Findings Of Fact The Petitioner is a political subdivision of the State of Florida. Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. Respondent, MRT, is a real estate investment trust organized under the laws of the State of Maryland and authorized to do business in Florida. Royal Oaks Development Corporation is a Florida corporation, a wholly-owned subsidiary of Maryland Realty Trust. MRT is developing a parcel of land in Sections 33 and 34, T-2-N, R-1-E, Leon County, Florida, and Section 4, T-1-N, R-1-E, Leon County, Florida, of which approximately 60 acres has already been developed as Royal Oaks Unit No. 1, a recorded subdivision pursuant to Chapter 177, Florida Statutes. The balance of the 120 acres is yet to be developed, and is the subject of this proceeding. The specific activity for which the application for dredge and fill permit was submitted consists of improvements to a drainage-way running from the south boundary of the MRT property to a pond designated in the application as "Pond II", together with a drawndown structure, referred to as "S-15". Following submittal of the permit application, DER notified MRT of the receipt of the application and advised that both a permit under Chapter 403, Florida Statutes and a license for stormwater discharge under Rule 17-4.248, Florida Administrative Code, would be required. Following review by the Department, during which MRT was notified that the application in its original form would not be received favorably, MRT, on August 21, 1980, revised its application and based on such revisions, the Department, on October 10, 1980, notified MRT of its intent to issue the permit and license sought. As indicated in the Intent to Issue, DER has asserted jurisdiction over the dredge and fill activities in question contending that they are contemplated to either be in or connected to "waters of the State". Specifically, the Department's Intent to Issue states as follows: The Department has permitting jurisdiction under Chapter 403, Florida Statutes, Section 17-4.28, Florida Administrative Code, and Public Law 92-500 over dredge and fill activities conducted in or connected to certain waters of the State. The specific pond in question and the pond to which it is connected constitute waters of the State over which the Department has dredge and fill permitting jurisdiction as defined in Section 17-4.28, Florida Administrative Code. The project is not exempt from permitting procedures. Pond II is approximately four acres in size and consists of a western lobe of approximately one acre. Pond II is connected to the north to a waterbody known as Pond III/Foxcroft Lake". The vegetation in the south portion of Pond III is typical of fresh water vegetation that grows in submerged or wet areas. The vegetation in an existing well-defined channel between Pond II and the proposed location of structure S-15 is also comprised of water-tolerant species. Sagittaria subulata was observed in the channel in the area proposed for location of S-15. This plant species cannot tolerate dry conditions, indicating that water is present in the channel under most conditions. Further, no upland or pioneer species were observed in the channel, which also is indicative of the fact that the channel usually contains water. Water flows from Pond II to Pond III approximately 90 percent of the time. The base flow in the channel is approximately 2 cubic feet per second. Based on the storage capacity of Pond II, it is probable that flow occurs out of Pond II into Pond III under most conditions. Although 88.0 feet mean seal level is the design normal pond elevation expected after construction of S-15, the present observable elevation of Pond II appears to be between 89.94 and 90.09 mean sea level. Observations of the types of vegetation surrounding Pond II supports the conclusion that the existing normal level of Pond II is approximately 90.0 mean sea level. Pond III is a waterbody of approximately four acres in size and is a portion of the continuation of a larger 10 acre body of water referred to in this proceeding as "Foxcroft Lake". Pond III was the subject of a prior Department dredge and fill permit in which it was determined that Pond III constituted waters of the State subject to the dredge and fill jurisdiction of the Department. Pond III/Foxcroft Lake is a lake owned by more than one person, of approximately 14 acres of surface area and a maximum average depth of approximately 3 feet. Pond III/Foxcroft Lake discharges to and is connected directly to a waterbody known as Long Pond. Long Pond in turn is eventually connected to and discharges into Lake Lafayette. Without any mechanisms designed to treat the pollutants expected to be generated by the proposed project, the development by MRT of its 120 acres of property could reasonably be expected to have a significant adverse impact on the waters of Pond II, Pond III and Foxcroft Lake. Scientific studies demonstrate that potential pollutants generated from developments - single family, multi-family and commercial - have a significant impact on receiving waters if not treated before discharged. The project as presently designed will correct an existing source of pollution by removing sediment which is entering Pond II from the south from Shannon Forest Subdivision. This sediment has been deposited in the drainage- way between Shannon Forest and Pond II and is damaging and severely stressing biota in the drainage-way. This sediment has filled a portion of Pond II and could be expected to eventually discharge into Pond III/Foxcroft Lake. The pre-development rate of flow off the project site as it presently exists is approximately 600 cubic ft. per second. The project as proposed will reduce the rate of flow by 50 percent, to approximately 300 cfs. The project incorporates five mechanisms or abatement controls to treat contaminants customarily contained in stormwater: a grassed conveyance system; retention of natural vegetated areas; energy dissipators; sediment traps; and added storage. Grassed conveyance systems treat stormwater by the assimulation by plant communities of dissolved pollutants, such as nutrients, and the deposition of suspended pollutants that have absorbed to the sediment particles. Approximately 50 percent of the conveyance system in the Phase II development will be grassed swales and re-vegetated ditches. As many swales as possible will be used to convey the stormwater from the discharge at the street outfalls to the ponds. The main drainage ditch through the property will also be grassed. Natural vegetated areas to be left around the existing ponds will treat stormwater by assimilation and filtration in the same manner as the grassed swales and ditches. A one-acre parcel of wetlands is to be left between the southern most portion of the drainage-way and Pond II as described in MRT Exhibit No. 8 and in the revised permit application of August 21, 1980. The vegetation downstream of Pond II between the pond and control structure S-15 will also be left intact. Virtually all the vegetation bordering Pond II and Pond III will be left in place. Five energy dissipaters are to be constructed upstream of Pond II. These structures are designed to reduce the existing sedimentation and erosion problems by reducing the energy gradient and allowing the deposition of sediment, upon which absorbed pollutants have attached, into the accompanying sediment traps. Sediment traps are also to be constructed upstream of Pond II. Sediment traps treat stormwater by reducing the velocity gradient. Sediment and the pollutants absorbed to the sediment will drop out due to insufficient velocity. Storage will be increased in Pond II by the construction of control structure S-15 and by the planned excavation of Pond II. Added storage has a beneficial effect on water quality in that it allows additional sediment particles to settle out, allows additional time for the vegetation on the edge of the ponds to assimilate dissolved pollutants such as nutrients, and reduces the peak discharge velocity. The project is in the public interest in that it will alleviate an existing stormwater problem. In terms of probable efficiency, physical needs and costs, the project represents the best available treatment alternative. Based on existing technology, the system designed for this project is the most effective system within reasonable costs. The effectiveness of the stormwater treatment system depends on the presence of vegetation and will require less maintenance and attendant costs. There does not presently appear to be any local government effort to implement stormwater controls to address this problem or source. Petitioner submitted no evidence of such local government efforts. The system proposed by MRT will mitigate not only the effects of the discharge generated by the proposed development of the 120 acres of property owned by MRT, but will also mitigate the effects of an existing source of stormwater pollution. The system, as designed, is sufficient to afford the Department reasonable assurance that stormwater quality standards will not be violated. The parties stipulated that, should the requested permit and license be issued, they should incorporate the following additional condition: Roads and drainage facilities are to be owned and maintained by Leon County. All paving and drainage shall be done in accordance with the County's standards, details and specifications. In addition, MRT has instituted civil litigation against Leon County concerning the property involved in this proceeding. One of the allegations of MRT's complaint is that Leon County has, through the action amounting to inverse condemnation, acquired a drainage easement over the property for which MRT is now seeking the dredge and fill and stormwater permits. The plans submitted to DER by MRT with its application contain the following: When the construction plans for Phase III of the Royal Oaks development are prepared, these plans shall be submitted to the Department for evaluation for compliance with the original stormwater review.
Findings Of Fact The parties stipulated to the following facts and introduction of the following exhibits: The Petitioner filed an application, Respondent's Exhibit 6, with the Army Corp of Engineers and the State of Florida Department of Environmental Regulation to reconstruct the breach in the dike surrounding Big Blue Springs. The Petitioner sought and obtained a letter granting an exemption from the State of Florida Department of Environmental Regulation dated February 3, 1993, Respondent's Exhibit 2, which permitted the placement of 280 cubic yards of fill into the breach of the dike around Big Blue Springs. The Petitioner sought and obtained a letter dated April 6, 1993, Respondent's Exhibit 3, from the Department of Natural Resources, which states that the proposed activity (reconstruction of the dike) was exempt from the need for a wetland resource permit. The Petitioner obtained a letter dated July 19, 1993, Respondent's Exhibit 4, from the Army Corp of Engineers approving reconstruction of the dike surrounding Big Blue Springs. The dike and springs are not located in an aquatic preserve, in Monroe County or contiguous to an unbridged, undeveloped coastal barrier island. See Tx-Page 13, line 24 et seq. Public notice was given of the intent to issue a permit for the reconstruction of the dike. See Tx 14, line 18 et seq. After receiving the aforementioned approvals, the Petitioner repaired the breach in the dike. Respondent's Exhibit 1 is a certified copy of the agenda item for the Governor and Cabinet, Board of Trustees' meeting of November 9, 1993, which reflects that the Petitioners' request for a 25 year public easement to maintain the dike was denied, that the staff was directed to restore Big Blue Springs to its natural features, and that the letter of April 6, 1993 regarding filing and restoration of the dike and breach in the dike was rescinded. The transcript of the Trustees' November 9,1993 meeting, Exhibit 5, was received into evidence. The Petitioner withdraws any contention or allegation that the Respondents acted contrary to the facts or law with regard to Trustees' denial of the 25 year public easement and the Trustees' direction to staff to restore the spring to its natural features. Tx-9. Big Blue Springs lies below the ordinary high water line. Tx-12. The Petitioners' sole assertion is that the Trustees' could not rescind retroactively the approval to repair the breach after Petitioners had repaired the breach. The decision of the Trustees on November 9, 1993 was intended to be prospective in nature, and did not indicate that the filling and reconstruction of the breach was done contrary to federal or state law. Based upon the foregoing stipulations, the Petitioner moved that the Hearing Officer make summary factual findings on the issue of whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. The Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. Thereafter, the parties further stipulated that: The Respondents will not pursue any action against the Petitioner asserting that the filling or reconstruction of the breach in the dike was unlawful or contrary to law. The Petitioner will not pursue any action against the Respondent to recover any expense or damage allegedly incurred by filling and reconstructing the dike.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: Based upon the stipulation of the parties, there are no further controversies pending between the parties. Therefore, this case is closed and notice thereof is provided to the parties by copy of this order. DONE and ENTERED this 29th day of September, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1995. COPIES FURNISHED: Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A. 320 Highway 41 South Post Office Box 250 Inverness, Florida 32651-0250 Evelyn Davis Golden, Esquire John W. Costigan, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Floirda 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Floirda 32399-2400
Findings Of Fact On December 9, 1982, Petitioner filed with Respondent a dredge and fill permit application to remove gates and wing-walls from a double-lock canal system presently installed at the Palmetto Point Subdivision in Lee County, Florida, adjacent to the Caloosahatchee River. On January 6, 1983, Respondent sent a "completeness summary" to Petitioner, along with a letter advising Petitioner that its permit application was incomplete, and requesting additional information. Petitioner responded to the January 6, 1983, completeness summary by submitting additional information to Respondent on or about February 23, 1983. On March 21, 1983, Respondent sent a second completeness summary requesting further additional information from Petitioner. By letter dated May 18, 1983, Petitioner's attorney advised Respondent that submission of additional requested hydrographic information and water quality data was not justified. The letter further advised that Petitioner intended to rely on the information already submitted, and requested, pursuant to Section 403.0876, Florida Statutes, that Respondent begin processing the permit application. The letter further indicated that petitioner was submitting under separate cover a request that Respondent apply the "moderating provisions" of Rule 17-4.244, Florida Administrative Code, to the application. The aforementioned rule is entitled "Mixing Zones: Surface Waters." Also on May 18, 1983, Petitioner's counsel sent another letter to Respondent requesting the aforementioned "Mixing Zone." The letter requested the "maximum mixing zone" allowed under the applicable Provisions of Rule 17- 4.244, Florida Administrative Code. Petitioner had not requested a mixing zone be applied to the permit application prior to the request contained in its May 18, 1983, letter. By letter dated June 17, 1983 Respondent, in response to Petitioner's May 18, 1983, letters, advised that: The additional information [which] was received on May 19, 1983, was reviewed; however, the items listed on the attached sheet remain incomplete. Evaluation of your proposed project will continue to be delayed until we receive all requested information. Respondent's June 17, 1983, letter included a completeness summary, which asked for additional information, including the following requests concerning mixing zones: Your request for a mixing zone is applicable pursuant to F.A.C. Rule 17-4.244(6). Please provide a map indicating the outermost radius of the mixing zone (no more than 150 meters) and the period of time required. The completeness summary acknowledged Petitioner's refusal to supply additional information concerning hydrographic data and water quality information, and indicated that Respondent would evaluate the project accordingly. By letter dated August 29, 1983, Respondent advised Petitioner that it had been 73 days since notification of the incompleteness of the permit application with regard to the mixing zone request. This letter requested Petitioner to advise Respondent if it wished to withdraw the application, request additional time, or discuss questions regarding the application. The Petitioner did not respond to this communication. On September 9, 1983, Petitioner's attorney forwarded a letter to Respondent requesting a default permit pursuant to Sections 120.60(2) and 403.0876, Florida Statutes. Until this letter, other than a prior oral communication on September 2, 1983, notifying Respondent that the default request was forthcoming, Petitioner had not contacted Respondent concerning the permit application since its May 18, 1983, letters. On October 13, 1983, Respondent advised Petitioner by letter that the mixing zone request constituted a revision of the application and that the information received to evaluate the mixing zone request was incomplete. Petitioner was also advised that since the additional information requested had not been received, the application remained incomplete and Petitioner was not entitled to a default permit. Whether or not a mixing zone is applied to a permit application is significant because it determines where state water quality standards must be met, either adjacent to the proposed project, or up to 150 meters away from the project location. Under Rule 17-4.244(6), Florida Administrative Code, the 150 meter radius is measured from the point of generation of turbidity or pollution. Since the two locks to be removed were 80 feet apart, it was unclear whether Petitioner intended the point of generation for measuring the radius of the mixing zone to be the northern lock, the southern lock, or some other point. It is equally unclear whether Petitioner intended the mixing zone to extend south into the canal as well as north into the Caloosahatchee River. Petitioner never contacted Respondent to clarify the dimensions of the mixing zone being sought, even after Respondent requested a map indicating the outermost limits of the mixing zone in the June 17, 1983, completeness summary.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: On May 3, 1989, Cersosimo submitted an application for a Management of Surface Water Permit to the District. Subsequent to the submission of this application, the Polk County Board of County Commissioner (Commissioners) added an additional requirement to Cersosimo's Planned Unit Development (PUD) that there was to be a pre- development/post-development match for basin runoff in the event of a twenty- four hour one hundred (100) year storm event, i.e. following completion of this project (post-development) it will handle the same outflow or flow of storm water for the twenty four-hour one hundred-year storm event as in a pre- development situation. Based on the Commissioners' requirement, the design of the PUD was amended to provide for the required storage capabilities. On July 26, 1990, Cersosimo submitted to the District, its amended application, Management of Surface Water Permit No. 405733.01 incorporating the changes necessitated due to the Commissioners' additional requirement as to storm water runoff. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County Engineering Division, noted in a letter of that same date referring to Cersosimo's modification of Retention Pond No. 300 for the project in question that "this revision appears to meet the PUD condition by the Board of County Commissioners for drainage and compliance with the Surface Water Management Ordinance". The application of July 26, 1990, amends the original application by superceding and replacing that application. In connection with the application for permit, soil borings were taken at the site location for the retention ponds in order to establish the elevation of the seasonal high water level (SHWL) for that site. The borings indicated an elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The District conservationally established the elevation for the SHWL of this particular site as 112 feet AMSL. The floor elevation of the lowest retention pond was established at 114.00 feet AMSL. The elevation of the surface of Lake Mabel for the ten year flood warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z), Florida Administrative Code. District policy requires the floor elevation of a dry retention pond to be a minimum of one foot above the established elevation of the SHWL of that particular site. Even though the surface elevation of Lake Mabel for the Ten Year Flood Warning Level was established as 114.50 feet AMSL, there is insufficient evidence to show that there was lateral migration of water from the lake's edge to the site of the soil borings such that it was evidenced by a demarcation in the soil profile. To the contrary, the evidence shows that there were demarcations in the soil profile to establish an elevation for the SHWL for this site of 110 feet to 112 feet AMSL. The designed weir crest in the lower retention pond, Pond No. 300, has an approximate elevation of 118.50 feet AMSL which prevents water from coming over the top into the pond in the event Lake Mabel reaches the ten year flood level warning elevation of 114.50 feet AMSL. The distance from the present water edge of Lake Mabel to the bottom of Pond No. 300 would be approximately 600 feet, laterally and if the lake reached the ten year flood level warning elevation of 114.50 feet AMSL, the lake's water edge would be approximately 100 feet laterally from the bottom of Pond No. 300. There was sufficient evidence to show that even if the surface elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention ponds as presently proposed with a floor elevation of 114.00 feet AMSL would still percolate sufficiently, even though the percolation may be diminished from what it would be under present conditions, so that there would still be a pre- development/post-development match for basin runoff. Cersosimo can give reasonable assurances that the surface water management system as presently proposed will not diminish the capabilities of Lake Mabel to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code. Among others, the following specific conditions in pertinent part will be placed on the permit, if granted: . . . The applicant shall visually monitor the ponds on a monthly basis to ensure that the ponds are dry within 36 hours from the end of the last rainfall event. Should the ponds fail to percolate the required water quality volume per District criteria, a permit modification shall be required. . . .
Recommendation Based upon consideration of the foregoing Findings of Fact and Conclusions of law, it is, recommended that the Southwest Florida Water Management District enter a Final Order granting the application for Management Surface Water Permit No. 405733.01, as proposed by the District. RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. The Petitioner did not submit any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by Respondent Cersosimo 1. - 7. Adopted in Findings of Fact 1-7, respectively. 8. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively. 11. Adopted in Findings of Fact 12 and 13. 12.-13. Adopted in Findings of Fact 13 and 11, respectively. Respondent District adopted Respondent Cersosimo's Proposed Findings of Fact, therefore the same rulings would apply as was applied to Respondent's Cersosimo's Proposed Findings of Fact above. COPIES FURNISHED: Catherine D'Andrea, Esquire Susan Dietrich, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Gary L. Gandy Omega Farm Post Office Box Omega Waverly, Florida 33887 Beach A. Brooks, Jr., Esquire Post Office Drawer 7608 Winter Haven, Florida 33883 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, FL 34609-6899
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to connect his canal to the Caloosahatchee River be DENIED. Respectfully submitted and entered this 22nd day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1976.
The Issue Whether Michael Chbat's 2008 application for a Wetland Resource Permit (WRP) to construct a culvert extension across his property in Walton County, Florida, should be approved?
Findings Of Fact La Grange Bayou Estates La Grange Bayou Estates is a residential subdivision in Freeport, Walton County, Florida. The subdivision lies to the north of the shoreline of Choctawhatchee Bay. It can be viewed as divided roughly in half between bayfront lots south of an east-west road that transects the subdivision and lots that are north of the road. The subdivision is platted and the plat is in the public records of Walton County. Filed with the Clerk of the Circuit Court in and for Walton County, Florida, on September 15, 1982, the plat ("the 1982 Plat") shows 29 residential lots in the subdivision as of that date. See Petitioner's Ex. 6. Lots 1 through 16, according to the 1982 Plat, are the bayfront lots, south of a 40-foot wide road designated as a private road in the plat. That road is now known as Alden Lane. Wetlands over which the Department has jurisdiction ("jurisdictional wetlands") comprise much of the southern portion of bayfront lots and the drainage easement. Among the bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot 8 which belongs to Mr. Sheehey. A 50-foot easement lies between Lot 9 and Lot 8 and is described more fully below. The presence of jurisdictional wetlands on Mr. Chbat's lot over which he hopes to install the culvert extension requires that he obtain a WRP. To the north of Alden Lane are lots numbered by the 1982 Plat as 17 through 29. The lots are served by Alden Lane and, in what is roughly the northeast quadrant of the subdivision, by two other roads. One of the roads is shown on the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial photograph introduced into evidence by Chbat designates the road "unnamed." See Chbat Ex. 5. The other is designated as a "graded county road," on the 1982 Plat. By 2006, it had come to be known as Beatrice Point Road. Id. Beatrice Point Road transects a pond that runs roughly 340 feet (excluding about 30 feet of roadway) in a northeasterly direction from Alden Lane to the southern edge of an area north of the subdivision shown on the 1982 Plat to be un-platted. The pond is most likely the result of a "borrow pit" dug in order to obtain fill for the construction of the roads when the subdivision was initially developed. The southern boundary of the pond lies along approximately 140 feet of Alden Lane's northern edge. The pond is across the street from Lots 9, 10 and 11 of the subdivision. The pond is also not far northeast of the 50-foot easement (the "Drainage Easement") between Lots 9 and 8. The Drainage Easement The Drainage Easement is just to the west of Lot 9. It is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id. The 50-foot wide Drainage Easement runs the length of the western boundary of Lot 9 and the length of the eastern boundary of Lot 8. The northeast corner of the Drainage Easement is approximately 30 feet from the southwest corner of the pond separated from the pond by the roadway of Alden Lane. The eastern boundary of the Drainage Easement is 226.37 feet in length, or if taken to the middle of Alden Lane, 246.3 feet. The western boundary is 206.13 feet long or if taken to the middle of the road, 226.65 feet. The purpose of the Drainage Easement, as is evident from its denomination in this recommended order, is drainage. As Mr. Street definitively put it at hearing, it is "now and always has been intended to drain stormwater to the [B]ay." Tr. Vol. III at 179. Mr. Street's opinion of the function of the Drainage Easement is supported by drawings submitted by Mr. Chbat as part of the WRP application. The drawings show that the Drainage Easement's function is facilitated by three culverts north of the Easement (referred to during the hearing as "pipes") each of which is intended to direct stormwater at its point of discharge toward the Drainage Easement. See Chbat Ex. 1. One of the culverts ("the Drainage Ditch Culvert") serves a drainage ditch that is to the north of the Easement and Alden Lane. According to the drawings, the drainage ditch lies on the other side of the "un-named road" from the pond, that is, to the west of the pond, and is some 40-to-50 feet north of the Drainage Easement. The Drainage Ditch Culvert extends from the ditch to the southern half of Alden Lane from where it appears from the application's drawings that stormwater would be conveyed to the western side of the Drainage Easement along it's border with Lot 8 and on toward the Bay. In fact, it is a functioning culvert that "conveys water from a swale on the side of the road into the [D]rainage [E]asement." Tr. 64. Once in the Drainage Easement, according to the drawings, the water should flow into the Bay out of a "cut," id., that is labeled on the drawings as an "existing trench." See Chbat Ex. 1. The trench, however, has been filled in with sand by tidal activity or sediment deposited by stormwater or both. The trench has not been maintained, and it no longer exists. The other two culverts (the "Pond Culverts") lie east of the Drainage Ditch Culvert. They catch overflow from the pond caused by stormwater and convey it under and through Alden Lane toward the Drainage Easement. The westernmost Pond Culvert (the "Western Pond Culvert") appears to terminate in Alden Lane near its southern edge just north of the Easement. At the time of hearing, however, it was not functioning properly. "[I]t is full of sand and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west is clogged and it is not functioning." Tr. Vol. I at 64. It is also at an elevation that would keep it from serving drainage purposes in all but the most severe storm events. See Chbat Ex. 9 at 22. The other Pond Culvert, (the "Eastern Pond Culvert") terminates in the northwest corner of Lot 9 at the border between Lot 9 and the Drainage Easement about 10 feet southeast of the terminus of the Western Pond Culvert. The Eastern Pond Culvert is the culvert with which the Amended Permit is concerned, that is, it is the culvert to be extended by the permit. Calling it a "pipe," Mr. Street offered the following about the assistance the Eastern Pond Culvert offers in conveying stormwater into the Drainage Easement and down to the Bay: There is currently a pipe that discharges into that easement. There . . . was an attempt to place the water from the . . . pond into the easement. And the natural flow of water on this entire property from the road to the [B]ay is north to south. At some point, at least 2004, that drainage easement contained a conveyance at its southern end that would safely discharge stormwater to the [B]ay. Tr. Vol. III at 179-80. Petitioner Sheehey and Lot 8 Thomas Sheehey is the owner of Lot 8, where he has a residence in which he makes his home. He has lived in the residence approximately five years. During that time, Mr. Sheehey has fished in the Bay and enjoyed the use of his kayak and his waverunner on the Bay. He also enjoys "sitting down having a cup of coffee and looking at it," tr. vol. III at 151, as well as watching his neighbors fish. The recreational uses to which he puts the Bay is the reason he chose to purchase a bayfront lot in La Grange Bayou Estates. Over the period of time that he has resided on Lot 8, Mr. Sheehey has observed the effects of rain events on his lot and well as lots close to Lot 8. He has also taken pictures of his property and the near-by lots. Among the photographs were four taken after rain events or "after a wet period," tr. vol. III at 88, at some point in the last four years. The four photos were introduced as a composite exhibit, Petitioner's Ex. 2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey could not specify when the pictures were taken in the past four years other than that if a picture had a certain dock in it, then it was taken after January of 2009. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot looking toward the Bay. It shows an area of the lot under water separated from the Bay by a ridge. Petitioner's Ex. 2B is a picture taken from Lot 13 looking west across Lots 12, 11, 10, 9 "down through 8." Tr. Vol. III at 86. Much of what is photographed is among trees and vegetation emerging from water standing above the surface of the soil. Petitioner's Ex. 2C is a picture taken from Alden Lane looking south across Mr. Chbat's property. It shows a wide swath of water that extends from the road across most of the property to the Bay. The water is either in a swale or constitutes overflow outside the swale. The most recent of the four is Petitioner's Ex. 2D, which shows the dock referred to by Mr. Sheehey that was built in early 2009. It is a picture taken from Lot number 13 toward the west through Lots 12, 11, 10, 9. Like the others, it shows vegetation standing in water to the north of the Bay. Taken together, the four pictures in Petitioner's Exhibit 2 demonstrate that significant portions of the lots depicted are under water following sufficient amounts of recent rain. The four photographs that comprise Petitioner's Exhibit 2 are not the only photos taken by Mr. Sheehey that were introduced into evidence. Three other photographs of Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were admitted following testimony about them from a long-time observer of the flow of water from Alden Lane to the Bay. A Long-time Observer Thomas Eugene Cummins had lived in La Grange Estates "[t]wo months shy of 20 years," tr. vol. III at 7, at the time of his testimony. His house was the fourth to be constructed in the subdivision. Over the two decades of his residence, the pond between Alden Lane and the property north of the subdivision has been in existence. Consistent with the drawings submitted to DEP as part of the application, when asked where the pond overflows today, Mr. Cummins answered "it drains under Alden Lane on to Mr. Chbat's lot." Tr. Vol. III at 8. Asked by Mr. Chesser at hearing, "When the water comes out of the pond, is it possible to know where it spreads?"1/ Mr. Cummins testified: On really heavy rains, I have watched the normal color of the pond change from its dark blackish gray color into the reddish color that the clay has washed down into it, flow under Alden Lane and on to Mr. Chbat's lot, and then proceed west through the wetland on lots eight, seven, six, and my five, and turn reddish color even in my lot. Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red color" of the stormwater: red clay introduced to La Grange Estates by the County half a decade earlier. Mr. Cummins testified: Beatrice Point Road, which is the road that runs over the pond, about five years ago the county did some repair on the road and actually put red clay in certain spots to even it out. Tr. Vol. III at 9. Prior to the county's work on the road referred-to by Mr. Cummins, there had been no red clay in the neighborhood. Alden Way, for example, has no red clay. It is a road composed of shell. The only red clay in the subdivision is that which is on Beatrice Point Road. The water that runs onto Mr. Cummins' lot following a heavy rain rises to as much as 12 inches.2/ The water rises as high as it does because it is held back by a naturally-occurring land formation between the Bay and Mr. Cummins property. This geo-formation was referred-to at hearing as the ridge line or the ridge. The Ridge The Ridge was described by Mr. Cummins as a vegetated mass of earth that most of the time, even in heavy rains, sits above the water that collects on the bayfront lots of La Grange Estates. The Ridge prevents a substantial amount of stormwater runoff from entering the Bay from the wetlands on the southern portion of the subdivision's bayfront lots. For that reason, the ridge is called "our upland,3/" tr. vol. III at 13, according to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in width "anywhere between 10 feet . . . up toward Mr. Chbat's lot, down to [Mr. Cummins'] lot where its around 30 or 40 feet [wide.]" Id. (It may extend, in fact, across all of the bayfront lots.) The ridge meanders not far from the shoreline. Id. In some places it is as narrow as five feet. The height of the ridge varies as well from as low as one foot to as high as two and half feet. Mr. Street also testified about the Ridge, referring to it in his testimony as a "ridge line": Now, there is a ridge line, and there's been a lot of testimony about this ridge line, that it exists across all of the lots. My testimony was, essentially, related to the review that I did, which was primarily associated with lots eight and nine, and the drainage easement between them. And from what I can tell, the elevation of that ridge line is give or take three. Elevation three, not a height of three. An elevation of three. It could be lower, and perhaps, is higher. And its subject to the vagaries of a number of factors, flow of stormwater, wave action, tidal influence, and the like. And these accretions and depositions of sand over time change that ridge line. And sometimes, it opens up. And sometimes it may not have a natural opening, depending on where you are along that entire stretch of beach. * * * [T]o the extent there is an opening in that ridge line, water will flow naturally to the bay. Tr. Vol. III at 180-181. An "east west flow of water," tr. vol. III at 181, along the bayfront lots, that is, a flow of water either in an easterly direction or a westerly one is contrary to the flow from Alden Lane north of the lots to the Bay south of the lots. Whether flowing east or west, the water in the southern portions of the bayfront lots is "controlled by the ridge line." Id. In other words, stormwater that flows from north to south across the bayfront lots, including Mr. Chbat's and the Drainage Easement, is going to collect and begin to flow from east to west or west to east at some point north of the Ridge before it drains into the Bay. The only exception to east-west flow, as made clear by Mr. Street, is when and if there is an opening in the Ridge that allows the water otherwise held back by the Ridge to flow southward into the Bay. The east-west flow of the water along the Ridge was described at hearing as "unnatural." Id. In fact, it is not un-natural. The Ridge is the cause of the east-west flow and, as Mr. Street testified, the Ridge is the result of natural processes such as tidal influence, wave action, accretion and deposition of sand.4/ The Ridge is shown in Petitioner's Exhibit 7A,5/ another photograph taken by Mr. Sheehey. The ridge as shown in the picture is well vegetated and above water to its north and higher than the Bay to its south. It is quite clear that if there is no opening in the ridge to the Bay, stormwater north of the ridge is forced to flow in east-west directions and is prevented from flowing into the Bay. Petitioners' Exhibit 7B is a photograph of the southern terminus of a swale (see paragraphs 40 - 49, below) on Mr. Chbat's property. It shows the swale cut through the Ridge. Water, however, does not appear to be running from the end of the swale into the bay. It appears that the end of the swale is a few feet from the Bay separated by a narrow sandy area on the shore. Nonetheless, the photograph shows that there is potential for stormwater to flow from the swale when the swale has more water in it. Petitioner's Exhibit 7C is a picture of the pond6/ across the street from Mr. Chbat's Lot 9. Mr. Chbat and Lot 9 Michael Chbat is the owner of Lot 9. He purchased the lot "[t]o build a house on it." Tr. Vol. I at 22. Because he has family close by (in Fort Walton Beach), Mr. Chbat expects to use a house built on the lot for weekend visits. His ultimate aspiration is to live in a house on Lot 9 after he retires from his position as a construction engineer with the City of Tallahassee. At hearing, Mr. Chbat described Lot 9 on the day he bought it: "the lot was overgrown. It drained from north to south. It had water standing on it. And it had a pipe [the Eastern Pond Culvert] on the northwest corner discharging." Tr. Vol. I at 23. He also described the state of the lot at the time of hearing. The Eastern Pond Culvert on the northwest corner was still there. The lot had been cleared to some extent to rid it of invasive species. Overgrown vegetation was trimmed or cleared to make room for a driveway permitted by the Department and "a parking pad in the front area of it, as well as an access pad in the uplands." Id. A dock had also been constructed from the property into the Bay. The most significant difference between the lot at the time of purchase and the lot at the time of hearing for purposes of this proceeding is that the lot now has a swale (the Swale) that runs from the point of discharge of the Eastern Pond Culvert "all of the way to the bay area." Id. The Swale The Swale was put in sometime after March 20, 2007, as the result of a Settlement Agreement fully executed on that date "By and Between Michael Chbat and Thomas L. Sheehey." Petitioner's Ex. 10. The Settlement Agreement followed events that commenced in 2004 when Mr. Chbat filed an application (the "2004 Application") with DEP for a WRP primarily to construct a house and a boardwalk leading from the house on Lot 9 to a dock in the Bay. The 2004 Application also proposed the extension of the Eastern Pond Culvert with a "pipe" along the western boundary of Chbat's property in a manner substantially similar to the culvert extension allowed by the Amended Permit that is the subject of this proceeding. On October 28, 2005, DEP proposed that the 2004 Application be granted. The permit (the "Proposed Original Permit") was assigned No. 66-0235320-001-DF. See Petitioner's Ex. 10, at 2. The Proposed Original Permit was challenged by Mr. Sheehey when he "filed a Petition for Administrative Hearing contesting certain action authorized under the [Proposed Original] Permit . . . specifically the relocation of a drainage pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the Settlement Agreement that they had "determined that it is in their best interests to settle this matter amicably pursuant to the terms hereafter". Id. Among the terms is that Chbat would file an Amended Application. See id. The agreed-to amendment to the 2004 Application was attached to the Settlement Agreement as Exhibit "A," a drawing of a "Drainage Swale Plan," produced by Genesis Group for Mr. Chbat. The drawing depicts a swale that runs from the discharge point of the Eastern Pond Culvert nearly the full length of the western boundary of Lot 9 to the Bay. See Exhibit "A" to Petitioner's Ex. 10. The Swale was designed to take the place of the 2004 Application's proposal for a "pipe"7/ attached to the point of the discharge from the Eastern Pond Culvert. The Settlement Agreement received the support of DEP because the Department believed that a swale would assist in improving the quality of the stormwater discharged to the Bay over the untreated discharge from the end of the "pipe." Pursuant to the terms of the Settlement Agreement the 2004 Application was amended. The Department amended the Proposed Original Permit accordingly and final agency action was taken with the issuance of a permit to Mr. Chbat (the "Final Original Permit") found in DEP Permit File No. 66-0235320-001- DF. Installation of the Swale The Swale was installed, but it did not work as intended. The result of the Swale's installation was more water on the lot rather than less. Mr. Chbat described the after-effects of the Swale: "it started bringing more water to the lot . . .". Tr. Vol. I at 31. The increased amount of water is the result of several factors, one of which is tidal influence: the tide from the Bay pushes water into the Swale. "[A]bout halfway on the swale . . . that water from the bay was meeting the water from the pipe . . .". Id. The water from the Bay tide and the stormwater conveyed by the Swale would meet at "about the middle of the span of the swale." Id. The result was "a lot more water," id., on the lot. Mr. Thomason confirmed Mr. Chbat's assessment that the reason the Swale did not function as effectively as necessary is tidal flow onto Lot 9 from the Bay particularly from high winds. But tidal flow onto Lot 9 and the interruption in the discharge of stormwater through the Swale are not the only problems. There is also a maintenance factor that accompanies tidal flow: sand deposition. Mr. Thomason elaborated: "[D]uring storm events or [just normal] wave action in the bay, sand is brought back up on to . . . the sandy area at the end of [Lot 9] next to the [Bay.]"8/ Tr. Vol. I at 62. The influx of sand onto Lot 9 is not just a problem for adequate functioning of the Swale. The Drainage Easement has "the same problem." Id. Both the Swale and the Drainage Easement are plagued by deposition of sand pushed landward by normal tidal influences and storm events. Maintenance of the Swale and the Drainage Easement, therefore, would assist the drainage of stormwater into the Bay. The tidal influence and maintenance issues that Mr. Chbat encountered with the Swale led him to apply for a different and new permit. That application was filed in 2008. The 2008 Application Mr. Chbat filed a "Joint Application for Works in the Waters of Florida" with DEP on August 1, 2008 (the "2008 Application"). See Chbat Exhibit 1. The work to be approved was similar to the work originally proposed in the 2004 Application in that both applications proposed installation of a "pipe" to be fixed to the discharge point of the Eastern Pond Culvert that would run along the western boundary of Lot 9 toward the Bay. A description of the work is contained in Section 10 of the 2008 Application: "Extension of an existing stormwater pipe within a private lot approximately 150 feet. The slope for the proposed pipe extension will be at minimum so that stormwater will be treated further, and minimizing erosion." Chbat Ex. 1 at 3. After the filing of the 2008 Application, Mr. Chbat learned that Mr. Sheehey objected to the newest Chbat proposal because he believed 150 feet is not lengthy enough to clear the Ridge. See Chbat Exhibit 2. In order to cure the objection, Mr. Chbat proposed a modification to the 2008 Application. He attached a "sealed and signed drawing," id., to a letter dated September 18, 2008, that he submitted to DEP. The drawing shows the extension to be 177 feet, 27 feet more than initially proposed by the 2008 Application. The additional 27 feet was intended to ensure that the discharge would be directly into the Bay in order to "eliminate any possible run-off impact to adjacent properties." Id. The modification was accepted by DEP." See exhibit number 19/ attached to the Amended Permit, Chbat Exhibit 4. There was conflicting evidence in the proceeding on whether the outfall from a culvert extension of 177 feet will be bayward of the Ridge. The issue was put to rest by Mr. Street’s testimony in rebuttal at the hearing. See Tr. Vol. III at 194 and 203-4. His testimony establishes that the point of discharge at the end of the culvert extension will clear the Ridge so that the discharge will be directly into the Bay. The Mound The culvert extension is designed at an elevation and with cover (presumably sod). The extension runs through jurisdictional wetlands and segments them. It does not, however, isolate any portion of the wetlands. The wetlands on Mr. Chbat's property and those to the immediate east and west of it, therefore, will retain their status as jurisdictional wetlands should the extension be installed. With its sod cover, the culvert extension will be a mini-berm (or a "mound" as Mr. Street called it) at an elevation of 17 to 18 inches above grade. Water that pools to its west will no longer be able to flow eastward of the mound (except rarely under the most extreme weather events.) Conversely, water that collects to its east will no longer be able to flow westward of the extension. It would have to be a severe storm event for water to rise above the mound. Mr. Chbat has never seen water rise to 18 inches above grade and Mr. Cummins testified the highest water ever gets on his property is roughly 12 inches. The Department approved the 2008 Application as modified to lengthen the extension to 177 feet and issued the Amended Permit. But an incorrect and critical assumption was made during review of the application that related to the mound. Review of the 2008 Application During his review of the application, Mr. Street, as DEP's stormwater engineer, assumed from the drawings that the Drainage Easement is functional.10/ The assumption was expressed in Mr. Street's testimony in the Department's case-in-chief: Q [D]id you determine whether the pipe, as it would be mounded . . . [the culvert extension covered in sod] . . . would create problems for storm water flow? A I looked at that. There were two conclusions that I drew. One was that the mound would create a higher water elevation on the Chbat property east of the mound, but would not create standing water west of the mound extending into the [Drainage E]asment . . . . Which on the drawings that I reviewed showed an existing trench at the south end of that easement. And it was my opinion that any water that fell west of the mound would exit through the easement. Tr. Vol. II at 92 (emphasis added.) Mr. Street's assumption that water would not pool to the west of the mound in the Drainage Easement and toward Mr. Sheehey's property was contradicted by Mr. Sheehey's stormwater engineer, Mr. Porterfield. THe Porterfield Testimony and Support for It at Hearing The testimony at hearing of Mr. Porterfield, who conducted a site visit, established the opposite of what Mr. Street assumed. The volume of stormwater runoff that pools east of the mound, that is, water on Lot 9, will not be as great as the volume as the water that pools west of the mound. Water that would have flowed onto Lot 9 from the Eastern Pond Culvert will flow directly to the Bay via the culvert extension. The extension will also protect the Drainage Easement and Lot 8 from water that would have flowed from the Eastern Pond Culvert onto that property. But there is a significant difference between stormwater to the west of the extension and to the east. To the extension's west, the Drainage Easement and Lot 8 will have to contend with stormwater from the Drainage Ditch Culvert, the culvert north of Alden Lane that does not convey stormwater from the pond but that like the Pond Culverts has a discharge point directed at the Drainage Easement. How often and to what extent pooling of stormwater will occur west of the mound due to its presence is difficult to determine on the state of this record.11/ No studies or analyses of the likelihood and severity of storm events and the volumes of stormwater runoff that would be produced by them were conducted by any of the stormwater engineers in the case nor were any such analyses done with regard to pooling caused by the presence of the covered culvert extension. The testimony of Mr. Porterfield, however, and other evidence, demonstrates that that additional collection of water west of the mound caused by the mound will occur following heavy rain. Mr. Street was present in the hearing room throughout the entire hearing, including during the presentation of Mr. Sheehey's case. As Mr. Street candidly testified on rebuttal after he had heard all the evidence: I would also maintain that the drainage easement which has signs of a historical usage as a drainage easement with a trench, in fact, that conveys water safely to the bay, that should be re-established and maintained. That’s what it’s there for.” Tr. Vol III at 181 (emphasis added.) Thus, it became clear to Mr. Street after listening to all the evidence in the case that the Drainage Easement has not been properly maintained. The trench that was expected to carry stormwater toward the Bay no longer exists. In short, the testimony of Mr. Street, for all his many strengths as a witness, falls short of supporting the position of the Department and Mr. Chbat. Having never visited the site,12/ he approved the project on the basis of drawings that do not conform to the on-site physical reality. When presented with the evidence at hearing that the Drainage Easement is not functioning, he championed re-establishment and maintenance of the Drainage Easement. Mr. Chbat placed part of the Swale's functionality problem on the tide pushing stormwater northward but his case also recognized the maintenance problem caused by deposition of sand that besets the Swale. Mr. Thomason, moreover, recognized that the Drainage Easement has the same maintenance issue. Mr. Chbat's stormwater engineer testified During storm events or just normal wave action in the bay, sand is brought back up on to. . . the sandy area at the end of [Chbat's] lot next to the water. And so that . . . tends to inhibit the natural flow down the swale . . . we have the same problem on the drainage easement . . . where sand builds up in that discharge. Tr. Vol. I at 62 (emphasis added). From this record, it is clear that neither the Swale nor the Drainage Easement functions properly. Their functional status, moreover, is due in significant part to lack of maintenance. It may be that maintenance ultimately will not solve the problem; maintenance efforts to keep the Swale and Drainage Easement clear of the sand deposited by tidal activity may require too much effort for them to be reasonably required. But that evidence was not produced. Indeed, the record was silent as to any maintenance efforts with regard to the Swale by Mr. Chbat or with regard to the Drainage Easement by the owner of the easement. The record is also silent as to whether DEP voiced any concern about the maintenance issues that beset the Swale. It is clear that concern was not raised by the Department in regard to the Drainage Easement until the rebuttal phase of the hearing, since the assumption was made that the easement was properly maintained. Whatever communication may have occurred with regard to maintenance issues among the parties, the Department issued the Amended Permit.13/ The Permit/Authorization Number for the Amended Permit is 66-235320-002-DF.14/ Issued December 19, 2008, the Amended Permit has an expiration date of December 19, 2013. The expiration date coincides with the construction phase of five years on the face of the Amended Permit. See Chbat Ex. 4. Mr. Sheehey Challenges the Amended Permit On January 6, 2009, Mr. Sheehey, pro se, filed with DEP a petition (the "Petition") seeking a formal administrative hearing with regard to "Amended Wetland Resource Permit 66- 00235320-002-DF." Although the Petition makes reference to the Amended Permit, it seeks in the first instance enforcement of the Settlement Agreement that relates to the Final Original Permit. The Petition states: "Petitioner believes that the Florida Department of Environmental Protection has jurisdiction over this matter and should enforce the March 20, 2007 Settlement Agreement which requires that Permittee act in conformance with Exhibit 'A' of the Agreement [the drawing of the Swale]." In the event that DEP declined to enforce the Settlement Agreement, the Petition sets out disputed issues of material fact that relate to issuance of the Amended Permit. The Petition was referred to DOAH on February 19, 2009. One week before the final hearing, the Department filed the motion in limine that is discussed in the Preliminary Statement of this Recommended Order. The motion was granted to the extent that it sought to preclude Sheehey from introducing evidence that supported enforcement of the Settlement Agreement since the 2008 Application, which, while bearing similarity to the 2004 Application, is nonetheless an independent application that should be approved or denied on its own merits without regard to the 2004 Application, the Proposed Original Permit, the Settlement Agreement or the Final Original Permit. The case proceeded to hearing on the remaining issues raised by the Petition: 1) whether Sheehey has standing to contest approval of the 2008 Application; 2) whether Chbat gave the notice required by Section 373.413, Florida Statutes, and 3) whether Chbat's application meets the criteria in statutes and rules for issuance of the Amended Permit. Standing The findings of fact relevant to Mr. Sheehey's standing are found in paragraph 9, above. Notice Notice of the 2008 Application was published in The Defuniak Springs Herald-Breeze, a newspaper published in Defuniak Springs, Walton County, Florida. The notice was published on October 23, 2008. The evidence presented by Mr. Sheehey concerning lack of legal notice consisted of testimony by Mr. Sheehey at hearing in response to questions from his counsel. See Tr. Vol. III at 134. The testimony does not establish that Mr. Sheehey was a person who had filed a written request for notification of any pending application affecting his particular area. The testimony of Mr. Sheehey, moreover, establishes that he was given oral notice of the application by Mr. O'Donnell within four days of its filing. WRP Permitting Criteria To obtain a WRP, an applicant must satisfy the criteria in Florida Administrative Code Chapter 62-312 and Section 373.414, Florida Statutes. These criteria govern a range of topics including water quality. Water Quality15/ Florida Administrative Code Rule 62-312.080 provides that no permit shall be issued unless the Department has been supplied with reasonable assurances that the proposed work will not violate water quality standards. Water that enters the pond spends some amount of time in the pond (residence time) before flowing out. During residence time, solids drop out of the water so that the quality of the stormwater that flows out of the pond is reasonably expected to be better than the quality of the stormwater runoff when it entered the pond. Vegetation surrounding the pond, furthermore, enhances the quality of the water in the pond, whether the water’s source is runoff or rain falling directly into the pond. The water that flows out of the pond north of Alden Lane is “existing discharge.” Tr. Vol. I at 65. It generally made its way to the Bay prior to the Swale. Some of it makes its way to the Bay via the Swale now; some of it outside the Swale as overflow. The culvert extension will convey that discharge to the Bay if the extension is installed. The quality of the water is not significantly less when it discharges to the Bay via the Swale or otherwise from the Chbat property than when it would enter the culvert extension should it be installed. It is true that the Swale would have provided filtration and additional treatment to the discharge from the Eastern Pond Culvert as does the Chbat property in general. But that does not mean that the quality of the culvert’s discharge is a concern. The Swale may have been an option preferable to the extension of the culvert as far as water quality goes but all parties agree that the Swale has failed as a conveyance (albeit Mr. Sheehey maintains that the Swale would work with proper maintenance.) That there is a discharge method that improves the quality of the discharge, such as a swale, does not mean that the discharge to the Bay via the culvert extension is of insufficient quality. None of the parties tested the quality of the discharge from the Eastern Pond Culvert. The Department, nonetheless, offered evidence with regard to its quality. The Department concluded that the quality of the pond and its discharge were not of concern. Had the pond been contaminated to an extent that would have given rise to concerns, moreover, the Swale or the culvert extension as a means of conveying the discharge to the Bay would not have made a “discernible difference.” Tr. Vol. II at 80. The Department provided evidence of assumptions made with regard to the quality of the water that led the Department to conclude that testing of the discharge was unnecessary. Mr. O’Donnell, the Department’s expert in the application of state rules and statutes in wetland resource permitting, detailed the assumptions at hearing: My assumption was that that pond was dug some time in the past as a way to provide fill for roads. That it was never any part of . . . [a] stormwater treatment system. And that it conveyed upstream water through the pond and then on down into Choctawhatchee Bay. It was strictly a [borrow pit and a conveyance pond.] It was never permitted as a treatment system in any way that I was aware of in my diligence [in determining whether the extension should be permitted.] Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the record at the behest of Mr. Chbat, the burden shifted to Mr. Sheehey to prove that the applicant had not provided reasonable assurance of water quality. Mr. Sheehey did not offer evidence of any testing of the discharge. Nor did he offer testimony that rebutted Mr. O’Donnell’s opinion. In fact, the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported Mr. O'Donnell's opinion with regard to water quality. See Tr. Vol. III at 112. In sum, the Department made assumptions that are found to be reasonable based on Mr. O’Donnell’s expertise and experience. Those assumptions were not shown to be unreasonable by Mr. Sheehey. The Department’s conclusions about water quality flow directly from Mr. O’Donnell’s reasonable assumptions. Reasonable assurances have been provided that the project will not violate water quality standards. Public Interest Test Choctawhatchee Bay is not designated as an “outstanding Florida water.” The test that Mr. Chbat must meet therefore is whether the activity proposed by the permit application is “not contrary to the public interest.” § 373.414, Fla. Stat. In making that determination, the Department is directed by the statute to consider and balance seven criteria. See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at issue once water quality is determined to be of no concern. Two of the three, “[w]hether the activity will be of a temporary or permanent nature,” Section 373.414(1)(a)5., Florida Statutes, and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity,” Section 373.414(1)(a)7., Florida Statutes, do not require in-depth consideration. With regard to the nature of the project time-wise, the evidence establishes that the culvert extension is intended to be permanent. With regard to current condition, the area affected by the proposed activity is a residential lot, a substantial portion of which is under water following heavy rain. To facilitate the conveyance of stormwater, the lot is served by the Swale. The Swale is not functioning optimally because of lack of maintenance and because of the Ridge. With regard to relative value from the standpoint of water quality, the function being performed by the lot and the Swale is little, at least as established by this record. While it is certainly true that the lot with or without the Swale will filtrate and otherwise treat stormwater runoff from the pond, the difference in the quality of the stormwater conveyed by the culvert extension from that which would enter the Bay without the extension is not significant. See the discussion above of Mr. O’Donnell’s accepted opinions. Of the seven statutory criteria to be weighed and balanced by the Department, the one that is central to this case is found in subparagraph 1., of subsection (1)(a): “[w]hether the [culvert extension] will adversely affect . . . the property of others.” The “property of others” in this case is the property of Mr. Sheehey. The Project’s Effect on the Property of Mr. Sheehey. For the reasons discussed in paragraphs 63-70, above, Mr. Chbat has failed to provide reasonable assurances that the project will not have a detrimental effect on the property of Mr. Sheehey. The extent of the detrimental effect to Mr. Sheehey's property is difficult to determine from this record but it is highly likely based on all the evidence of record that there will be a detrimental effect: additional flooding in heavy rain events.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection deny17/ the Amended Permit for the failure of Mr. Chbat to provide reasonable assurances that the project will not adversely affect Mr. Sheehey's property. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010.
Findings Of Fact The Petitioner, E. F. Guyton, has filed an application for a permit which would allow the dredging of a boat slip and construction of a sedimentation basin with boat storage, specifically requiring the excavation of a boat basin, access canal, and access channel on his property which is located on the west shore of Crescent Lake, in Putnam County, Florida. The permit application number is 54-6806. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has the responsibility of appraising those applications such as the one submitted by the Petitioner, E. F. Guyton, and making a decision to grant or deny that permit. The authority for such action on the part of the Respondent resides in Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code. This cause comes on for consideration based upon the Respondent's letter of intent to deny the application, as dated August 22, 1978, after which the Petitioner has filed its petition challenging that intent to deny and requesting that the permit be granted. The petition in behalf of the Petitioner was received by the office of the Respondent on September 8, 1978. It was subsequently assigned to the Division of Administrative Hearings for consideration and that Notice of Assignment was dated September 28, 1978. The proposal for permit calls for excavation of a boat basin 100 feet wide and 480 feet long, leading into an access canal 25 feet wide and 500 feet long. This excavation is in the vicinity of an existing intermittent natural stream. The proposal would call for the removal of approximately 21,000 cubic yards of silt and sand, landward of mean high water. The excavation would be accomplished by use of a dragline to a depth of -2.0 feet MSL. The basin and canal slopes would be 2:1 and stabilization of slopes would be assured by riprap and grassing. A concrete spillway would be constructed at the upper end of the basin to direct the stream flow into the basin. In addition, the proposal calls for the dredging of an access channel through the shallow littoral zone of Crescent Lake to the mouth of the proposed access canal. The dredging involved with the access channel would cause the removal of 400 cubic yards of sediment from an area 250 feet long and as wide as 30 feet. The proposed depth of the channel is 2.0 feet MSL and slide slopes would be 5:1. The spoil would be pumped to a dike holding area on adjacent uplands. The Respondent's Exhibit No. 1, which is the permit application, offers a sketch of the boat basin with secondary sedimentation feature and the attendant access canal and channel. The project lies between U.S. Highway 17 and Crescent Lake, Areas to the south and west of the site are pasture and bayhead wetlands and they serve as a watershed for the aforementioned intermittent stream. Other upland areas in the vicinity are dominated by fully-drained flat woods and well-drained sand hill and messic oak terrain. The project site waterward of the mean high water is part of a shallow littoral zone of the west shore of Cresent Lake. The intermittent stream receives the runoff from the pastureland and drainage from U.S. Highway 17. There is a pronounced change in elevation during the course of the intermittent stream. The submerged littoral zone of the lake, which includes the proposed site of the access canal, falls away at a gentle slope and includes a number of supporting hardwoods, predominantly bald cypress. The area also includes submerged emergent vegetation, which is found in the shallows offshore. These shallows are exposed to favorable sunlight from the point of view of the health of this vegetation. The vegetation includes an emergent bed of oft stem bulrush (Sicrpus validus) which is in line with the proposed channel. Within the photic zone there is submerged tape grass (Valisneria americana) and naiad (Najas sp.). On the shore of Crescent Lake at the project site is found a hardwood swamp in its natural form, together with a creekbed which divides into numerous channels fanning out in the direction of the lake itself. This area of the creekbed contains bald cypress (Taxodium distichum), red maple (Acer rubrum), swamp ash (Fraxinus panciflora), black willow (Salix nigra), black gum (Nyssa biflra), water hickory (Carya aquatica), and wax myrtle (Myrica cerifera). The herbs and ferns in this area include penny wort (Hydrocotyl umbellata), arrow- arum (Peltandra virginica), leather fern (Acrostichum danaeifolium), and royal fern (Osmunda regalis). The sediments found in the creek area are sandy to silty sand. In the area where the boat basin/sedimentation facility would be located, the present intermittent stream is much more confined than in the area of the creekbed. Only in times of heavy rainfall does the water come outside the banks of the intermittent stream and inundate the surrounding territory. This portion of the stream is densely vegetated by a mixture of hydrophytes, facultative hydrophytes, an optimally situated upland species. These include sweet bay (Magnolia virginiana), black gum (Nyssa biflora), and red maple (Acer rubrum). Additionally, there are slash pine (Pinus elliotii), long leaf pine (Pinus palustris), dahoon (Ilex cassine), wax myrtle (Myrica cerifera), water oak (Quercus nigra), wild azalea (Ericaceae), and saw palmetto (Serenoa repens). The sedminets in this area range from very sandy in the slightly higher elevations adjacent to the stream bed to a heavy peat which is found predominantly in the bay tree locations. The uplands in the agricultural area are dominated by water oak, slash pine, long leaf pine, live oak and saw palmetto. A more graphic depiction of the project site and in particular as it relates to the intermittent stream, shore line upland agricultural area, and U.S. Highway 17 may be found in the Petitioner's Exhibits 1 and 2 and the Respondent's Exhibits 2 through 15, which are photographs of the project site. There are numerous varieties of fish in the area of Crescent Lake through which the access channel would be routed. These include: Seminole killifish (Fundulus seminolis), naked goby (Gobiosoma bosci), black bullhead (Ictalurus melas), brook silversides (Labidesthes sicculus), sunfish (Lepomis sp.), large-mouth bass (Micropterus salmoides) and Atlantic needlefish (Strongylura marina) . In addition, there are 35 species of invertebrates which were collected in the studies made by employees of the Respondent in their assessment of this permit application. The names of those invertebrates may be found in the Respondent's Exhibit No. 19 which was admitted into evidence in the course of the hearing. The vegetation and shallow water with a sandy bottom, together with the numbers and species of macro invertebrates, small fishes and immature game fishes point to the fact that this part of the lake serves as a valuable site for the propagation of fish, otherwise referred to as a spawning ground. The water quality in Crescent Lake at the site of the project is good, from the standpoint of gross observations. However, there have been some indications of eutrophication in Cresent Lake. A more complete understanding of the water quality may be gained from an examination of the Respondent's Exhibits 21 through 41 admitted into evidence. These exhibits are constituted of certain water quality reports rendered after extensive testing in Crescent Lake. The rainfall in the area exceeds 54 inches a year, with 50 percent of that rainfall being recorded in the wettest quarter, in which over 7 inches a month would fall. July has recorded 15 inches as a mean measurement over the last 80 years, with the month of May showing less than 2 inches, the month of September showing less than 2 inches and the month of October less than 1 inch. In considering the proposed project, a beginning point would be an examination of the ability of the primary filtration pond and secondary filtration function found in the boat basin, to adequately disperse the pollutants which will come into the system from the agricultural area and U.S. Highway 17. That treatment system is inadequate. The inadequacy exists because in periods of low rainfall the pollutants will settle to the bottom of the siltation system and will not be dispersed evenly. This cycle of low rainfall when followed by heavy rainfall, such as occurs in July, will cause the pollutants to be rapidly discharged from the system into the basin of the lake, either in a dissolved form or a free form, causing an unreasonable dilatorious effect to water quality and creating possible turbidity. The confined nature of the proposed channel which empties into the lake will promote scouring because the water is coming out in a more confined area than the natural access allows at present. In addition, the flow velocity in the secondary siltation system is not strong enough to flush out the pollutants in an efficient manner. Finally, channelization promoted by the system would remove a certain percentage of the biological treatment that occurs in the natural intermittent stream, thereby introducing a greater quantity of pollutants into the lake and reducing oxidation that this biological treatment and natural course of the intermittent stream bed now provides. The project, as contemplated, is very similar in its nature to the canal system in Dunns Creek, a body of water adjacent to Crescent Lake. A study conducted on that canal system revealed a very poor quality of dissolved oxygen, which falls below the water quality standards for Class III waters. (A copy of this report may be found as Respondent's Exhibit No. 20 admitted into evidence.) These are the same standards that would apply to Crescent Lake. In addition, there is a lack of flushing and the development of aquatic weeds deterimental to the fish and invertebrates located in the area of the Dunns Creek canals. Therefore, a similar problem could be expected in the project now under consideration. If the project were completed, the excavation of the material would cause disruption of the sediment and water quality degradation if precipitation occurred during the excavation. Efforts at turbidity control would not protect against a heavy rain and the maturely vegetated stream bed and productive littoral vegetation and substrates would be lost. The long term effects of the project would cause degradation of the water quality and a loss of fish and wildlife resources in the impact area. The filtrative assimilative capacity provided by the algae, shrubs, trees and associated substrates involved in the process of absorption and in aerobic bacterial metabolism, would be eliminated by the project and replaced by an intermittently flushed, highly nutrified shallow water lagoon and canal. Pollutants associated with boat operations would further compound the water quality problems and perpetual sediment disruption would occur because of a natural result of shallow water maintenance and use of the system. Siltation and periodic discharge of degraded basin water into the littoral zone of the lake would adversely effect the productive potential and the habitat potential offered by this area in its present form. Based upon a full assessment of the project, it is established that there would be increased and harmful erosion, shoaling of the channel and the creation of stagnant areas of water. It would also cause an interference with the conservation of fish, marine and wildlife to an extent that is contrary to the public interest. It would promote the destruction of natural marine habitats, grass flats suitable as nurseries or feeding grounds for marine life and established marine soils suitable for producing plant growth of a type useful as a nursery or feeding ground for marine life or natural shoreline processes to an extent contrary to the public interests. These failings are in direct contravention of Chapter 253, Florida Statutes. The project would be contrary to State Water Quality Standards, as developed pursuant to authority of Chapter 403, Florida Statutes. Thus, the Petitioner has failed to give reasonable assurances that the immediate and long term impacts of the project would not result in a violation of the State Water Quality Standards, as required by Rule 17-4.28(3), Florida Administrative Code.
Findings Of Fact On July 16, 1985, the Respondent MHI filed an application for a dredge and fill permit with the Respondent, Department of Environmental Regulation (DER). That original application was modified on October 9, 1985. The dredge and fill project as now proposed, would be constructed within the newly developing "Ashebourne" subdivision located in Clay County, Florida. The Respondent, MHI, is the developer of that subdivision. The property owner adjacent to the proposed dredge and fill activity is the R. L. Johnson Construction Company. R. L. Johnson Construction Company does not object to the issuance of the dredge and fill permit and has affirmatively consented to it. It is not a party to these proceedings. The project as now proposed and described in the amended application envisions the placement of a ductile iron sewer main or collection system pipe within waters of the State of Florida, specifically, beneath the creek bed of Indigo Branch Creek, which is a tributary to Doctors Lake in Clay County, Florida. The sewer main involved will be placed three feet beneath the bottom grade of the Indigo Branch Creek creek bed. The proposed project also involves the placement of approximately 270 cubic yards of fill soil onto residential Lots 17 and 18 within the Ashebourne subdivision. That fill would be placed within a forested wetland which is within the limits of the DER's jurisdiction. Additionally, the project involves the construction of a storm water outfall pipe concrete endwall. That endwall, however, is not truly in dispute in this case by the Petitioners and indeed, is located landward of the DER's jurisdiction in any event. The Applicant proposed grading the 270 cubic yards of fill to be placed on Lots 17 and 18 to a "four-to-one" slope and sodding that fill so as to prevent erosion of the fill dirt into the surrounding wetlands. No historical or archaeological sites have been identified in the area of the placement of the fill dirt, nor in the area of the proposed excavation and placement of the pipe beneath Indigo Branch Creek. The proposed sewer main will be made of ductile iron which will last for many years, and will contain no positive pressure head in relation to the pressure of the waters of Indigo Branch Creek lying immediately above it. Thus, any leak occurring in that sewer main will result in ground or surface water entering the main, as opposed to wastewater from within the main leaking out into surface or groundwaters of the State. In initiating this project and prosecuting the application, MHI retained the services of England, Thims & Miller, Inc., a consulting engineering firm who performed the site planning and civil engineering work for the proposed project. Mr. Miller, of that firm, was qualified and accepted as an expert in the design of wastewater collection systems and surface water hydrology. He established that the flow of the Indigo Branch Creek will not be impeded by the construction of the subaqueous sewer main crossing beneath the creek due to the temporary nature of the construction and the use of various mitigation techniques which are designed to enable the flow of the creek to continue unimpeded during the construction. Erosion of the Indigo Branch Creek channel will not likely occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of change to the existing stream flow, as well as the planned compacting and sodding of the earthen berm adjacent to the Indigo Branch Creek following placement of the pipe beneath the creek and through the berm. Additionally, the height of the berm will be increased by the Respondent/Applicant as part of its proposed construction. In view of the planned compacting and sodding of the earthen berm adjacent to the creek, there has been shown to be no reasonable likelihood of erosion of the earthen berm into waters of the State. Parenthetically it should be noted that the earthen berm itself is upland and without the jurisdiction of the DER. Assuming arguendo, however, that the Petitioners' primary concern involving the berm's erosion into the creek or the recreational stormwater pond on its opposite side, as a source of pollution, is jurisdictionally valid, the stabilization of the berm attendant to the proposed project will alleviate any siltation and erosion which might result to the Class III waters involved. Mr. Jeremy Tyler is a dredge and fill supervisor for the DER. He and an employee under his supervision made several visits to the project site in order to prepare the biological and water quality assessment for the Department, and to assist in the formulation of a recommendation to the District Manager of the Department regarding this permit application. It was thus established that Indigo Branch Creek and Doctors Lake, to which it is a tributary, are Class III waters of the State, as is the recreation and stormwater pond upon which some of the Petitioners reside, which has an outlet to Doctors Lake. The Indigo Branch Creek lies between the Ashebourne Subdivision and the Pecan Cove Subdivision which is located north and east of it. The creek is channelized and the vegetation adjacent to it has been altered in the past. The native vegetation has previously been removed from the side of the creek where lies the Pecan Cove Subdivision. On the Ashebourne Subdivision side of the creek there is a linear strip of jurisdictional vegetation running the length of the creek. The Creek and Doctors Lake, as waters of the State, extend landward of the mean high water line into an area dominated by red maple, ironwood, water oak and sweet gum. There will be a cleared area of approximately 20 feet in width where the pipe crossing of Indigo Creek would be made. There will be some clearing of vegetation on Lots 17 and 18 where the fill is to be placed. Prior to the hearing, MHI agreed to mitigate the loss in wetland vegetation by modifying the originally applied-for amount of fill to be placed on those two lots, and by agreeing to allow the area of the creek crossing to re-vegetate with native vegetation in an undisturbed fashion. Mr. Tyler, who was accepted as an expert witness in the area of evaluation of water quality impacts of dredge and fill activities, established that water quality standards for Class III waters of the State embodied in Rule 17-3, Florida Administrative Code, as it relates-to Indigo Branch Creek and Doctors Lake would not be violated by the proposed dredge and fill activity involved in placing the pipe beneath the creek. In this connection, the Applicant has agreed to condition the permit upon the use of various safeguards against siltation and turbidity, such as turbidity curtains and screens during the construction process and until the restabilization of the upland around the project site has occurred through compaction and sodding. Because of this, any deleterious effects on water quality would involve turbidity and would be transitory in nature because of the turbidity safeguards that will be installed, and because of the stabilization of the banks and berm surrounding the area of the creek where the dredge and fill activity will occur. With regard to the filled area mentioned above, deleterious effects on the wetlands involved will be minimized by the grading of the fill to a 4:1 slope and the sodding of it to prevent erosion and siltation in the waters of the State involved in those wetlands. The concrete endwall installation involved as the third element of the dredge and fill activity proposed will serve to prevent erosion and resultant turbidity entering Doctors Lake by retaining the soil on each side and above the storm drainage outfall pipe. Thus the endwall will actually serve to prevent violations of water quality standards, even assuming arguendo that the installation of that concrete endwall on the outfall pipe is within the landward extent of the state waters involved with Doctors Lake, and within DER's jurisdiction, which was not proven. Mr. Tyler established that the public's health, safety and welfare and property of others will not be adversely affected by the dredge and fill activities proposed because of their temporary nature and effect, and their location downstream on the Creek in relation to the residential lots which abut the creek, and for the further reason that the only adjacent property owner, R. L. Johnston Construction Company, consented to the placement of the wastewater collection system and pipe on or beneath its property. The proposed dredge and fill activities will not adversely affect navigation and the flow of water or cause harmful erosion. Navigation will clearly not be impacted since the proposed pipe crossing will be three feet below the grade elevation of the bottom of the Creek. The flow of the Creek will not be impeded by the construction of the pipe crossing due to the temporary nature of the construction activity and the use of mitigation techniques (diversion of the creek flow) to enable the flow to continue around the project site during construction. Erosion of the creek channel is not expected to occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of permanent change to the existing stream flow. Likewise, the compacting and sodding of the earthen berm adjacent to the creek following placement of the pipe beneath it, together with the proposed increase in the height of the berm will further serve to prevent erosion of the berm and the siltation effects that might have on the creek's channel. The proposed dredge and fill activities were shown not to adversely affect conservation of fish and wildlife or their habitat, nor will fishing or recreational values or marine productivity be adversely affected. Given the mitigation techniques to be used to minimize turbidity, any adverse impacts associated with the dredge and fill activities will be of a temporary, transitory nature and will not pose any significant deleterious effect to waters of the State. Likewise, the proposed dredge and fill activities will only minimally affect the current condition and relative value of functions being performed by the jurisdictional waters and wetlands of Indigo Branch Creek, Doctors Lake and the pond. In short, it has not been established that the transitory, temporary impacts of the proposed dredge and fill activities will be of a type or magnitude so as to be contrary to the public interest. No causal relationship has been established between the proposed dredge and fill activity involved in placing the pipe beneath the creek and the feared erosion of the earthen berm located adjacent to waters of the State. In that connection, the Respondents stipulated to the Petitioners' standing on the limited issue of erosion of the berm into the pond.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered granting the subject dredge and fill permit upon the above-referenced conditions, and that the petition filed herein be dismissed. DONE and ENTERED this 18th day of April, 1986, in Tallahassee, Florida. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. COPIES FURNISHED: Charlotte M. Keppeler 3563 Sheldon Road Orange Park, FL 32073 Douglas M. Wyckoff, Esq. Deborah Getzoff, Esq. Office of General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Lawrence E. Bradley 3563 Sheldon Road Orange Park, FL 32073 Phillip Helseth, Jr. 3569 Sheldon Road Orange Park, FL 32073 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Jeffrey E. Miller 3558 Lawrence Road Orange Park, FL 32073e Philip S. Parsons Post Office Box 391 Tallahassee, FL 32302 Gerard M. Pellegrini 3542 Sheldon Road Orange Park, FL 32073 E. Owen McCuller, Jr., Esq. ROGERS, TOWERS, BAILEY, JONES and GAY 1300 Gulf Life Drive, Ste. 800 Jacksonville, FL 32207 APPENDIX Petitioners' Proposed Findings of Fact and Conclusions of Law: Paragraph 1 is rejected as constituting recitation of testimony, evidence and argument. Paragraph 2 is rejected as constituting recitation of testimony and evidence and argument concerning the weight and credibility to be ascribed thereto. Respondent Montgomery Homes, Inc.'s Proposed Findings of Fact: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Respondent Department of Environmental Regulation's Proposed Findings of Fact: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 7 is accepted. Paragraph 8 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 9 is accepted. Paragraph 10 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 11 is accepted. Paragraph 12 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 13 is accepted.
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
