, was 12-16 feet wide, two feet above the elevation of the lake, and 500-600 feet long. The berm served as a barrier to prevent the waters of Lake Butler to enter the cove and interfere with the muck- removal project. The berm also served as a barrier to prevent stormwater-transported turbidity and sediments from the cove and its drainage subbasin from entering the waters of Lake Butler. Additionally, WBG temporarily stored the removed muck in adjacent wetlands, constructed a rim ditch in muck and some sand, and permanently deposited the removed muck in nearby uplands owned by WBG. The berm on sovereign submerged bottom and across waters of the state did not go unnoticed. During the first week of April, DEP's BIPM representative notified a DEP representative in its Office of Submerged Lands and Environmental Resources Permitting (SLERP). On April 8, the SLERP representative visited the site and found the obvious violations. A second visit on April 25 revealed that the work had proceeded and the violations had not been corrected. On May 1, 2002, DEP Central District Director Vivien Garfein issued a warning letter to WBG for the illegal filling of the wetlands to form the berm, although the letter omits any mention of the illegal dredging to form the berm or temporary storage of the muck in wetlands. Racing against the darkening horizons of both regulatory intervention and the approaching rainy season, WBG proceeded without delay with its demucking job. By May 4, half of the tussock was gone, and a pump removed water from the cove to a nearby detention pond, which was part of the SWM system already in place in the Park Avenue West subdivision. At no time did the pumped water overrun the pond, probably due to the drought and the fact that the pond served a part of the subdivision that had not yet been built. Nor did the pumped water transport into Lake Butler nutrients or other contaminant through the groundwater under or nearby the pond. By May 21, the tussock was completely gone, and muck removal was in full force. Trenches drew the water toward the apex of the cove, and the pump was now running continually. On May 29, with the job nearly two-thirds finished, representatives of WBG, DEP, SFWMD, and Orange County met to discuss all of the violations, not just that cited in the warning letter. The parties discussed using a consent order to authorize the construction of the berm, restoration of sand from the rim ditches, removal of the muck fill to uplands, removal of the berm, reflooding the cove, and replanting to the conditions set forth in the 2001 BIPM Permit. However, the three-year drought was to end long before DEP would prepare a consent order, whose contents are set forth below. DEP sent the first draft of the consent order to WBG in January 2003. At WBG's insistence, DEP changed the name of the document from "consent order" to "consent agreement." WBG signed the consent agreement on April 28, 2003, and DEP signed it on May 6, 2003. In the yearlong interval between the discovery of the violations and the execution of the consent agreement, WBG had continued with the project, now with the tacit consent of DEP. In the latter half of June and first half of July of 2002, the rains returned and, as noted above, returned in abundance. WBG completed the muck removal on June 30 and was ready to refill the cove. By now, the lake elevation was five feet above the cove bottom, so, rather than flood the cove and generate considerable turbidity, WBG, by opening a previously installed culvert in the berm, gradually reintroduced water into the cove. After doing so, WBG finished removing nearly all of the berm by July 4 and proceeded substantially to complete the job in the following days. Upon the removal of the berm, in mid-July, the cove was more turbid than Lake Butler, so the turbidity barriers, which were still in place after the removal of the berm, were effectively containing the temporary turbidity associated with the removal of the berm, as well as any temporary turbidity associated with the heavy rains generating stormwater runoff from Tilden's Grove under West Lake Butler Road and into the cove. In early August, though, the rapidly rising lake elevation forced the turbidity barriers off of the submerged bottom and eventually the wind drove them into the lake, although their anchors still held them, at points, along the mouth of the cove. As noted above, the three-year drought ended with extremely heavy rains from mid-June to mid-July, such that the lake rose 1.5 feet in this 30-day period. By the end of July or the first few days of August, Lake Butler suffered a catastrophic algae bloom, turning its once-clear waters, almost overnight, a thick green-brown, depositing scum on pilings, seawalls, and boats, and repulsing swimmers, boaters, and fishers from pursuing their recreational activities. By the end of July or early August, WBG had substantially completed its work in the cove, except for that required by the 2001 BIPM Permit. Even though lifted two to three feet from the bottom and partially blown into the lake, the turbidity curtains remained effective--now, though, shielding the refilled cove from the more-turbid waters of Lake Butler. By letter dated October 30, 2002, from WBG's project engineer to WBG and DEP, the engineer noted that turbidity in the cove was considerably lower than the range of turbidities in Lake Butler and requested permission to remove the turbidity barriers. However, by agreement between WBG and DEP, the turbidity barriers have remained in place, at least partly to protect the newly planted submerged and emergent vegetation from the disturbance posed by boating. The consent agreement, in which WBG does not admit to any wrongdoing, recites the findings of DEP representatives in April 2002, but adds that a reinspection on September 10, 2002, revealed that WBG had restored the impacted areas to DEP's satisfaction. The consent agreement notes that replanting of the cove is proceeding pursuant to the 2001 BIPM Permit. The consent agreement imposes a civil penalty of $8,600 for alleged violations of Section 373.430, Florida Statutes, and DEP rules and $350 for DEP's investigative costs. The consent agreement states that, instead of paying the fine and costs, WBG has elected to make an in-kind contribution, in the form of a videotape of the benefits of lakeshore care and restoration, at a "value" of $13,425. The consent agreement establishes deadlines for the production of the videotape. The consent agreement requires WBG to publish a notice of intended agency action, which advises persons who are substantially affected by the consent agreement to file a petition for a hearing "on the consent agreement." In response to the deteriorating water conditions in Lake Butler, Orange County retained a limnologist, Dr. Larry Battoe, who is an assistant director of Environmental Services Division of the St. Johns River Water Management District. On October 31, 2003, Dr. Battoe prepared a report of his findings and conclusions. Relying on water quality data collected by Orange County, Dr. Battoe noted that total phosphorus in Lake Butler rose an order of magnitude from July 8, 2002, when it was 2.5 ug/l, to December 2002, when it was 25 ug/l. Because Lake Butler is a phosphorus-limited lake, the rapid rise in phosphorus fed a rapid rise in algae, as evidenced by the chlorophyll a values, which began to increase in late August and peaked on November 20, 2002, at 27 ug/l. Turning his attention to WBG's muck-removal project, Dr. Battoe identified three ways by which phosphorus could have entered the lake: erosion of soils exposed by the project or leaching of phosphorus from the soils and subsequent movement into the lake, stormwater running through the project area, and resuspension of bottom sediments so as to release soluble phosphorus. Few cases receive the detailed attention provided by an expert as competent and disinterested as Dr. Battoe. Resorting to comparables where direct data were unavailable and analyzing the Lake Butler Sound drainage subbasin, as well as the Tilden's Grove drainage subbasin, Dr. Battoe developed water balances and water budgets for Lake Butler. He analyzed the spoil mounds to compare estimated post-project levels of phosphorus with predicted pre-project levels. Dr. Battoe took water quality samples within the cove and waterward of the turbidity barriers, which were still in place in August 2003, when he collected much of his data. Dr. Battoe found "little evidence" that the WBG muck- removal project loaded phosphorus into Lake Butler. Dr. Battoe favored explanations involving runoff, especially enriched after a three-year drought, and septic-tank leachate as sources of phosphorus loading. Dr. Battoe compared cumulative rainfall to total phosphorus concentrations in Lake Butler and found a direct relationship, suggesting that the rains contributed the phosphorus, directly by phosphorus-laden rainfall and indirectly by phosphorus-laden stormwater. Comparing chlorophyll a levels over a longer period of time, as already described above, Dr. Battoe found the direct relationship between lower rainfall levels and lower chlorophyll a levels and, over the longer term, the steadily rising chlorophyll a levels. Ultimately, Dr. Battoe concluded that about three-quarters of the increase in phosphorus that the lake suffered was attributable to the increase in rain that started in the latter half of June 2002. Dr. Battoe concluded that the rainfall directly into the lake and the runoff over the entire drainage basin generated the algae bloom and that the lake suffered no disproportionate phosphorus loading from the Tilden's Grove subbasin or the dredged cove. Pursuant to the 2001 BIPM Permit, WBG's wetland- restoration consultant, Jim Thomas, has undertaken much work in revegetating the submerged bottom of the cove, as well as the littoral shelf and a conservation area that runs along the uplands adjacent to the cove. With considerable experience in projects of this type, Mr. Thomas agreed to participate in the revegetation project only after WBG decided to remove the tussock and demuck the cove, rather than try to eliminate individual plants, as it had in connection with the two previous BIPM permits. Replacing the degraded wetland and waterbody that the tussock-choked, muck-filled cove had become with a diverse array of submerged and emergent vegetation, Mr. Thomas's work will result in the more efficient removal of nutrients and other contaminants from the runoff passing from Tilden's Grove through the cove and into the open waters of Lake Butler. Once completed, the revegetation of the cove will provide a more diverse habitat for wildlife than previously existed. The tussock-removal, demucking, and revegetation processes work in conjunction with each other to reverse the aging process by which lakes accumulate detritus in the process by which they transform to marshes--a process accelerated by the addition of phosphorus from external sources, such as agricultural and urban runoff. Mr. Thomas's work was impeded by the high rainfall levels that took place starting in mid-June 2002. Rather than insist that Mr. Thomas attempt to plant in such adverse conditions, which all but precluded the survival of many of the plants, DEP sensibly suspended the time constraints of the 2001 BIPM Permit, so that Mr. Thomas could plant during periods of more normal lake elevations. After delaying the planting during the high lake elevations of the fall and winter of 2002, Mr. Thomas recommenced his work in the spring of 2003. A cease-and-desist order from the U.S. Army Corps of Engineers stopped the work from April 21, 2003, to July 14, 2003. After one month's delay while WBG assessed the probable outcomes of this case, Mr. Thomas recommenced his work by the fall of 2003 and planted more than 1000 plants in addition to the 3000-4000 plants that he had already planted. By this time, the emergent vegetation that Mr. Thomas had first planted had proliferated into a luxuriant growth. At the time of the hearing, in December 2003, the submerged vegetation had taken hold, mostly from natural recruitment, which promises a more robust, persistent vegetative presence than would ensue from individual replanting. Mr. Thomas estimates that natural recruitment will reduce the 60,000 plants specified in the 2001 BIPM Permit by 20-50 percent. At the time of the hearing, hydrilla eradication and replacement of a small number of replanted cypress trees appear to be most urgent needs, although more time needs to pass to confirm that the submerged and emergent vegetation have taken hold.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioner's challenge to the consent agreement. DONE AND ENTERED this 4th day of May, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2004. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Jacob D. Varn Karen A. Brodeen Fowler, White, Boggs, & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Timothy A. Smith Akerman Senterfitt 255 South Orange Avenue, 17th Floor Orlando, Florida 32801 Kelli M. Dowell Senior Assistant General Counsel Robert W. Stills, Jr. Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner in this matter is Victor T. Cheney, who owns the property in question described as Section 7, south quarter, southeast quarter of northwest quarter of Township 1 South, Range 19 Nest, located near Portland, Walton County, Florida. The property consists of approximately 15 acres and is located 300 to 400 feet south of State Road 20 in Walton County. Respondent is the State of Florida, Department of Environmental Regulation. Several years ago, Petitioner purchased considerable property located on either side of Goodwin Creek, a tributary of Alaqua Creek, which enters into Alaqua Bayou, which in turn empties into Choctawhatchee Bay, which itself enters into the Gulf of Mexico. The property in question was not a part of the original purchase. At some point in the not-too-distant past, Petitioner sold a portion of his property downstream from the instant property to a real estate developer for the purpose of residential subdivision. However, because of the fact that Goodwin Creek, over the years, has been blocked by numerous Beaver dams, the surrounding land has become waterlogged and did not afford reasonable access to the property previously sold for residential subdivision. As a result, Petitioner was forced to purchase the property in question here for the purpose of restoring the proper flow of Goodwin Creek by removal of the dams and draining of the swamp, thereby affording reasonable access to the downstream residential property. Petitioner's position is contained in three major thrusts: the first dealing with trees and forestation, the second dealing with water quality, and the third with the constitutionality of the DER action. The property in question, according to the Petitioner, was initially forestland. However, subsequent to World War II, because of the lumbering-off of what was once virgin forest, as evidenced by surveyors notes dating from 1848 and 1896, beavers were brought in by governmental agencies at Eglin Field during World War II to help control erosion problems. Because the beavers natural enemies, such as wildcats and alligators, have been reduced in number in later years to the point that they are no longer effective in maintaining the beaver population and because beavers proliferate quickly and are hard to control, the beaver population has gotten out of hand. The City of Fort Walton Beach has within recent years engaged in a war with the beavers because of the latters' incursion into the city limits and the destruction they have caused to trees within the city. Beavers, which build dams and flood the land, resulting in a die-off of first the pines and then the tupelos and other hardwoods, are the last attack on the virgin forests of northwest Florida. Other enemies which have taken their toll of the trees during the past years are lumbering, insects, disease and hurricanes. Petitioner wants to reforest the beaver area with loblolly and slash pine. These trees are the dominant forms necessary for a healthy ecosystem, and they provide food and shelter for various birds, some species of which have become extinct because of the loss of trees in the area. Other species are endangered, such as certain types of woodpeckers. Some species of birds need up to 100 acres per family in order to survive. Petitioner wants to plant trees that are productive clients for the local economy. Conifers are the most valuable wood product in this area; and in Petitioner's opinion, the best tree there is for the area in question is the pine tree. Petitioner contends that 20 percent of the land in Walton County, Florida, is in private hands, and the county is poor in forestland. There is too much hardwood, which is of poor quality, and not enough pine, and pine is what he intends to plant in the area if he is permitted to drain it. Turning to the area of water quality, Petitioner urges that the beaver activity has left Goodwin Creek stagnant, without clear headwaters. The area in question contains some SO acre feet of standing water. As a result of beaver activity, the area is plagued with silting, an invasion of saltwater and a putrefaction by sunshine in the summer, and a scum on top of the water. At the bottom of the water is a stinking white globular mass which lies below the freshwater on top. The beaver dams build up swamps behind them, not lakes. Goodwin Creek contains Class III waters which, according to Petitioner, must be maintained in a quality sufficient to sustain body contact (bathing and skiing) . These activities cannot be done in the water as it stands now. If permitted to drain the swamp and clear out the beaver dams, Mr. Cheney claims that the water quality will be improved, contra to the state claim that it would he degraded. He contends that the flushing action resulting from his clearing of the creek will clear and improve the water quality both there and downstream. The predominant fish in the water in the area now is the needlenose gar, which can live in the water as it is now. Those fish are a pest and have no food value. They eat better fish; and their eggs, according to Petitioner, are poisonous. The young gar eat fish that eat mosquito larvae. If the creek is cleared, the gar will clear out and better fish will return. Another purpose of clearing the creek would he to remove the threat to the road and the residential lots downstream because of the constant danger of road washout and the plugging of the drainage culvert by beavers. Removal of the beaver dams would reduce run-over flooding. Petitioner contends his desire is to remove the dams and clear the creek. Yet, the two drawings submitted with his Petition and Amended petition reflect considerably more than merely the clearing of dams. In the first drawing submitted, Petitioner proposed to dig a 30-foot-wide drainage ditch to a depth of 4 feet, running across a portion of the property, using the material excavated from the ditch to build up the area to the north of the ditch and west of the west branch of Goodwin Creek, thereafter planting 15,000 pine trees in the filled area. Petitioner offered no evidence in the form of water quality studies, or forester or reforestation reports from experts in the area. His evidence consisted primarily of newspaper articles, maps, photographs, historic documents and other documents submitted to him by the State. There was no hard evidence to support the allegations of benefit or the contentions as to forestation or water quality as contained in his narrative testimony which included, coincidentally, a rendering of Joyce Kilmer's poem "Trees." On the other hand, Respondent presented the testimony of Clifford S. Rohlke, a dredge and fill field inspector with a background in biology who for 9 years has made biological impact assessments on approximately 1,000 dredge and fill applications throughout the State. Mr. Rohlke was first brought into this case when Petitioner's original application was filed. He went out and looked at the site in section, meeting with Petitioner later, and together they walked the site for a second time. As a result of his inspection, he wrote the biological field report, which outlines the impact of the proposed project. He described the area as rural, floodplain land of the Alaqua Creek basin, which has been subject to numerous fill violations for housing adjacent to the bay and Little Alaqua and Goodwin Creeks. The creek basin in question regularly floods once or twice per year, and much of the land has standing water supporting cypress, tupelo hardwood swamp. The specific site is an inundated hardwood swamp. Overstory vegetation includes black gum, red maple and titi. Submerged and emerging vegetation includes various grasses, moss, water lily, dollar weed and duckweed. The proposed canal and its spoil areas are typically inundated with water In fact, the surface water sheet flows westward around numerous islands and buttresses through various small creek channels intermittently located throughout the wetland area. There is only one piece of upland property in Petitioner's entire parcel which is located to the south of the proposed project area. This particular portion is small and is isolated on three sides by the surrounding basin. As a result, Mr. Rohlke considered the area to be wetlands because of contiguous waters which run up to and flow into Goodwin Creek. There are pools and rivulets throughout the property. He saw three beaver dams, most of which had been breached already; and it is his contention that even if the dams are removed, the water will not dry up naturally because it is historically bona fide wetlands, a low, low area which could not be dried up without a lot of fill. Consequently, this evidence supports a finding that the area in question is in fact a historical wetland, was such before the advent of the beavers, and even the removal of the beaver dams would not radically change the nature of the property to convert it into uplands, thereby taking it outside the jurisdiction of the Respondent. Having thus concluded that the property in question is a historical wetland over which Respondent has jurisdiction, we then turn to the basis for denial by the Respondent of Petitioner's request. The letter of July 12, 1983, reflects as reasons for the intent to deny several factors. One is that he application is incomplete because the Department of Natural Resources has not Issued Its consent to the project. This is correct, though Petitioner contends he was advised by the Department of Natural Resources not to worry about it. A second is that the proposed evacuation and filling will result in violations of state water quality standards and criteria for such Items as bacteriological quality, biological integrity, pH, specific conductives, DO, BOD, nutrients and turbidity. Regarding she issue of bacteriological quality, because of the buildup of muck in standing water areas over the years, the rich muck contains silt, a good media for bacteria, including fecal bacteria, growth. Cutting into this silt will release much of this bacteria into the water downstream from the area of the cut. This in turn will raise the total coliform and fecal coliform bacteria count. In short, disturbing the area by digging would release the bacteria currently trapped in the bog area and the muck. Biological integrity deals with the number of species and the quantity of item per species in the area. Disruption of the natural habitat will vastly alter the biological integrity of this area and other areas downstream. Specifically and primarily, Mr. Rohlke was referring to such species as mayflies, dragonflies, worms, leeches and lesser organisms which would be disturbed and possibly removed, in the case of the lesser organisms, by the removal of the dirt. Not only would removal alter the biological balance, but so would the biological balance of the area where the removed dirt is placed. These minuscule organisms, even if not visible, are extremely important in the breakdown of this material and are important to the food chain:. Eliminating this block would put a big hole in the food chain. It has been the experience of Mr. Rohlke that artificial channels always lower the invertibrate life in the water; and as a result, the water quality goes down. This may not be catastrophic, per se, but there is a cumulative effect which manifests itself in a reduced production of seafood in the area, such as shrimp, oysters, trout and mullet, all of which are important sources of edible seafood. As to the pH, studies show that this pH balance is best when not altered more than one unit. Petitioner's property in question is of a type usually considered alkaline. Dredging would bring in acidic swamp water to mix with the alkaline surrounding water and would result in an alteration of more than one unit. The resulting impact would be adverse to the water quality. As to the question of specific conductives, saltwater has a conductive count of 30,000, freshwater of about 1,000. Stirring up the water by dredging would alter the specific conductives of saltwater and may result in a quick release of freshwater into the saltwater, thereby having a fatal effect on those microorganisms and macroorganisms which are dependent upon saltwater for life. In the area of dissolved oxygen (DO), when organic materials such as are found on the bottom of Petitioner's property are released, there is a strong probability that dissolved oxygen contained in the water will decrease. This would result in the death of fish and other organisms which use oxygen. There are many years of organic buildup on the bottom of the area to be dredged. This area is not a sandy bottom, and release of this organic buildup, with the resultant loss of dissolved oxygen, would be fatal to a large number of species in the ecosystem. Turning to the area of turbidity, which is the suspension of solid matter within the liquid (lack of clarity) the silt that would be stirred us as a result of the dredging, when suspended in the water, tends to suffocate fish and other life forms which breathe through water. This, in conjunction with lowered oxygen levels, creates a combination which is deadly to the many types of organisms. Not only does dredging have an immediate negative short-term impact, but it well may have a long-term impact, as well. The straight sides of a cut canal normally do not support growth which would strain out or hold silt carried by stormwater rushing through the canal. Also, since this is a silty, organic area rather than a clean, sandy bottom, the area is even worse. The turbidity curtain which Petitioner offered to ins tall downstream to curb the turbidity would be, in the opinion of Respondent, ineffective in a stream of flowing water. In considering the validity of Mr. Rohlke's evidence, as outlined above, however, one must consider that he did not take any water samples, did not check for any types of fish, did not take any samples of marine biology, but basically based his opinion and analysis on no more than a walk through the area and his unaided view of the property in question.
Recommendation On the basis of the above, it is RECOMMENDED: That the application of Victor T. Cheney for a permit to dredge a canal across the property as described in the application be denied. RECOMMENDED this 5th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of December, 1983. COPIES FURNISHED: Mr. Victor T. Cheney 374 Gardner Drive Fort Walton Beach, Florida 32548 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION VICTOR T. CHENEY, Petitioner, vs. CASE NO. 83-2314 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
