Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. C. Prevatt is the owner and operator of the Riverview Speed Wash, Inc., a coin operated laundry which has been in existence for over ten years. The facility has twelve top load washers, four double load washers, one triple load washer and seven gas dryers. It is open from 7:00 a.m. to 9:00 p.m., seven days a week. The facility is located in a shopping center in space which petitioner rents on a month-by-month basis. The facility utilizes a 0.0075 mgd waste treatment plant with effluent disposal to a county-owned drainage ditch which is connected and discharges to the Alafia River approximately 0.6 miles south of the facility. On or about May 29, 1981, petitioner submitted an application for a temporary operation permit for his Riverview laundry facility. Temporary operation permits are issued by the DER when a facility is not currently meeting State water quality standards and the applicant needs or desires a period of time to bring the facility up to the applicable standards. Here, the petitioner stated on his application that no upgrade of the waste treatment facility was planned. The application further stated that the facility would be connected to an area wide regional waste treatment system when that system became available. After numerous requests for further information from the applicant and various inspections of the facility, the DER issued its notice of intent to deny petitioner's application for a temporary operation permit. Reasons for the intended denial included failure to provide requested background water quality information, failure to provide a proposed water quality standards compliance schedule, failure to provide reasonable assurance that a municipal sewer would be available as an alternative means of disposal and improper and deficient operation and maintenance of the facility. Numerous inspections of the petitioner's facility by personnel from the DER and the Hillsborough County Environmental Protection Commission revealed that the facility was not functional in terms of operating correctly and that the design of the plant was inadequate to meet State water quality standards. Specifically, these inspections revealed that the chlorination equipment was not operational, that the trickling filter was not operational, that the removal rates for BOD and suspended solids were consistently and significantly less than the State standard of 90 percent, that the discharge and effluent were of a milky color and would not meet the State standards for turbidity and color, that the water quality of the drainage ditch was extremely low and that the water quality results were actually worse after going through the existing system. It was determined that the discharge was degrading the quality of the receiving waters and that, even if the petitioner's operational and maintenance problems were solved, the design of the facility is not adequate to assure future compliance with State standards. Petitioner admits that his facility does not currently meet State water quality standards. In mitigation, it is contended that many other laundries in the area also do not meet State standards, that it is not economically feasible to redesign the facility to attain compliance, that he has no land available upon which to discharge effluent and that he would be willing to install a sand filter and did have the permission of the manager (not the owner) of the property to discharge effluent into the parking lot drain ponds. No written evidence of this agreement was adduced and there was no demonstration that such runoff ponds would be able to hold and/or treat effluent from the petitioner's facility. There was also no evidence offered to demonstrate that a municipal or regional sewer system would be available in the near future to serve the laundry facility.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for a temporary operation permit for Riverview Speed Wash, Inc. be DENIED. Respectfully submitted and entered this 7th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of September, 1982. COPIES FURNISHED: L. C. Prevatt Post Office Box 998 Gibsonton, Florida 33534 William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Champagne Estates (petitioner or applicant), is a limited partnership that owns a tract of land identified as Lots 1-5, Block 88, PGI Section 9A in Punta Gorda, Florida. The property fronts on the south side of the Peace River, a Class III water body which lies within the boundaries of the Charlotte Harbor Aquatic Preserve, a water body designated as an Outstanding Florida Water (OFW). Petitioner is in the process of constructing a thirty unit, two phase luxury condominium project on its property. As an added amenity for the unit owners, petitioner proposes to construct a multi-slip dock in a tear shaped basin that juts slightly inward from the Peace River. It is applicant's proposal to build a dock that has created this controversy. By application dated April 4, 1989, petitioner sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER). If approved, the permit would authorize the construction of the dock. The application was received by DER's Fort Myers district office on April 14, 1989, and was given a staff review for sufficiency. After additional information was requested by DER and filed by the applicant, an on-site inspection was conducted by DER personnel on June 2, 1990. An inspection report was thereafter prepared on July 14, 1990, and was used in the formulation of the agency's preliminary decision. That decision, which was styled as a notice of permit denial, was issued on July 25, 1989, and cited several grounds for DER's preliminary action. They included (a) a fear that degradation of waters would occur, (b) applicant's alleged failure to show that the project was not contrary to the public interest in six respects, and (c) a concern that the project and its cumulative impacts would be contrary to the public interest. The agency's notice of permit denial prompted the applicant to initiate this proceeding. The application and project area Applicant initially sought authorization to build a two hundred sixty- three foot dock with six finger piers, a terminal platform and thirteen boat slips. The agency's intent to deny permit was based on that proposal. After the proposed agency action was issued, petitioner modified its application to downsize the dock to one hundred feet with only four finger piers and eight mooring slips. The structure will have a "T" configuration. Under the modified proposal, the finger piers will have a length of twenty feet while the mooring slips are twelve feet wide. Applicant advises that the boats which will use the facility will average between twenty and twenty-six feet in length with drafts of two to three feet. This size and draft is comparable to commercial fishing boats which now frequent the deep water basin to catch mullet. If the application is approved, applicant proposes to place rock riprap at the toe of the existing vertical concrete seawall and to plant red mangroves in the intertidal areas. It also proposes to prohibit "live aboards", fueling and maintenance at the facility. Despite the above modifications and restrictions, DER advised petitioner on October 5, 1989, that the application was still unacceptable for the same reasons as originally given. The parties have agreed that the modified application is the subject of this proceeding. The basin in which the construction will occur was excavated in the 1960's. A thirteen foot deep east-west channel runs parallel to the shore several hundred feet from the shoreline. There are existing seawalls on both the southern and western shorelines of the project area which form an "L" at the intersection. The basin is tear shaped with a width of approximately one hundred feet and commences some one hundred feet waterward of the shoreline. The "T" finger pier structures will be at the southerly edge of the existing basin thereby giving vessels access to the east-west channel. During low tide the bottom of the water body is exposed for more than one hundred feet seaward of petitioner's property. Thus, most, if not all, of the dock will be over exposed areas during low tide, and even during high tide the water in the surrounding basin area will be no more than a few feet deep. The proposed project has existing condominiums on both sides. Virtually all of the remaining lots on either side of the project stretching a mile or so in both directions are developed with single or multifamily units. If approved, petitioner's dock would be the only such dock in the immediate area on the south side of the river. Water quality concerns An applicant for a dredge and fill permit is obliged to provide "reasonable assurance" that water quality standards will not be violated. Since the proposed project is within the boundaries of the Charlotte Harbor Aquatic Preserve, which is designated as an OFW, special water quality considerations come into play. More specifically, the project must maintain the ambient water quality standards of the OFW. This means that a permit cannot be issued for a project that will lower the ambient water quality, that is, the water quality existing one year prior to the date the body was designated an OFW, or the water quality existing one year prior to the project, whichever is better. One way in which ambient water quality can be degraded is by the resuspension of bottom solids caused by the churning of boat propellers. The likelihood of this condition occurring is made greater when insufficient water depths exist in combination with the existence of mucky, silty bottoms. The bottoms surrounding the proposed docking structure are nonvegetative and vary from hard sand in the shallow areas to a mucky silt layer in the deeper sections of the area. The accumulated sediment in the deeper section of the basin is on the order of twenty-four inches. While the hard sand bottom will readily settle out, the mucky bottom sediments will likely be churned by the boat activity in the absence of sufficient water depths. There is conflicting evidence regarding the depths of the water in the area of the basin where the proposed dock will be constructed. In support of its application, petitioner provided a chart indicating the topography of the sea bottoms at the proposed dock site. However, the geographic survey chart does not establish that sufficient water depth exists for the proposed dock. Rather, the more credible evidence establishes that the bottoms of the basin where the proposed dock will be built are often exposed and during low tides the sea bottoms are exposed up to approximately one hundred to one hundred fifty feet seaward of the seawall. Moreover, in the winter months, the westerly winds push the water out of the basin and cause the exposure of sea bottoms up to two hundred feet seaward of the seawall. When these shallow depths are coupled with the soupy texture of the bottom sediment, it is found that resuspension of the bottom sediment will occur as a result of boat activity at the proposed docking site. To the extent turbidity is now present in the basin due to the activities of the commercial fishermen, these turbidity levels will be exacerbated. If, as applicant suggests, the proposed facility will eliminate the commercial mullet fishing activities within the basin, there is no reasonable assurance that the new levels of turbidity will not exceed those now present. Therefore, it is found that applicant has not given reasonable assurance that the water quality standards will not be degraded. The agency's next concern involves its so-called "free-from" standard, which literally means that assurance must be given by the applicant that a water body will be "free from" various types of man-induced components (e. g., debris, oil, and scum) that float in such amounts as to form a nuisance. Thus, applicant was required to give reasonable assurance that the project would not cause an accumulation of debris and other items on the surface of the water in such amounts as to constitute a nuisance. The project site is "L" shaped, the "L" caused by the intersection of two seawalls on its western side. During the inspections of the project site by DER personnel, an accumulation of debris (grass clippings, styrofoam cups, coconuts, etc.) was observed in the corner of the "L". Indeed, applicant concedes that "some such debris is regularly present in the vicinity of the proposed docking structure" but contends that the docking facility will not cause significant additional floatsom or scum. However, it is found that due to the shape of the basin and its lack of sufficient water depth, the project will exacerbate the accumulation of debris so as to cause a nuisance. Finally, because of the shallow water in the basin, there exists the likelihood that dissolved oil or visible oil will form in the waters and affect its taste or give rise to an odor or otherwise affect the beneficial use of the waters. D. Public Interest Considerations In order for a permit to issue, and because the project is in an OFW, the applicant is obliged to show that the project "will be clearly in the public interest." The public interest test involves a consideration of seven statutory criteria. In this case, DER contends that six of the seven criteria enumerated in the law (s. 403.918(2)(a)1.-5. and 7., F.S.) have not been satisfied. The first criterion requires an inquiry as to whether the project will adversely affect the public health, safety, or welfare of the property of others. In this regard, it is noted that the proposed activity will take place in an OFW, a pristine water body. According to the agency, the maintenance of that water body "is in the welfare of all the citizens of the State of Florida, not just the residents of Champagne Estates or the adjacent condominium owners." Because the operation of boats will cause a degradation of the waters in the basin area, this will have an adverse effect on the public welfare. While applicant proposes to offer mitigation in the form of riprap and new mangroves, the success rates for mitigation proposals such as this are less than fifty per cent and do not offer sufficient assurance to counter the adverse effect on the public welfare. The second criterion concerns whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Uncontradicted testimony established that stingray, bait fish, sheepshead, minnows, brown pelican, osprey, bottlenosed dolphin, and loggerhead turtles habitat the project area. In addition, the proposed dock has been designated as a critical habitat for the manatee. Due to the resuspension of bottom solids caused by boat traffic in the shallow waters, the wildlife and fish in the area of the proposed dock will be adversely impacted. This is because elevated levels of turbidity are detrimental to aquatic species that breath water, especially for those that filter feed and pass the fluid through their bodies. The next relevant criterion is whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (i. e., cause an area to shallow in). As to this criterion, applicant's uncontradicted evidence that the project will not affect navigation, the flow of water, or cause harmful erosion or shoaling is accepted, and it is found that this criterion has been satisfied. The fourth criterion in issue is whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. While the fishing or recreational values should not be adversely affected, the turbidity caused by the boats propellors will impact the marine productivity in an adverse manner. Therefore, this criterion has not been met. The next criterion concerns whether the project will be of a temporary or permanent nature. The evidence shows that the project will be of a permanent nature, that is, once constructed, the applicant does not plan on tearing down the structure. However, neither party offered evidence as to how this consideration comes into play in the context of the public interest test, and it is accordingly found that applicant has not satisfied this requirement. The last disputed criterion concerns the current condition and relative value of functions being performed by areas affected by the proposed activity. By virtue of the increased turbidity levels, it is found that the relative value and use of the area will be degraded. E. Cumulative Impacts In its proposed agency action, the agency contended that "the project and its cumulative impacts . . . also fail to be clearly in the public interest." This objection is grounded on the statutory requirement that the agency consider the "other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations." (s. 403.419(3), F.S.) According to an agency witness, applicant's project, if approved, would be the only docking facility on the south shoreline of the Peace River for some distance in either direction. Although DER does not have any pending applications for docks, and knows of none that will be filed, it "felt" there was a potential cumulative impact in that other condominium projects in the area would seek a docking permit once it became known that applicant had constructed such a facility. However, this "feeling" is insufficient to establish a finding that there is a potential adverse cumulative impact related to the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Champagne Estates for a dredge and fill permit be DENIED. DONE and ENTERED this 9th day of October, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner: 1-3. Partially adopted in finding of fact 1. 4-8. Partially adopted in finding of fact 3. 9-10. Partially adopted in finding of fact 4. 11. Partially adopted in finding of fact 8. 12-13. Partially adopted in finding of fact 4. 14. Partially adopted in finding of fact 7. 15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 3. 17. Partially adopted in finding of fact 7. 18-19. Partially adopted in finding of fact 8. Rejected as being contrary to the evidence. Partially adopted in finding of fact 20. Rejected as being unnecessary. 23-24. Partially adopted in finding of fact 15. Rejected as being contrary to the evidence. Partially adopted in finding of fact 13. Respondent: Partially adopted in finding of fact l. Partially adopted in finding of fact 2. 3-5. Partially adopted in finding of fact 3. 6-8. Partially adopted in finding of fact 2. 9-14. Partially adopted in finding of fact 3. 15-41. Partially adopted in findings of fact 6-11. 42-53. Partially adopted in findings of fact 12-18. 54-56. Partially adopted in findings of fact 19-20. 57-62. Partially adopted in finding of fact 13. 63-64. Rejected as being unnecessary. Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, contrary to the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Michael P. Haymans, Esquire P. O. Box 2159 Punta Gorda, Florida 33949 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32399-2400
Findings Of Fact In 1984, the South Florida Water Management District (SFWMD) issued surface water management permit number 48-00201-5 for a 515 acre project, Isleworth Golf and Country Club, located in southwest Orange County. The permit was issued to the developer, Isleworth Partners. Sometime after the permit was issued and the system was constructed, nitrate concentrations were detected in holding ponds BE-15 and 16. District staff speculated that the shallow ground water table was contaminated with residual nitrogen left from nutrient applications to a citrus grove previously on the site. They were concerned that the high nitrate ground water was seeping into the storm water storage ponds and would eventually be discharged into adjoining Lake Bessie, thereby affecting the water quality of the lake. Lake Bessie, along with other lakes in the region, was also experiencing rising levels. On March 24, 1988, Isleworth Partners submitted to the SFWMD its application number 03248-G, to modify the existing surface water management permit, to help prevent the water quality problems from occurring in Lake Bessie, as described above, and to ameliorate and mitigate against increased lake levels in Lake Bessie. It was not intended to provide flood protection for Lake Bessie. The solution proposed in the modification request, as well as in water use permit applications processed at the same time, was to retain substantially more water in storage ponds BE-15 and 16, and to recycle some of the water from those ponds for use in irrigating the golf course. There were no objections to the water use modifications which were processed with the surface water management permit modification, and the water use modifications were approved by the SFWMD governing board in June 1988. As they affect ponds BE-15 and 16, the water use modifications include pumping the ponds down to a new control level of 97 feet NGVD and using that water to irrigate the golf course. This process has already been implemented with beneficial results: the nitrate concentrations in the ponds have been reduced. The surface water management modification which is the subject of the application at issue is to raise the weir structure from 101.6 to 103 feet NGVD in pond BE-15 to provide complete retention of a 10 year/24 hour storm event without discharge to Lake Bessie from the pond. The under drain system at Pond BE-15 will also be plugged to prevent the existing permitted bleed down of the pond waters into Lake Bessie. This structural modification involves simple construction work and can be completed in one or two days. Ponds BE-15 and 16 are currently connected by an equalizer pipe, and will remain so. Under the modifications the ponds will be maintained (control elevation) at 97 feet NGVD through the use of existing permitted pumps. The maximum elevation of the ponds will be raised from 101.6 feet to 103 feet NGVD by the alteration of the weir. This means the waters in the ponds would have to top 103 feet to overflow and discharge, by way of an existing pipe, to the swales along Lake Bessie and thence into the lake. A 10 year/24 hour storm event is the amount of rainfall that will statistically occur in a 24-hour period once every ten years, or ten times in a 100-year period. The amount of rainfall in a 10 year/24 hour storm event is roughly seven and a half inches. The modification proposed by Isleworth Partners is intended to retain the runoff from that storm. Currently, under the system as permitted, only the first inch of runoff must be retained. This is about 2.4 inches of rainfall or approximately a 3-year/1-hour storm event. Substantially more water will be retained in Ponds BE-15 and 16 under the proposed modification. The staff of SFWMD recommended that the application be granted, with twelve standard limiting conditions and eight special conditions, including the following: * * * The permittee shall be responsible for the correction of any water quality problems that result from the construction or operation of the surface water management system. The district reserves the right to require that water quality treatment methods be incorporated into the drainage system if such measures are shown to be necessary. * * * (Isleworth Exhibit #3, p. 6) John Robertson, Donald Greer and Robert Londeree reside on Lake Bessie. John Robertson and Donald Greer are members and officers of a nonprofit corporation, the Petitioner in this case, Friends of the Lakes, Inc. These residents are concerned that the level of Lake Bessie has risen in the last few years and that it is becoming polluted. Long standing docks which had been primarily dry are now frequently under water. The residents have observed milky or greenish yellow water discharging from pipes from the Isleworth development. These residents, who are not parties to the proceeding, concede that, if the modification works as intended, the system will be improved and the impact to Lake Bessie Will be lessened. Petitioner, Friends of the Lakes, Inc., questions the reliability of the pumping system to maintain the 97.0 foot control elevation. If the ponds are maintained at a control level of 97.0 feet, the 10 year/24 hour storm water will be retained. If, however, through a series of smaller events, the level is higher than 97.0 feet, less capacity will exist, and the water will discharge sooner to Lake Bessie. The current permitted pump operates at 375 gallons a minute. Depending on whether the pump is operated continuously or part-time, it would take from four to twenty days to pump down the pond from a maximum 103 feet to the 97 foot level. The District found the pumping system to be acceptable at Isleworth because the development has a full-time maintenance staff of 35 people, of whom three work on the pumping system. A maintenance supervisor checks the pumps daily, and the developer has an agreement with a pump company to replace the pump, if needed, within four to six hours. The system is considered reliable and the increased pond holding capacity will insure that more water will be retained than under the existing permitted system. Stephen Miller is the professional engineer whose firm prepared the application for modification and the original application for the surface water management permit. He is aware of some changes in the project as constructed which differ from his design for the original system. These changes relate specifically to grading on the golf course and not, as suggested by Petitioner, to the operation of ponds BE-15 and 16. Stephen Miller believes that the modifications will do exactly what they are proposed to do. The application for the modifications took into account the existing conditions which differ from the permitted construction plans. Ronald R. Potts testified for Petitioner as an expert in geology and surface and ground water hydrology. He agrees that the application for modification meets all requirements of the SFWMD with the exception of a single standard condition: * * * 3. The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition, the permittee shall obtain all necessary federal, state, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit (Isleworth Exhibit #3, P. 6.) The district staff report recommending approval for the modification request was sent to Orange County for its review and comment. Orange County made no objections. Within Orange County it is the engineering department which is responsible for the implementation and interpretation of the Orange County subdivision regulations as they apply to storm water management. The SFWMD does not attempt to enforce other agencies' requirements. The Orange County Engineer, George Cole, determined that neither section 10.1.2 nor section 10.4.4(D) of the Orange County Subdivision Regulations were applicable to the modification proposed by Isleworth. Section 10.1.2 requires that recharge to the Floridan Aquifer, where soils are compatible, shall be accomplished by providing for retention of the total run off generated by a 25 year frequency, 24 hour duration storm event from the developed site. Section 10.4.4(D) of the Orange County Subdivision Regulations requires that a pond design detain a 100 year storm event when discharge into a lake without a positive outfall is proposed. When the County first approved Isleworth's Planned Development, it set a specific requirement that the storm water management system retain the first inch of runoff and detain the difference between pre-development and post- development discharge for a 25 year/24 hour storm. "Retention" of storm water means that the water must be held on site and disposed of by some means other than discharge. "Detention" requires only that water be held back for a period of time before discharge. The Isleworth property is not located in a prime recharge area, as under its soils is a highly impermeable lens, commonly called "hardpan." Lake Bessie has a positive outfall, a pipe connecting Lake Bessie with nearby Lake Down. Although the pipe was plugged with debris for a period of years, it has been cleaned out and the potential exists for outfall from Lake Bessie in flood conditions. The County's 100 year/24 hour detention requirement would still allow the ponds to discharge more water to Lake Bessie than the proposed 10 year/24 hour retention design, and is, therefore, less restrictive. Lake Bessie presently is one of Florida's most pristine lakes with crystal clear water that is ideal for recreational purposes. The natural dynamic state of lakes is that over a period of time they evolve from oligotrophic, with clear water and a balanced system; to mesotrophic, with less water clarity, more nutrients, increased algae and less desirability for human use; to a eutrophic state, with even less clarity, choking vegetation, less fish and less pleasing appearance and utility. This occurs in a natural state as lakes fill in with decaying matter from the shore. Petitioner claims that discharge from Isleworth will hasten the death of the lake. Phillip Sacco testified for the Petitioner as an expert biologist and limnologist (one who studies fresh bodies of water). He performed a modeling analysis to determine the amount of phosphorus being discharged into Lake Bessie and he opined that the Isleworth development will cause Lake Bessie to change to a eutrophic state. A significant component of his analysis was his assumption that 920 acre-feet of water would be discharged into Lake Bessie as a result of the modification. (transcript pp. 557-558). The 920 acre feet is actually the total amount of water which enters Lake Bessie from the entire Lake Bessie basin, not just from the Isleworth property, and includes both surface water (2%) and ground water (98%). The analysis is discredited by the false assumption. Mr. Sacco also theorized that the interaction of nitrogen and phosphorus precipitated by the change in land use occasioned by the Isleworth development would produce deleterious effects on Lake Bessie's water quality: "Nitrogen is the dynamite; phosphorus is the fuse and the land use change of Isleworth is the match." The permit modification application at issue does not relate to a land use change. The change from orange groves to residential development occurred years ago and has already been permitted. In fact, the land change providing the ignition in Mr. Sacco's vivid metaphor is just as likely in the even earlier cultivation of the groves and use of nutrients in their production. The single result of the modification at issue will be less water being discharged into Lake Bessie than is currently permitted from the system, thus conserving the water quality present in the lake. The residents who testified are not parties to this proceeding. Although two of them established they are members and officers of Friends of the Lake, Inc., no evidence was produced regarding the corporation, its legal existence or purpose.
Recommendation Based on the above it is hereby RECOMMENDED: that a final order be issued granting the application for permit modification, and denying Isleworth Partners' request for costs and attorney's fees. DONE AND ENTERED this 17th of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX Case NO. 88-3056 The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS: 1-2. Adopted in part in paragraph 9. However, testimony on the dying trees was excluded as beyond the witnesses' expertise. 3-4. Adopted in part in paragraph 2, otherwise rejected as not based on competent evidenc. Adopted in paragraph 3. Adopted in part in paragraph 10, otherwise rejected as unsupported by the evidence. The pumps already exist and are permitted. Rejected as irrelevant Rejected as unnecessary Rejected as inconsistent with the evidence. Adopted in paragraph 12. Rejeceted as unsubstantiated by competent evidence; the proposed fact is also too vague and ambiguous to properly address. Rejected as unsupported by competent evidence. Rejected as irrelevant, unnecessary, or unsupported by competent evidence. 14-15. Rejected as unsupported by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence and irrelevant. Adopted in part in paragraph 16; the contribution by the development is rejected as unsupported by competent evidence. Rejected as unsupported by competent evidence. Addressed in paragraph 16. Rejected as contrary to the evidence. Rejected as irrelevant. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. 25-31. Rejected as irrelevant and unnecessary. Rejected as testimony summarized rather than findings of fact. Rejected as unecessary. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: ISLEWORTH PARTNERS Adopted in paragraph 1, except the finding regarding the existing system meeting district requirements is rejected as irrelevant. Adopted in substance in paragraphs 2 and 3. 3-4. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraph 7. Rejected as cumulative and unnecessary. Adopted in part in paragraph 9, otherwise rejected as unnecessary. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 12. Adopted in paragraph 13. Included in conclusion of law #6. Adopted in paragraph 13. 14-19. Adopted in substance in paragraphs 14 and 15. Rejected as unnecessary. Adopted in paragraph 16. 22-25. Adopted in part in paragraph 16, otherwise rejected as unnecessary. Adopted in part in paragraph 4, otherwise rejected as unnecessary. Rejected as unnecessary. 28-31. Adopted in part in paragraph 9, otherwise rejected as unnecessary. 32. Adopted in paragraph 18 and in conclusion of law #2. SOUTH FLORIDA WATER MANAGEMENT DISTRICT 1-2. Adopted in paragraph 3 and 4. Adopted in paragraph 5. Adopted in paragraph 7. 5-6. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 13. 9-10. Adopted in paragraph 14. Adopted in paragraph 16, otherwise rejected as cumulative or unnecessary. Adopted in part in paragraph 14. COPIES FURNISHED: J. Alan Cox, Esquire Bogin, Munns & Munns 105 West 5th Avenue Tallahassee, FL 32303 Chris H. Bentley, Esquire W. Douglas Beason, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301 William Doster, Esquire Lowndes, Drosdick, Doster, et al., PA P.0. Box 2809 Orlando, FL 32802 James K. Sturgis, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680
The Issue Whether Respondent, Planmac Company, Inc., is entitled to the modification of a previously permitted boat docking facility in a man-made basin on Lower Matecumbe Key, Monroe County, Florida.
Findings Of Fact On March 12, 1985, Planmac Company, Inc. (Planmac) filed a request with the Florida Department of Environmental Regulation (DER) for a dredge and fill permit to construct a boat docking facility consisting of 52 slips in a man-made basin, known as Captain's Cove, located on Lower Matecumbe Key, Monroe County, Florida. On October 3, 1985, DER filed a Notice of Intent to Issue the requested permit subject to certain specified conditions. A timely challenge to the permit was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was styled Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. As a result of the formal hearing in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, a Recommended Order was submitted to DER which made findings of fact, concluded that all permitting criteria had been met, and recommended that the application be granted subject to certain conditions. Thereafter, on June 3, 1986, DER issued a Final Order which ordered that the application for the permit be granted subject to the recommended conditions. No appeal was taken from the Final Order. On June 18, 1986, DER issued to Planmac Permit #441008425, which authorized Planmac, consistent with drawings and specifications attached to the Permit, to: Construct two (2) 5' x 248' docks, each with fourteen (14) 3' x 40' finger piers and twelve (12) associated mooring piles, providing a total of fifty-two (52) boat slips; and install approximately 590 linear feet of riprap revetment requiring the deposition of approximately 300 cubic yards of rock boulders landward and waterward of MHW, in a man-made basin (Class III Waters), an artificial, navigable waterbody contiguous to Florida Bay in Section 21, Township 64 South, Range 36 East, Monroe County. The following specific conditions were attached by DER to Permit #441008425: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equipment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. The Marathon Department of Environmental Regulation office shall be notified 48 hours prior to the commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers; these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vegetated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Marathon DER office shall meet to discuss acceptable locations for these markers. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria. 17.3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. After Permit #441008425 was issued to Planmac for the construction of 52 boat slips, an application was filed by Tormac Corporation for 40 additional boat slips to be located on the property adjacent to the Planmac site. Tormac Corporation and Planmac are owned by the same individual. The Tormac application was subsequently withdrawn prior to final action being taken on the application and prior to Planmac filing the subject application for modification. On December 15, 1988, Planmac filed the application for modification that is the subject of this proceeding. A reconfiguration of the project was necessary because Planmac had been unable to obtain title to a portion of the bay bottom over which it had originally planned to construct the project. Permit #441008425 was modified once previously. The prior modification extended the expiration date for the permit from June 15, 1988, to June 18, 1991. At the time of the final hearing, Permit #441008425 was still in effect. The proposed modification will reduce the number of boat slips from 52 to 48. Eight of the reconfigured slips will be located over the originally permitted site. The forty remaining slips will be relocated over the former Tormac site, which is immediately adjacent to, and west of, the originally permitted site. The following findings of fact, made by the Hearing Officer in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, are pertinent to the proposed modification: * * * Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper that the controlling depth at the mouth. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habit for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevalent. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. DER, following staff review of the application for modification, issued its Intent to Issue on April 21, 1989. In considering the proposed modification, DER staff assumed that Captain's Cove was a closed system whose waters received no cleansing exchange with Florida Bay. Most of the oxygen replenishment and water purification that takes place within the cove occurs through biological activities. The Intent to Issue dated April 21, 1989, advised that DER intended to issue the requested permit modification. The reconfigured project may be described in the following language taken from the Intent to Issue: The applicant, Planmac Company, Inc., applied on December 15, 1988, to the Department of Environmental Regulation for a permit modification to construct a marina facility consisting of a 280' x 5' wide access walkway, two (2) 160' x 5' wide main piers with twenty (20) 35' x 3' finger piers, two (2) 81' x 5' wide main piers with eight (8) 40' x 3' finger piers, providing a total of 48 boat slips, and to install approximately 300 cubic yards of limerock boulders in a man-made basin (Class III Waters), an artificial waterbody in Section 21, Township 64 South, Range 36 East, Monroe County. The proposed modification is over an area of very sparsely vegetated bottom with water depths between 19 and 27 feet. The reconfigurated project will shade approximately 4,000 square feet less bottom area than the originally permitted project. The reconfigurated project will not exacerbate or contribute to a violation of DER's water quality criteria. The reconfigurated design, as compared to the originally permitted project, will present easier ingress and egress from the docking area and will cause less interference with boat traffic. The reconfigurated design will not affect the manatee that are occasionally sighted in Captain's Cove any differently than the presently permitted design. The Intent to Issue dated April 21, 1989, incorporates all eighteen previously attached conditions to the permit and adds the following additional conditions: No docking is permitted waterward of the terminal finger piers on any of the four (4) main piers to prevent use of adjacent owner's bay bottom. These four (4) terminal docks shall have permanent hand rails constructed and maintained along their waterward edge to further discourage boat mooring. A draft of a legally binding agreement, such as a deed restriction shall be submitted to the Fort Myers DER office for review, modification as necessary, and/or approval within thirty (30) days of permit modification issuance. An approved document shall be recorded into the public records of Monroe County within sixty (60) days of approval by the Department. This agreement shall prohibit any further dock construction on the Planmac/Tormac properties exceeding that authorized by this permit modification. This document shall also prohibit in perpetuity the installation of fueling facilities and boat maintenance facilities, and shall prohibit the mooring of liveaboard vessels throughout the life of the facility. Construction shall not commence until proof of recording has been received by the Fort Myers DER office. The location and configuration of the docks and access walkways shall be modified from the drawings stamped June 18, 1986, to those received December 15, 1988 and attached hereto. The conservation easement, which is incorporated as a condition to the issuance of the modification, has a positive effect because it prohibits further dockage on the Planmac or Tormac properties. Since docks over which DER has no permitting authority could have been placed on these properties, this easement will prevent future unregulated docking there. The reconfiguration of the project and the inclusion of the adjacent lands present no significant environmental concerns that were not present when the original project was permitted. After the issuance of the Notice of Intent by DER on April 21, 1989, the respective Petitioners filed timely challenges to the application. The Petitioners contend that the application constitutes a major modification of the previously permitted project and seek to challenge the project on many of the same grounds that were litigated in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. The modifications proposed by the application that is the subject of this proceeding was processed by DER as a routine, minor modification. As a result of Petitioners' challenges, this proceeding was held. The Petitioners and Intervenor were not permitted to relitigate those issues that had been resolved by Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107.
Findings Of Fact On a site that would abut St. Johns County on two sides, the City proposes to develop as a landfill about 400 of the 880 acres it owns in the southeast corner of Duval County. The proposed southeast landfill is designed to serve the approximately 300,000 people living in Duval County south and east of the St. Johns River, by receiving 1,700 tons of solid waste a day for ten years, 400 or 500 tons a day more than people in that part of the city now generate. Sandhill and Swamp Scattered over the portion of the property proposed for solid waste deposition are cypress marshes and blackgum sloughs isolated from a swamp and from each other by upland pine plantation and sandhills. Except for some 40 acres cut off from the remainder by a fill road, the hardwood swamp covering approximately 265 acres of the City's property is part of the pristine "Durbin Swamp system which is a major wildlife area, including habitat for threatened and endangered species." T. 2820. Durbin Swamp south of J. Turner Butler Boulevard and east of U.S. Highway 1 is "the most valuable wildlife habitat in the area, maybe in the southeastern United States." T.2921, 3058. The City's consultants characterized 64 of the 123 gopher tortoise burrows they found on some 105 acres in the southern part of the site as active. Sherman's fox squirrels feed and nest on the property. Although "very little of the sand hill habitat [remains] in its natural condition on the property," (T. 185) turkey oak, long leaf pine and sand pine communities do survive. Isolated wetlands scattered through the eastern portion of the site have also been timbered, and ditches intersect many of them. St. Regis Paper Company, who owned the land until earlier this decade, "dug a series of canals . . . to drain . . . part of the land ["it was called upper wetlands"] . . . so that the ground could be high enough to raise good grade pine trees." T. 1417. "The isolated wetlands . . . provide habitat diversity for wildlife, a seasonal source of drinking water, possible refuge during forest fires, as well as breeding and forage locations," (T. 1255) according to the City's draft application. "Wildlife noted on the site includes Florida black bear, white-tailed deer, raccoon, armadillo, cottonmouth, river otter, common night-hawk, alligator, yellow bellied sapsucker, turkey, frog, quail, dove and red- shouldered hawk," (T. 1255) also according to the City's draft application. Bobcats are common. According to the St. Johns River Water Management District's chief environmental specialist, "animals that you would find utilizing the uplands . . . would be a range of small rodents [including] mice, rabbits . . . insects, [mostly tree] frogs, toads, snakes [including] black snakes, rat snakes . . . [o]possums . . . pastorine birds, cardinals, bluejays, blackbirds . . . [and] probably some hogs." T.537-8. Wood storks wade and feed in the isolated wetlands on site. Wood stork rookeries have been found five miles to the southeast and seven miles north of the City's property. Bald eagles nest nearby but off site. Eagles used the now abandoned eagle nest on Eagle Nest Island "three-quarters of a mile from this proposed landfill site," (T. 1419) at least as recently as 1983. One or more eagles still perch on a dead cypress limb on the property (T. 2422), if not elsewhere on site. Ospreys, southeastern American kestrels (T.2918) and six or seven species of woodpeckers, including the rare hairy woodpecker (T2914) have also been seen on site. "There are dirt logging roads just as there are in any property in Florida, but not a great number." T. 2751. "Almost all of the pine flatwoods habitat on the site has been replaced with planted pine." T. 184. The property is comparable to the Wacasassa tract in Gilchrist County which is on the Conservation and Recreational Lands list and under consideration for state acquisition because of its "comparatively unaltered nature." T. 2721. In the past, conservation efforts have brought animals to the property for refuge. T. 1420. Listed Species The Florida Game and Freshwater Fish Commission (Game and Fish) lists the gopher tortoise and the Shermans's fox squirrel, said by one witness to be "imminently threatened," (T. 2899) as species of special concern. T. 2875. A species of special concern "is beginning to show a decline and needs to be . . . considered as a target of conservation and if present conditions continue it's going to be listed as threatened." T.2874. Game and Fish lists the Florida black bear, the southeastern American kestrel and the bald eagle as threatened, the same category in which the United States Fish and Wildlife Service (Fish and Wildlife) lists the American alligator. A threatened species is one destined to become endangered "if present trends continue." T.2874. Both Game and Fish and Fish and Wildlife list the wood stork as endangered, and Fish and wildlife lists the bald eagle as endangered. "An endangered animal is one that under present conditions is in danger of becoming extinct in the near future." T.2874. Listed in the Convention on International Trade of Endangered Species are the bobcat and the river otter. By definition, rare animals are not often seen in the wild. The parties stipulated that the staff of CZR, Inc., a consultant engaged by the City, spent an aggregate of 1400 man-hours on the landfill site, of which 429 man-hours were spent on site for the purpose of performing a wildlife survey. T. 2803. Despite their effort and putative expertise, the City's consultants did not see even a single listed animal. This failure contrasts with sightings by hunters and other experts who spent less time on site, and may be attributable to the time of year (two weeks in the fall) the survey was performed (T. 2425-27, 2893, 2899) or to the way in which it was done, (T. 2429, 3067, 3068) which a wildlife ecologist testified rendered it of "trivial value." T. 3079. The study was expedited in anticipation of a hearing date. T. 2426-27. In any case, the survey does not give reasonable assurance that species whose range includes the City's property are not present in suitable habitat on site. T. 2896-97, 3079-80. This is, indeed, the conclusion the City's own experts reached as regards the gopher tortoise itself, because of the clear sign these creatures' burrows give of their use of the property. Similarly, with respect to the Sherman's fox squirrel, although only a single individual was spotted, distinctive nests and piles of pine bracts on site established their presence. Bear tracks corroborate infrequent sightings on the property, as well as south and east of the site. On a large tract of land to the north, bears are fed daily; three or four feed each day. T. 2421. Alligator sign bore witness to the alligator's use of the property, although the only sighting clearly proven at hearing occurred just across the boundary line. Of course, wildlife does not respect legal boundaries. There is no reason not to believe that the red-cockaded woodpeckers, with six active nests within three miles or the Bachman's sparrows heard singing nearby do not frequent the City's property, which offers suitable habitat for both. It is even possible that the Florida panther, common in the area as recently as 30 years ago, may have roamed the site in more recent years in pursuit of deer or feral hogs. Two witnesses swore they had seen Florida panthers within two miles of the site, one only a few months before the hearing, (T. 1362, 1371, 1419), and a third testified he thought a "cat" he had seen two and a half or three years before the hearing just north of the site was a Florida panther. T.2429-32. The Florida Everglades mink, a threatened species according to Game and Fish, has been spotted at least twice in a cypress bog across the street from the City's property, and probably occurs on the property, as well. Not spotted either on the City's property or on adjacent land, the Florida mouse, the eastern indigo snake and the gopher frog are known to make their homes in gopher tortoise burrows. Of these listed commensal species, the indigo snake is particularly likely to inhabit the site. "The blue indigo snake was turned loose on that property in . . . '81 or '82, since it was an endangered species." T. 1420. The site also affords suitable habitat for the long tailed weasel, under review for listing. Game and Fish has listed the Florida mouse and the gopher as species of special concern. Bachman's sparrow is under review for listing. Fish and wildlife views both the red cockaded woodpecker and the Florida panther as endangered, while Game and Fish views the latter as endangered but the former as threatened only. Aquatic or Wetland Dependent An "aquatic and wetland dependent" species is a species that "requires wetlands or aquatic systems to satisfy some critical biological need in its natural life cycle," (T. 524) apart from simply drinking water. "[W]ithout wetlands or aquatic systems, these species would probably be extirpated from the state." Id. The Sherman's fox squirrel, the gopher tortoise, the Florida mouse, the Florida long-tailed weasel, the southeastern kestrel, and Bachman's sparrow are not aquatic or wetland dependent. Because they use watery environments for feeding, reproduction and other purposes, the alligator, the wood stork (the only stork in North America) and the gopher frog are aquatic and wetland dependent. Because "the whole black bear population in our state seems to shift . . . primarily in the fall and winter months, to the wetlands and . . . eat . . . fruit produced in wetland trees," (T. 527) the black bear is deemed wetland dependent. The indigo snake is also so classified because it "seemed to be heavily dependent upon eating frogs." (T. 526). Even though not wetland dependent "historically and naturally," (T. 527) the "less than probably 100 Florida panthers left in the state" are now so viewed because "they have more or less been restricted to the major swamp systems," id., without which they probably would not survive. The contiguous wetlands on site comprise the headwaters of Durbin Creek, which empties into Julington Creek shortly before Julington Creek reaches the St. Johns River. Large scale residential development of lands lying within the watershed of Durbin and Julington Creeks has been proposed. Durbin Creek and the swamp that gives rise to it serve as a "juvenile fish nursery" (T. 2468) for white shrimp, blue crabs, croaker, anchovies, bream, bass, shellfish, bluegill, and sheepshead. Lower dissolved oxygen levels or other stressors in Durbin Creek would decrease populations in fisheries already at carrying capacity, and already threatened by the prospect of overdevelopment. Dredging and Filling The City intends to build a road running east and west between the landfill site and U.S. Highway 1 following, for the most part, an existing dirt logging road, and crossing Old Kings Road, built in 1765 to connect the capital of colonial Georgia with St. Augustine. Turbidity screens and staked hay bales would be used during road construction to protect adjacent waters. After construction, seeding and mulching would stabilize the sloping shoulders of the fill road. In connection with construction of the access road, plans call for filling wetlands contiguous to Durbin Swamp, 2.8 acres within DER's jurisdiction and 3.5 acres within St. Johns River Water Management District's jurisdiction. Fetterbush, gallberry, scrub palmetto, cinnamon fern, bamboo vine and sphagnum moss grow in these contiguous wetlands, under a canopy of slash pine, loblolly bay, cypress and swamp tupelo. The proposed Class III disposal area would lie two hundred feet north of the south property boundary and 600 feet west of the east boundary. Over significant portions of this 88-acre site, fill dirt is to be used to raise the grade, because the land is so low. Enough fill is to be placed in the marshes and sloughs to avoid depositing solid waste in the water. Trucks would haul fill dirt to the eastern part of the site ("the area starting at the northeast corner of the Class III landfill and extending about 300 feet to the west, starting from a point about midway along the eastern margin of the landfill, and extending about 450 or 60 feet to the west, and along the southern portion of the Class III landfill, about . . . 600 feet" T. 1562) and elsewhere on site, smothering isolated wetlands, where more or less healthy vegetation, generally of the kind found in the contiguous wetlands, now grows. The 132-acre Class I disposal area, which would abut the Class III area on the north, would also cover isolated wetlands now on the site. Together with excavation of associated stormwater retention basins, the disposal areas would disturb a total of 46.3 acres of isolated wetlands within the St. Johns River Water Management District's jurisdiction. The St. Johns River Water Management District originally asserted jurisdiction over 48.5 acres of isolated wetlands, City's Exhibit No. 80, but the objectors offered no evidence that staff's subsequent decision that vegetation on one 2.3-acre parcel did not qualify was erroneous. This total does not include isolated wetlands less than half an acre in extent or isolated wetlands lying both within and without the disposal areas which will cease to function as such when truncated by dredging or filling. In this latter category are some ten acres that will not themselves be dredged or filled. T. 2777-8. St. Johns River Water Management District identified 5.3 acres of high quality isolated wetlands with connections off-site that are to be impacted, City's Exhibit No 80, along with another 11.2 acres of "low quality" isolated wetlands. Id. No stormwater retention basin would intrude into DER's jurisdictional wetlands, but approximately nine tenths of an acre falling within the St. Johns River Water Management District's contiguous wetlands boundary would be devoted to stormwater retention basins. Replacement Wetlands To mitigate the planned filling of contiguous wetlands for construction of the access road, the City proposes "to excavate 3.5 acres of nonjurisdictional pine plantation and create a contiguous swamp wetland." City's Exhibit No. 56. Mature dahoon holly, loblolly bay, cypress and gum trees "will be transplanted from on-site [isolated] wetlands proposed for construction impact." Id. A tree spade is to be used to transplant trees with trunks as much as 12 inches in diameter at "breast height" and up to 50 feet tall, along with existing soils, microbial communities and adjacent understory vegetation. The "physical structure of the trees themselves . . . provide a good deal of the habitat." T. 436. Removing mature trees from isolated wetlands and replanting them in created wetlands would, to some extent, mitigate the loss of perches for bald eagles and other birds. Mature trees in the created wetland would be replanted at a density "approximately half that of existing on-site wetlands to be impacted." Id. Only 80 percent of the replantings are to be replaced, if they die; and then only if it is clear within three years that replacement is needed. A six-inch layer of organic soil, to be spread after the trees have been transplanted, would "provide for growth of herbaceous vegetation." Id. The City would monitor the created wetland (part of mitigation area "A") for three years and transplant additional trees, if needed to assure survival of not less than 80 percent of the number of trees originally planted. Of these 3.5 acres, the City has identified 2.8 as specifically intended to mitigate the filling of wetlands within DER's jurisdiction. With respect at least to this portion, the created wetland "will function probably much the same as the 2.8 acres" (T. 2765) to be filled in constructing the access road and "would compensate for the" (T.2765) attendant loss of vegetation. In transplanting mature hardwoods, "[i]t's sort of a physical impossibility to get all the root material . . . [and y]ou also get some loss of branches, limbs and stems just from the physical movement of the tree." T. 2482-83. One reason a wetland "system stays wet . . . is a thick canopy." T.2486. With more sunlight streaming through a sparser canopy, the "vegetation is not going to be the same." T. 2487. "[B]ecause you don't expect the wetlands to function as well as the original wetlands you're replacing, there is a general rule of thumb that . . . you create twice as much wetlands as the wetlands you've destroyed." T. 2488. "A three-to-one ratio would not be unusual for a good mature forested hardwood system." T.467. St. Johns River Water Management District's Applicant's Handbook calls for a ratio between 2:1 and 5:1, but states: "The ratios may also be adjusted when wetlands creation is combined with wetland mitigation proposals such as an open buffer area adjacent to the wetlands, conservation easement, wetland enhancement proposals or alternative mitigation proposals." T. 504. The ratio proposed here is less than one to one. In all, mitigation area A would comprise 11.0 acres of what is now pine plantation. Aside from a .55 acre pond in the middle, mitigation area A would consist of wetlands contiguous to existing wetlands on which three different, if related, vegetative communities are to be planted. In addition, the City proposes to create three different isolated wetland areas, one of which (mitigation area D) it characterizes as "high quality." Six acres of what is now pine plantation would be excavated on the north edge of the property. Using the same, experimental techniques proposed for mitigation area A, cypress trees would be placed on 3.4 acres, and 2.6 acres would be devoted to a combination of loblolly, cypress and dahoon holly. Another 9.8 acres of isolated wetlands would be created within borrow pits, 6.8 acres in borrow area No. 1 (mitigation area B) which would include .55 acres of open water, and 3.0 acres in borrow area No. 2 (mitigation area E.) Just north and east of the truck scales, mitigation area B would receive 200 adult trees per acre planted to the extent they are available on site, or 400 trees per acre planted with nursery stock. The same density is planned for mitigation area E, to be located across the road from stormwater retention basin 4. The City also proposes to remove a segment of a logging road built on fill that now cuts off 40 acres from the remainder of Durbin Creek Swamp. Removal of the fill and revegetation would not only increase the extent of the swamp by 0.3 acres, it would restore historic sheet flow in that part of the swamp. Finally, the City proposes to spread muck, if available, over the shallow, southern part of stormwater retention basin 2 and plant 12 acres of grass ("[w]etland herbaceous species" City's Exhibit No. 80) which, however, the City reserves the right to dredge up "from time to time". Id. p.13. Other Effects, Other Mitigation Building and operating the landfill on the site proposed would displace upland wildlife and fragment largely undisturbed and undeveloped wildlife habitat. Fences along the northern, eastern and southern site boundaries would present a physical barrier. Human activity, particularly daytime traffic on the access road, would also create a "bio-geographical barrier." Developing a landfill at the edge of the swamp amounts to "leapfrogging," instead of expanding existing pockets of industrial or other development. A witness characterized the area to the south of the site as "rural developed"; some 164 people live within a mile of the center of the site. T. 78. But private ranch lands to the north, like undeveloped land to the east, afford good wildlife habitat. Habitat fragmentation divides and isolates animal populations. "Fragmented populations are more susceptible to disease, inbreeding and with time, poaching." T. 2890. The landfill would displace gopher tortoises, their commensals, if any, and other wildlife using sandhill or pine plantation habitat, as well as wildife, including wood storks and other migratory birds, making use of the isolated wetlands that are to be filled over. With the filling of isolated wetlands, migratory birds would lose holly berries and other forage. Filling or excavating acreage at the periphery of the swamp would also destroy habitat and displace wildlife. Wildlife now on site reaching suitable habitat elsewhere will have to compete for limited space against animals that have already established territories. The result should be a net decline in populations. T.2898. Increasingly sequestered, the Durbin Swamp system is already under pressure from urbanization to the north. For animals that remained in the vicinity, development of the landfill would occasion other difficulties. But evidence that landfill noises and odors "would have no discernible impacts to the value of wetlands as habitats for aquatic and wetland dependent species" (T. 528) went unrebutted. A buffer of at least 50 feet would separate contiguous wetlands from stormwater basins and other construction, but this is considerably less than the 528 feet Dr. Harris testified was necessary to avoid "greatly erod[ing] the native faunal diversity of the Durbin Swamp wildlife." T.3073-74. Placement of the landfill on this site would increase the numbers of a half dozen "middle-sized mammal omnivores" (T. 3078) so that gopher tortoises, turkey, quail, "anything that nests on the ground will be subject to the plundering by the enhanced population of raccoons, opossums, gray foxes, red foxes . . . and such." T. 3079. Increased numbers of armadillos would also pose a heightened threat to animals that nest on the ground. Landfill operations can be expected to attract seagulls and birds of other species, including nest predators and the brown-headed cowbird, which takes over other birds' nests to lay its own eggs (T. 3071-2) and would pose a particular threat to Swainson's warbler. It is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat that would be lost to dredging and filling. Wood storks feed on dense fish populations in shallow water, when receding water levels make the fish easier to catch. Isolated wetlands on site that have served this function would be lost (T. 2419), although not all of the isolated wetlands to be lost have enough water to support the kind of fish on which wood storks prey. The deep, steep-sided ponds planned for the mitigation areas do not replicate the necessary conditions. Whether birds may safely feed in or drink from untreated stormwater run-off in shallow portions of the retention basins is doubtful. When it rains, particularly the initial flush of run-off would deliver pollutants, including oil, greases and gasoline left by garbage trucks, to the retention basins. T. 1820-1. Removing the fill road and restoring normal flows to the 40-acre patch of the swamp on the other side, as the City proposes, would not add to feeding areas available to wood storks, except for the 0.3-acre roadway itself. The project would disrupt "very superior black bear habitat." T. 3059. Tending to avoid human activity, bears would likely range further east, foregoing foodgathering on site. On the other hand, food or other refuse brought to the landfill might lure bears to their deaths, intentional or accidental. "[C]ollisions with human vehicles," (T. 3062) is the chief cause of black bear mortality in Florida. Bears have been killed in this fashion within a mile of the site, (T. 351 1411-4, 2438) although not during daylight hours when the landfill would be in operation and garbage trucks would travel the access road. Creation of wetlands will not mitigate destruction of upland habitat. On the contrary, additional upland would be taken to create the wetland mitigation areas planned. But the City proposes to give a conservation easement on 129 acres of upland, adjacent to the swamp, that is to remain undeveloped. The upland easement would preclude a host of uses inimical to wildlife, and would mitigate to some extent the loss of wetland habitat for animals which use both uplands and wetlands, like the black bear, even though cut over slash pine plantation is among the very least important or productive wildlife habitats in Florida. The easement would not include sandhill habitat. The City has also undertaken to give a conservation easement covering some 260 acres of wetlands contiguous with Durbin Creek Swamp. This would not, of course, increase the extent of existing wetlands, but it would add a measure of protection for those that survived the project. Perhaps most importantly the wetland conservation easement would preclude expansion of the landfill further into the wetlands, as long as it remained in force. Existing regulatory restrictions on the use of wetlands prevent many uses, even without an easement. Apparently no regulation precludes harvesting bottomland hardwoods, however, so long as no excavation is involved, and vegetation, once severed, is not redeposited on site. But converting deforested areas to pinelands, without a permit from the Army Corps of Engineers would probably not be authorized, under 33 U.S.C. s.1344 (f)(2). See Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). The City proposes to relocate gopher tortoises and any indigo snakes, gopher frogs or Florida mice that can be found to an unspecified new home off- site. Survival rates for gopher tortoises after similar relocations in the past have ranged between 30 and 100 per cent. By the year 2,000, the St. Johns County gopher tortoise population is predicted to fall by 90 percent, and Duval County is predicted to be devoid of gopher tortoises, even without relocation efforts of the kind proposed. Some or all of the gopher tortoises slated for removal may be descended from those who were brought to the site from Lake City. Perhaps even some who started out in Lake City would themselves make this second exodus to a new promised land. Stormwater Management The site proposed for the southeast landfill does not lie within a basin for which the St. Johns River Water Management District has adopted volumetric requirements. A "set of double [triple (T.1740)] box culverts five feet by eight feet . . . and . . . four other," (T. 425-6), "equalizer culverts," large enough for bears to move through (T. 415) would convey preexisting surface flows. A cross drain in the vicinity of the service plaza would serve the same function. Flood elevations would not increase more than a foot immediately upstream or more than 0.1 feet 500 feet upstream. The access road would not impound surface waters. Exfiltration trenches paralleling the access road "designed based on South Florida's criteria" (T. 1737) would filter contaminants from water running off the road. Within 72 hours of a 24-hour, 25-year return storm, the exfiltration system would be able to treat twice the volume of stormwater that recurrence of such a storm would generate. T. 1743. The scale plaza area where garbage trucks moving east on the access road would be weighed before being directed further down the road to a disposal area, is to be built on an upland portion of the property, and with it a wet detention pond to which surface water from the plaza and associated roadway would drain. Swales and berms would divert surface flow from undeveloped parts of the property that might otherwise reach the detention pond. The interceptor ditch and associated works would reduce by 2.5 hours the time of concentration for runoff from a 202-acre watershed, but cause no other changes in watershed characteristics. A weir would make it possible to regulate overflows and allow detention of run off long enough for biological assimilation of most pollutants. For the 25 year return, 24-hour storm, the pre-development peak rate of discharge (6.3 cubic feet per second) is less than the post-development peak rate without detention (18.4 cubic feet per second) but more than the post- development peak rate of discharge with detention: 3.9 cubic feet per second. An orifice below the weir, with a diameter of 1.5 inches, is designed to discharge less than half the treatment volume (22,088 cubic feet or 2.5 inches times the impervious portion of the area drained) in 64.21 hours. The design meets DER and St. Johns River Water Management District criteria. Portions of stormwater retention basins 1 and 2, situated north of the disposal areas, would lie within the 100-year flood plain. These two retention basins are designed to receive stormwater running off the Class I site or diverted around the site, as is stormwater retention basin 3, while stormwater retention basin 4 is intended to collect stormwater flowing off or around the Class III disposal area. Stormwater retention basins 3 and 4, like the southern area of stormwater retention basin 2, are not to be excavated to a depth of more than five feet below grade, to prevent groundwater from seeping into stormwater retention basins, dewatering the wetlands where it would otherwise emerge. With terraces at 20-foot intervals, to a height of 60 feet above grade for the Class I site and 40 feet above grade for the Class III site, both landfills would resemble Mayan temples, at build out. Ditches around the perimeter of each terrace are designed to convey stormwater to slope drains which would bear water to the level below, eventually to the perimeter ditch on grade, from which it would flow, through box culverts under roads built around the landfill, into the retention ponds. To the extent necessary to prevent groundwater infiltration, the ditches are to be lined. Stormwater retention basin 2 has two discharge structures, while each other basin has a single discharge structure leading to a ditch that would convey stormwater to Durbin Swamp. Perforated pipes, swathed in filter cloth, would be buried under highly permeable sand, along the sides of the retention ponds. Installed above seasonal low groundwater elevations, in order to avoid draining groundwater from the area around the ponds, during dry seasons, (T. 1781) they would have to go below seasonal high groundwater elevations, in order to be low enough to serve as drains for the retention ponds. Ambient groundwater would seep into the pipes, whenever groundwater levels outside the ponds rose above the pipes' elevation. But the pipes would still be able to drain the retention ponds, because of the relatively greater (vis-a-vis soils on site) hydraulic conductivity of the highly permeable sand to be trucked in for use as a filter medium. In time, these side drains or underdrains would clog and require expensive maintenance. But, assuming proper maintenance of the retention pond drains and of the drains that make up the roadway exfiltration system, the landfill and associated development would not flood or dewater wetlands that are not themselves to be dredged or filled. Except what is lost to evaporation, water entering the retention ponds would reach the wetlands, whether through the underdrains, over the weirs and through the conveyance ditches, or by movement underground after seeping through the bottom of the basin. The post-development peak rate of discharge from the area draining into the stormwater retention basins should not exceed pre-development rates for a 24-hour 100 year return storm or any lesser event. Because of roads and other impervious surfaces, a greater volume of surface water should reach the wetlands, causing stages about two inches higher than under pre-development conditions in "a typical summer thunderstorm." T.1782-3. The increase in surface flow corresponds to a decrease in water percolating down into the groundwater, and may result in additional loss to evaporation of water that would otherwise reach wetlands. But any such effect will be slight; surface and groundwater levels and surface water flows will not be adversely affected. T. 1783. Nor will existing surface water storage capabilities be adversely affected, despite the placement of portions of retention basins 1 and 2 within the 100-year flood plain. This encroachment at the very edge of the flood plain would rarely have any effect on surface water flows. Almost all development is to occur outside the ten-year flood plain. The stormwater basins could hold an inch of runoff without discharging water over the weirs. The underdrains, which would, when originally installed, have a hydraulic conductivity of about 130 feet per day, could remove an inch of run-off within approximately 40 hours. On the conservative assumptions that half of a two-foot vadose zone would already be saturated at the time a 24-hour, 25-year return storm dropped an additional 8.9 inches of rain on site, and that soils on site have a porosity of .5, the retention ponds could contain the resultant run-off for treatment, before discharging it first through weirs then through the underdrains. Three surface water monitoring stations are planned. One upstream would make it possible to assess background conditions. Another at the point of discharge from stormwater retention pond 2 would reveal whether the retention ponds and their sidedrains were functioning as intended. A third monitoring station in the southwest corner of the site should give similar information as to the roadside exfiltration system. Hydrogeology Except in the southeastern corner of the City's property, where the ground slopes down to the east, the land the City owns, like the adjacent land to the south owned by the McCormicks, slopes down in a more or less northwesterly direction, falling from 55 feet NGVD on the southern boundary to 15 feet NGVD at the northwest boundary, which intersects an elbow of the swamp. Although groundwater flows east of north under the southeast corner of the property, the flow under the property is generally northwesterly, following the topography. Class II groundwater in the surficial aquifer underlies the property at depths ranging "from almost to land surface to five or 10 feet below." (T. 1517). City's Exhibit No. 161. Groundwater flowing northwesterly crops out in isolated wetlands, evaporates, transpires or discharges into the swamp. To assure that the bottom of each exceeds seasonal high groundwater levels, measured in February of 1987, by the number of inches a 24-hour 25-year return storm would add, fill would be placed under both disposal areas, as needed. Because the Class I solid waste disposal site is to be lined, recharge by rainfall would be precluded there. With a liner intercepting percolating rainwater, groundwater would not attain predevelopment levels. The depression thus induced under the Class I site would more than offset the tendency groundwater under the Class III site would otherwise have to mound up into the bottom layers of solid waste deposited there. Recharge from rainfall (become leachate) would continue at the unlined Class III site; the height of accumulated waste would slow or stop evapotranspiration offsetting percolation there. But groundwater would flow down steeper gradients to lower levels underneath the Class I site (which lies between the Class III site and the wetlands where groundwater discharges) rather than rising into waste disposed of on the Class III site. The horizontal component of flow would continue to exceed the vertical component by several orders of magnitude. Beneath the surficial aquifer, which extends to depths of 50 to 100 feet below ground and consists of sand interspersed with a "matrix of soil, organic materials, clays and silts . . . little layers of clay and hardpan" (T. 1517) lies a continuous, confining layer of gray, sandy material with gravel and shell fragments, 12 to 40 feet thick, blanketing the undulating surface of the Hawthorne formation underneath. "[S]ome 40 percent of the material comprising the Hawthorne formation in this area is clay and the remainder is a mix of sands, silt stone, shell beds and phosphatic sands." (T. 1526) This assures that rainfall or other fluids percolating into the surficial aquifer on site will move horizontally downgradiant, reentering the atmosphere or discharging to the surface, rather than penetrating the thinner aquitard above the Hawthorne formation and sinking another 250 feet or more through the Hawthorne formation itself into the Ocala group and Floridan aquifer below. No subterranean feature in the vicinity permits water in the surficial aquifer to reach the Floridan. No peat, muck or other unstable soils underlie the site. Under 3,000 pounds per square inch, the maximum load anticipated, the ground is not expected to settle more than one inch. The addition of fill dirt does not alter this estimate significantly. Disposal Design The Class III disposal area would not have a liner, a leachate collection system or gas controls. After travelling through soils under the site, leachate from the Class III site would enter the groundwater. The City proposes to train and direct staff, to the end that only yard trash and construction and demolition debris end up in the Class III disposal area, where waste would be deposited directly on fill dirt or naturally occurring soils. No solid waste is to be disposed of within 200 feet of wetlands contiguous to Durbin Swamp lying within DER's jurisdiction. A composite liner of the kind in place at Alachua County's southeast landfill would form the corrugated bottom of the Class I landfill: a 60 mil high density polyethelene layer overlying two six-inch lifts of calcium montmorillonite, a clayey sand that is to be placed on compacted subgrade configured in "a herringbone design with peaks and valleys." T.765 Separating trenches in the valleys, sloping ground would rise, then fall at least two feet for every hundred horizontal feet. Steps would be taken to remove rocks, twigs, roots and the like, before compacting subsoils on site. A machine called a sheepsfoot is to be deployed, once half the montmorillonite has been put down, to pulverize clods and mix the material, in an attempt to assure uniformity within each lift of clayey sand. Other machines would compact each lift to a specified Proctor density. These efforts would not succeed in eliminating all clods or other imperfections, and the sheepsfoot would mix subgrade with the bottom layer of montmorillonite, introducing new impurities. Soils on site have hydraulic conductivity ranging from 1 x 10-3 to 1 x 10-4 centimeters per second. Clayey sand is also subject to desiccation cracking; as it dries out, large cracks appear. On top of this kneaded, compacted and finished 12-inch layer of clayey sand, once it had been inspected to assure the absence of roots, rocks, sticks, glass or other sharp objects, a specialty contractor would unroll strips of unreinforced high density polyethylene. After arranging the panels to minimize seams in the leachate collection trenches, technicians would weld the polyethylene strips to one another. An independent, third-party quality assurance contractor would inspect and test the seams before the synthetic liner was finally positioned, and as flush a fit as possible was achieved. Both the high density polyethylene and the quality assurance program are to meet the requirements of NSF Standard 54 and EPA Publication SW-870, March, 1983. Some wrinkling and occasional flaws in the plastic liner are inevitable. Wrinkling causes ponding, not only of rainwater during construction, but also of leachate, once the landfill is in operation. Tire tracks or other indentations in the montmorillonite layer can also cause ponding. In time, under the growing weight of solid waste, and with heat that biodegradation of the waste would generate, some of the wrinkles might subside, but the liner might also sink into additional depressions. Careful construction could keep ponding to a depth of little more than an inch. T. 2971, 2979. Extrusion welds (when done properly) render the seams stronger than the panels they join. But even if "you are really, really good" (T. 2957) and even when you're careful you get an occasional problem, one or two per acre, no matter how careful you are. And if you're not as careful, you get more, typically something on the order of five holes per acre. T. 2967 Carelessness on one project resulted in as many as 60 flaws per acre. Nondestructive testing methods do not detect all defective welds. T. 2966. Defects may develop after the plastic liner has been inspected. Stress on high density polyethylene associated with "conform[ing] itself to whatever is underneath it" (T. 2962) concentrates in scratches, gouges and crimps to cause "as much as 30 percent" (T. 2964) of the holes in the material. "[T]here is no shortage of scratches on a construction site." T. 2962. Leachate Collection Another high density polyethylene geotextile, chosen for its transmissivity (the geonet), is to be placed on top of the high density polyethylene liner (the geomembrane), where it would act as a synthetic drainage medium. In order to prevent overlying sand's clogging the geonet, compromising its ability to conduct leachate down into the trenches, a third, highly permeable geotextile, "a non-woven needle punched type" (T. 637) (the geofilter) would go directly on top of the geonet. The twelve-inch sand drainage layer blanketing the geofilter would have hydraulic conductivity of 1 x 10-3 centimeters per second, if sufficient quantities of suitable sand could be obtained. (T. 764) Another 12 inches of native soil is to cover the sand drainage layer. While the geofilter and the soil layers above it would parallel the landfill liner on the slopes between trenches, they would form arches over the trenches themselves. Continuing to follow the contours of the montmorillonite, the geomembrane and the geonet would line the trench bottoms. Below these arches, inert drain field rock would fill the lined trenches, supporting one perforated PVC pipe eight inches in diameter in each trench. The Class I landfill is to be built in fourteen 250-foot wide cells, with each cell having two leachate collection pipes on 125-foot centers. Manholes at either end of each leachate collection pipe would allow access, in case unclogging the pipe proved necessary. Longitudinally, the trenches would slope to the north, falling two to 20 feet for every 1,000 horizontal feet. Leachate reaching the trenches would flow along the trench bottoms (or through the pipes) to the manholes on the northern boundary. Also to be made of leachate-impervious PVC, leachate drain pipes, which would not be perforated, would connect all manholes on the northern perimeter. Varying in diameter from eight to twenty inches, depending on the number of manholes they were designed to empty, they would converge at a leachate pumping station north of the perimeter road. T. 590-1. A rupture in one of the single-walled leachate drain pipes could spill massive quantities of leachate on naturally occurring soils. Leachate which reaches the station is to be pumped into a 12,000 gallon storage tank nearby. To be mounted on a concrete slab surrounded by a curb high enough to contain all 12,000 gallons, if the tank failed, the tank would be constructed of high density polyethylene. The plan is to pump leachate from the tank through a four-inch discharge pipe into tanker trucks which would take the leachate to the Buckman wastewater treatment plan for disposal there. During "the maximum leachate production period, when you have 10 cells open," (T.687) an average of 35,000 gallons of leachate a day would require removal for disposal in this fashion. Additional tanks could be built. As a precaution, isolation valves would permit cutting off all flow of leachate to the pump station. In addition, isolation valves would allow cutting off the flow from any of seven pairs of cells (or slowing the flow from all, T. 705) in the event of an abnormal circumstance where leachate production in the facility exceeds the hydraulic capacity of [the] leachate removal system, the pumping station and storage tank and the tanker truck system. T. 591. Isolation berms separate each pair of cells susceptible to being put to use as temporary storage for leachate. The leachate drain pipes themselves afford more than 23,000 gallons of emergency storage. T.703. Ventilation As they decompose, materials to be deposited in the Class I landfill produce methane gas, carbon dioxide, and other, malodorous gases. Collection pipes with eight-inch diameters, running horizontally on 150-foot centers in the second and fifth lifts would allow gas to escape at either end, on the north and south sides of the landfill. This would prevent methane's building up and exploding or catching fire. By assuring their gradual release, it should also minimize the impact of foul smelling gases, which, in any event, are generally undetectable at a distance of more than 1,000 feet. But specific condition eight of the proposed landfill permit requires that the passive system be converted to an active system, if necessary, using vacuum suction and flaring. GIGO Although there "is not much industry in the southeast portion of Duval County," (T. 953) sewage sludges and other industrial wastes "except any hazardous waste as defined in the Federal Register" (T. 947) would be accepted for disposal at the Class I facility, if properly manifested. The proposed southeast landfill would receive waste that would otherwise have gone to the unlined east landfill. Household waste contains toxic materials. Tests of leachate generated in other lined landfills from which hazardous wastes are excluded have demonstrated the presence of some 30 metals and 56 organic compounds. City's Exhibit No. 89. Rainfall percolating through (and moisture already present in) waste deposited at the proposed Class I facility can be expected to leach the same array of substances from materials deposited there. Judging from experience elsewhere, leachate from the Class I facility would contain 13 or 14 (if 4-methyl phenol is included) substances in concentrations in excess of governmental standards or health-based criteria identified by a toxicologist engaged by the City. City's Exhibit No. 90. Among these would be methylene chloride, trichloroethylene, tetrachloroethylene and benzene, (T. 1478) as to which "the current regulatory policy is that it is possible for as little as one molecule . . . to act as . . . a carcinogenic initiator . . . [so] that there is no real threshold." T. 1447. Maximum concentrations would exceed those Florida prescribes as primary drinking water standards for titanium threefold, for benzene fivefold, for chromium more than fivefold, for sodium approximately 16-fold, for manganese 68- fold, for iron 280-fold, and for methyl ethyl ketone almost 130-fold. City's Exhibit No. 90. Methylene chloride would occur in the leachate in concentrations 39 times greater than the "USEPA proposed Preliminary Protective Concentration Limits." Id. Only yard trash "soils/land clearing waste, waste from landscapers" (T.956) and construction and demolition debris, "clean debris, inert materials, construction and demolition wastes that are inert, roofing materials," id., and the like, not mixed either with industrial or with regular household garbage, would be accepted for disposal in the Class III facility. Unless these materials are adulterated, they are "easy to bio-degrade . . . [or] are insoluble," (T. 1923) and rainwater percolating through them should yield a leachate with "neutral pH . . . low to moderate [biological oxygen demand] . . . [and] metals [if any] . . . below detection limits or background conditions." T.1923. But "some materials get in" (T. 2106) despite efforts to exclude them. "Demolition debris can have oiled floors and creosoted pilings as part and parcel of the structure." T. 3008. Old paint contains lead and cadmium. Debris from old houses can include rat poisons. Grass clippings "could contain small amounts of herbicides and pesticides." T.2101. In fact, "it's not unusual for yard waste to be very rich in biocides." T. 3009. Such chemicals are used in Jacksonville. When autopsies of seagulls found at the Girvin Road landfill revealed traces of diazanon, tests of water taken from "the stormwater ponds in the subdivision across the street" (T.990) showed diazanon was present there. Bioassays the DER runs on effluent from the City's Buckman wastewater treatment plant regularly report toxicity in excess of allowable limits (T.1877-8) and the EPA has "identified malathion and diazanon as the toxicants," (T. 1881) which are killing at least one species of flea in certain standard laboratory tests performed on the effluent. Leachate Leakage The composite liner would not keep all leachate generated in the Class I landfill from reaching the naturally occurring soils underneath, and eventually the groundwater under the site. Even under normal operating conditions, and even on the City's optimistic assumption that it can achieve a permeability of 1 x 10-7 centimeters per second, thousands of gallons of leachate a year would escape through flaws in the liner while the landfill was in operation. If leachate drain pipes burst or torrential rains required backing leachate up in the cells, thousands of gallons a day could leak. If two lifts of clayey sand achieve a permeability no lower than 1 x 10-5 centimeters per second, millions of gallons of leachate would enter the groundwater over the ten-year active life of the landfill, even without burst pipes or extraordinary precipitation. Once the Class I landfill attained the design height, it would be capped with impermeable materials to minimize leachate generation. As with the liner underneath, the impermeable cap would be covered with sand to facilitate drainage. Vegetation would hold the drainage soil in place. Closure plans have already been drawn, but they are subject to revision and require DER approval before implementation. If necessary, side slopes could be lined to prevent leachate seepage there. Closure would reduce, but would not end, leachate production and leakage. Virtually impermeable to water, high density polyethylene is highly permeable to certain permeants, including some that occur in landfill leachate. Leachate constituents known as "aromatic hydrocarbons" move "right on through" (T. 3017) high density polyethylene. To some extent, the montmorillonite component of the liner under the Class I area would impede these materials' movement into naturally occurring soils. The evidence did not quantify the montmorillonite's efficacy in this regard, but the City's expert's testimony that leakage of this kind would be "insignificant" (T. 830) went unrebutted. Permeation aside, the rate at which leachate leaks depends on the nature, number and size of flaws in the synthetic liner, the height and duration of the leachate head above the defects, and the transmissivity of what is underneath. Here transmissivity turns both on the hydraulic conductivity of the clayey sand in the vicinity and on the extent of air spaces between the clayey sand and the overlying high density polyethylene. Sand grains cause microscopic spaces, while imperfections in the montmorillonite layer and wrinkling of the polyethylene cause larger spaces. Leachate leaking into a space between the geomembrane and the soil spreads over a larger area before penetrating the clayey soil, in correspondingly larger volumes. Calculations predicated on the transmissivity characteristics of the geonet and the sand layer above it demonstrate a theoretical leachate flow over the liner so rapid that leachate would never accumulate on the geomembrane to a depth of as much as a tenth of an inch. But these calculations assume no ponding behind wrinkles in the synthetic liner, or any other impediment to the flow of leachate. Especially since holes in liners are likely to occur near wrinkles (because stresses are greater there) a more realistic assumption, for calculating leachate leakage rates, is a head of one inch, "the smallest practical hydraulic head you can achieve." T. 2994. On the twelfth day of hearing, when St. Johns County's liner expert testified that a six-inch layer of the montmorillonite might result in permeability as high as 5 x 10-4 centimeters per second, the City had not yet amended its application to increase the thickness of the clayey sand layer from six inches to twelve. The City's proposal now calls for two lifts of a 20 percent clayey sand with a saturated hydraulic conductivity in situ of 1 x 10-7 centimeters per second. This can be achieved, if at all, only with material that laboratory tests indicate has hydraulic conductivity of 1 x 10-9 centimeters per second or less. "[I]f you put down clay that the lab says has a permeability of 10 to the minus 7 centimeters per second, . . . when you put it down in the field you get from one to two orders of magnitude greater permeability than that. . . . related to how thick it is." T. 2988. Even a three-foot liner comprised of six lifts ends up with conductivity ten times greater than the same material under laboratory conditions. Mr. Deans, who designed the liner for the City, testified that a permeability of 1 x 10-7 centimeters per second was "readily achievable" even with six inches of clayey sand, but he had never designed a liner before, and his testimony in this regard has not been credited. To judge from its eleventh- hour amendment, the City did not believe it, either. Only two lifts are to comprise the clayey sand layer. No study of a clayey sand layer as thin as 12 inches has found hydraulic conductivity of less than 1 x 10-5 centimeters per second. Three lifts are necessary to create an effective barrier. "[Y]ou need at least three lifts to get the middle one hopefully working right." T. 2987. "[E]ngineers believe that the bottom layer gets fouled, the top layer cracks and has problems. Your best chance is the in between layers. You need at least three layers, and they would rather have four to be reasonable, and EPA says six." Id. Studies of twelve-inch liners put down in two lifts ("[t]he thinnest one we found anybody had ever studied" T. 2980) showed them to be "inadequate." T. 2987. With an inch of head, assuming defects with an average area of 1 x 10-5 square meters, an assumption with which all the experts seemed comfortable (the City's expert assumed larger holes), the published EPA formula yields a per defect leakage rate of 6.7598 x 10-11 cubic meters per second, assuming hydraulic conductivity for the montmorillonite layer of 1 x 10-7 centimeters per second. But plans to use only two lifts to form a 12-inch layer do not give reasonable assurance of vertical hydraulic conductivity that low. Mr. Coram's testimony to the contrary, expressly predicated on reports of laboratory tests on samples, did not address the evidence that laboratory tests do not tell the whole story, in the case of a thin layer of clayey sand compromised not only by inherent imperfections, but also by highly permeable subgrade soils, kneaded into it by the sheepsfoot. Because "clods are broken down in the laboratory and stones and cobbles are screened from the sample . . . the effects of both are not accounted for in permeability tests on laboratory compacted samples." City's Exhibit No. 190. Substituting a hydraulic conductivity of 1 x 10-5 centimeters per second, the EPA formula yields a leakage rate between 57 and 58 times greater: 3.8898 x 10-9 cubic meters per second. Although the EPA's most recently published leak rate formula makes no allowance for less than an ideal fit between the components of a composite liner, City's Exhibit No. 190, the author of the EPA formula, who testified for St. Johns County, subscribed to modifications to the formula developed to take this factor into account. DER's Exhibit No. 35. The montmorillonite layer's hydraulic conductivity is an unrealistically low measure of the transmissivity of the medium underneath the polyethylene. Using it for this purpose, without adjustment, ignores inevitable, intervening air spaces. Perfect contact between a synthetic liner and the soil it overlies cannot be accomplished, even in a laboratory setting. On a project of the kind proposed, contact would range from good, where the relatively larger size of sand grains in the clayey mix creates air spaces, to poor, where wrinkles (left in to avoid the weakening effects of stretching the material) cause much larger air spaces. No expert found fault with the more recent formulae (Bonaparte/Giroud) set out in DER's Exhibit No. 35, and none quarreled with the proposition that the published EPA formula made unrealistic assumptions about the contact between polyethylene and clayey sand. The Bonaparte/Giroud formula that assumes good contact yields a leakage rate of 1.6090 x 10-8 cubic meters per second per defect, a little more than four times what the EPA formula predicts for an ideal fit, assuming an inch of head and vertical hydraulic conductivity for montmorillonite in situ of 1 x 10-5 centimeters per second. Assuming poor contact, without varying any other assumptions, yields a leakage rate approximately 5.5 times greater: 8.8115 x 10-8 cubic meters per second. In its proposed recommended order, at page 35, DER accepts, at least for purposes of argument, the proposition that contact between soil and geomembrane would be poor in places, and calculates a leachate leakage rate of 5.45 x 10-3 gallons per day (2.3887 x 10-10 cubic meters per second per defect.) But this assumes that "the permeability of the City's clay liner will be 1 x 10- 7 cm per second and the maximum head over liner will be 0.062 inches." The evidence showed that the maximum head could not be kept below one inch, and did not give reasonable assurances that two lifts would result in vertical hydraulic conductivity of 1 x 10-7 centimeters per second for the clayey layer. Substituting an inch for .062 inches gives a rate of 2.9177 x 10-9 cubic meters per second. Substituting 1 x 10-6 for 1 x 10-7 and an inch for 0.062 inches, the leakage rate becomes 1.6034 x 10-8 cubic meters per second. Groundwater Contamination Uncontroverted expert opinion put the flow of groundwater under the Class I disposal area at 0.063 cubic feet or 0.47 gallons per day (2.0592 x 10-8 cubic meters per second) through a hypothetical square or cube one foot on a side. Except under unusual conditions, leachate leaking from the Class I facility would, before entering the groundwater, pass through approximately a foot of fill dirt or naturally occurring soils, which consist in large part (92 to 99 percent) of relatively inert, quartz sand. The presence of organic materials, however small the quantities, raises the prospect of adsorption and other chemical reactions, before steady state is attained. Physically, the soil would disperse the leachate, diminishing concentrations of leachate constituents entering groundwater. After such attenuation as the soil afforded, leachate would enter the groundwater, which would dilute and further disperse it, although not nearly as dramatically as the City's toxicologist testified. This witness assumed uniform mixing, rather than the discrete plume which persons with greater expertise in groundwater contamination convincingly predicted. By using the rate of "groundwater flow beneath a defect and the rate of leakage through that defect . . . [he] c[a]me up with a volume to volume dilution factor to identify a concentration in the groundwater." T. 1214. Because Dr. Jones took an unrealistically low leakage rate as a starting point, he predicted an unrealistically low concentration of one part leachate to 4,400 parts groundwater, inside a cubic foot immediately below each leak. Concentrations vary directly with the leakage rate per defect. T. 1224. The formula that assumes good, but not ideal, contact between liner components yields a leakage rate per defect of 1.609 x 10-8 cubic meters per second, if the layer of clayey sand has hydraulic conductivity of 1 x 10-5 centimeters per second. Substituting this leakage rate, the City witness' methodology yields a dilution ratio of 2.0592 parts groundwater to 1.609 parts leachate, or 1.2798:1, more than a hundred times less than the 130:1 dilution ratio that the City concedes is the minimum it must prove, at the edge of the zone of discharge. See Respondent City of Jacksonville's Motion to Strike St. Johns County's Memorandum Concerning Leachate Rates, p. 5. Substituting the coefficient for poor contact, the ratio in the hypothetical cube under the landfill becomes a paltry 2.0592 parts groundwater to 8.8115 parts leachate or .2337:1. Using Dr. Jones' methodology, a leakage rate of 1.6034 x 10-8 cubic meters per second per defect would result in leachate concentrations in groundwater of one part leachate to 1.2483 parts groundwater. Substituting a rate of 2.9177 x 10-9 cubic meters per second per defect yields a ratio of 2.0592 parts groundwater to .29177 parts leachate, or one part leachate to 7.0576 parts ground water. Even if the contact between geomembrane and montmorillonite were uniformly good and the clayey sand layer had a permeability of 1 x 10-7 centimeters per second at every point, a dilution ratio of only 37.4444:1 would result. In 132 acres of high density polyethylene, the evidence showed that 660 flaws could reasonably be anticipated, and that 132 flaws were absolutely unavoidable. Methylene chloride would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days. Under some leaks, perhaps all, benzene, a proven human carcinogen, would also occur in prohibited concentrations. As leachate plumes dispersed, concentrations would diminish, eventually to levels at which they pose "potentially acceptable" (T. 1475) risks even in the case of "a 70-year water consumption of two liters of water per day by a 70-kilogram adult." T. 1217. No evidence suggested that they would remain in concentrations above these levels by the time they reached the edge of the zone of discharge. City's Exhibit No. 193, which uses a leakage rate much lower than the range of leakage rates likely to occur, if the landfill is built, predicts concentrations of various leachate constituents at the edge of the zone of discharge, assuming a leak at the edge of the disposal area. Multiplying predicted concentrations by quotients, obtained dividing likely leakage rates by the assumed rate, suggests carcinogenic leachate constituents would not occur in prohibited concentrations at the edge of the zone of discharge. But extrapolating in this fashion also suggests that violations may occur outside the zone of discharge, absent attenuation in the vadose zone, in the event of a leak at the edge of the Class I disposal area, for iron, manganese and methyl ethyl ketone. Groundwater Monitoring The City proposes to place monitoring wells at intervals of 250 to 500 feet around the Class I and Class III disposal sites. Some 25 shallow monitoring wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would punctuate the boundary of the zone of discharge. A cluster of wells upgradient would make it possible to monitor background conditions. With two-inch diameters and ten-foot screens, each well would receive a flow of less than a gallon a day. The contaminant plume from the Class III landfill would be large enough to be detected readily in samples drawn from a number of wells. But there was testimony that the plume, even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected. Rather than a single large leak, moreover, the experts predict hundreds of small leaks in the Class I disposal area liner. The assumption is that flaws in the geomembrane would have an area of only one tenth of a square centimeter, on average. Any one of the plumes emanating from such a leak could easily pass undetected through a 500-foot gap between monitoring wells. The monitoring plan apparently relies on the great number of leaks expected. But even if samples from a monitoring well revealed a leak, the magnitude of hundreds of other leaks would not be disclosed. Well Contrived After the City filed its application for a permit to construct a landfill, but before DER had issued its notice of intent to grant the application, four wells were put in on the McCormick property, within three feet of the southern boundary of the City's property, and within 205 feet of the proposed Class III disposal area. The wells are more than 500 feet from the lined, Class I disposal area. Spaced at 1,000-foot intervals, within a 125- foot-wide utility easement in favor of the City of Jacksonville Beach, three of the wells are 25 feet deep and one is 28 feet deep. McCormicks' Exhibit No. 7. Each consists of a length of PVC pipe, 1 1/4" in diameter, leading to a red pitcher pump mounted on a wooden platform supported by four fence posts. City's Exhibit No. 194. Pumps of this kind must "periodically be pumped and primed or they have to periodically be taken apart and have the internal seals and leather valves replaced." T.2005. On April 7, 1988, the St. Johns River Water Management District issued a warning notice to "Haden McCormick" alleging that the wells had not been grouted, had been dug without necessary permits, and had not been the subject of required well completion reports. The next day, the St. Johns County Environmental Protection Board, apparently in response to applications inspired by the warning notice, issued a permit for each well designating the "usage" of each as irrigation. McCormicks' Exhibit No. 7. Well completion reports dated April 14, 1988, reported that the wells had been grouted. McCormicks' Exhibit No. 3. Asked the purpose of the wells in a deposition on April 25, 1988, J. T. McCormick said, "We need to monitor what [the landfill is] doing . . . [W]e need to . . . prepare ourselves for having people live in this area, to occupy it, to monitor it." T. 2227-8 A week earlier J. C. Williamson, Jr. had requested on behalf of B.B. McCormick and Sons, Inc. that the St. Johns County Environmental Protection Board amend the permits to show well usage as "Private Potable" instead of "Irrigation". This request was granted on April 27, 1988. McCormicks' Exhibit No. 2. On May 2, 1988, St. Johns River Water Management District's chief hydrologist wrote a lawyer for the McCormicks that "the completion reports submitted by a licensed driller, and the St. Johns County permits fulfill the requirements of the District." McCormicks' Exhibit No. 1. Analysis of samples of water taken from the wells on February 27 and 28, 1989, revealed total coliform levels acceptable for private wells. John Haydon McCormick explained the decision to put the wells in: [D]uring that week the City had filed their application with the DER which, in a sense, fixed their design . . . and when we became aware that this Class III landfill was as close as it is to our border, we became concerned about the future use of potable drinking water, and after consulting with counsel we were informed that we could legally install wells along that border. T. 2242. No owner of the property where the wells are located lives on the property nor, as far as the record shows, has an owner or anybody who does live on the property ever drunk water from the wells. About a half mile from the City's property are two other wells near a house on the McCormick property. When an owner's son drank water from one or more of the wells, as recently as the fall of 1988, he had to take water to the site with him in order to do it. The hand pumps require priming and nobody has bothered to store water near them for that purpose. On February 26, 1989, when the City's expert arrived for "splitting samples to submit to different laboratories," (T.1007) The "pumps were in a 20-gallon washtub in the back of . . . one of Mr. McCormick's employee's trucks. They were all removed from the well heads . . . [apparently] being soaked to generally recondition the seals in the pumps and to sanitize the pumps." T.2008 Two "of the old leather seals from the pumps [were] on the ground." T.2009. Within the shallow aquifer, groundwater flows from the wells northerly underneath the proposed Class III disposal area in the direction of Durbin Swamp. Use of the four existing wells "would in no way modify the groundwater flow system." T. 2045. But a well or wells could be so constructed on the McCormick property that continuously pumping from them would reverse some of the groundwater flow under the proposed Class III disposal area, to the extent that water flowing from beneath the Class III disposal area could be drawn from one of the existing wells along the McCormick boundary. T. 2075-80. Nor would consumptive use permits be necessary to dig wells which could cause such a change in groundwater flows. T. 2075. When the City discovered the wells abutting the southern boundary of its property, it did not direct its engineers to alter the design of the landfill to preclude solid waste disposal within 500 feet of the wells. The total project cost, excluding legal fees, is estimated in the neighborhood of $46,000,000. Redrawing the plans now to reduce the size of the Class III disposal area, without altering the size of the Class I disposal area, would take two to three months, and cost approximately $100,000. This approach would require reducing the capacity of the Class III area from 4.1 million cubic yards to 2.5 million cubic yards and, unless construction debris, which can be disposed of without a DER permit, were diverted elsewhere, its useful life from about ten years to about six years. Tipping fees would have to be higher "to recover the capital fixed costs over fewer tons." (T. 2208) Increased design costs alone would require recouping an additional 4 cents per cubic yard (more considering the time value of money) from tipping fees for Class III debris. Operations would be less efficient and presumably more expensive. T. 2207. Alternatively, the entire facility could be redesigned to achieve the same capacity and useful life as now contemplated. Such a redesign would require four to six months' work and cost approximately $250,000. Recovering this cost through increased tipping fees for Class III wastes would add slightly more than 6 cents a cubic yard (again ignoring the time value of money.) Alternative sites for disposal of Class III waste are available to the City. Indeed the site for which the City now seeks a permit was not even among the ten sites originally considered for the project. T. 2224-5. Decreased transportation costs to another site closer to the source of such waste might more than offset increased tipping fees. But separate facilities could create other problems. Ms. Nogas explained: From an operations standpoint . . .If I run out of Class III area and . . . site a separate Class III area somewhere else, if I had a truck coming to that facility and he really should have been in a Class I area, and I say "No, go out the gate and go five miles down the road . . .[to the] Class I facility," . . . I have a much better chance of . . . him never showing up at my Class I facility. T 2208-9. On the other hand, when asked about placing a Class III facility elsewhere in Duval County, Ms. Nogas, reiterating an earlier statement, testified, "[I]f that were what we had to go to, I would have no operational problems with it." T. 221. Mr. Wells' testimony that there "are 16,000 acres of less environmentally flawed acres seven to 12 miles from the generating centroid accessible from four-lane roads and not near residential or commercial properties," (T. 1248) and that the proposed site "is the furtherest site from the generating centroid, 21 and three-quarters miles to the dump site, and will cost taxpayers an extra $3 million to $5 million a year in longer haul time" (T. 1247) was received on the issue of the decisionmakers' credibility only.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the City's request for variance. That DER deny the City's application for a permit to construct a landfill. That DER deny the City's application for a dredge and fill permit. That DER grant the City's application for a permit for management and storage of surface waters, on conditions proposed in the intent to issue, unless modified by agreement of all parties. DONE AND ENTERED this 16th day of October, 1989, in Tallahassee, Leon County, Florida. Robert T. Benton, II 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 16th day of October, 1989. APPENDIX A Petitioner St. Johns County's proposed findings of fact Nos. 1-4, 6, 10-12, 14, 16, 18, 21,23, 24-28, 33, 35, 37, 38, 41-45, 47-48, the first sentence of No. 51, Nos. 52-56, 57 except for the first sentence, which is rejected, 58, 59, 62, 64, 66, 68-74, 95-103, 106-109, 111- 116, 118, 131, 132, 133 except for subpart 7, 134, 136 and 137 have been adopted, in substance, insofar as material. With respect to petitioner St. Johns County's proposed finding of fact No. 5, and the second sentence of petitioner St. Johns County's proposed finding of fact No. 51, the design rate is not the same as the current rate of deposition. Petitioner St. Johns County's proposed findings of fact Nos. 7, 8, 9, 13, 15, 17, 22, 75, 110 and 138 relate to subordinate matters. Petitioner St. Johns County's proposed finding of fact No. 19 accurately recites the testimony. Petitioner St. Johns County's proposed finding of fact No. 20 is immaterial. With respect to petitioner St. Johns County's proposed finding of fact No. 29, the City's evidence that leakage of this kind was insignificant went unrebutted. Petitioner St. Johns County's proposed findings of fact Nos. 32 and 120-123 are immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 30, the City's estimates were unreasonably low. With respect to petitioner St. Johns County's proposed finding of fact No. 31, the evidence showed that nine gallons a day was at the upper limit, not that it would actually occur. With respect to petitioner St. Johns County's proposed finding of fact No. 34, at least 13 substances occur in concentrations that exceed health-based standards. Petitioner St. Johns County's proposed findings of fact Nos. 36 and 63, 117, 119 and 135 are proposed conclusions of law. With respect to petitioner St. Johns County's proposed finding of fact No. 39, the probability of a leak on the edge of the disposal area was not established. With respect to petitioner St. Johns County's proposed finding of fact No. 40, the evidence did not show that when "two or more toxic substances are combined" they necessarily have synergistic impacts. With respect to petitioner St. Johns County's proposed finding of fact No. 46, the City's assumption of no attenuation was an appropriately conservative approach that is not inconsistent with the City's unrefuted testimony that attenuation would occur. With respect to petitioner St. Johns County's proposed finding of fact No. 49, the evidence did not prove that the City would allow four feet of leachate to stand on the liner. Petitioner St. Johns County's proposed findings of fact Nos. 50 and 60 immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 61, the evidence did not establish the contentions following the clause ending "and into Durbin Creek,". With respect to petitioner St. Johns County's proposed findings of fact Nos. 65 and 67, the McCormick wells have served ornamental and talismanic purposes, but they were not shown to be potable water supply wells, within the meaning of the rule. At the time of hearing the pumps did not function and were not mounted on the wells. Petitioner St. Johns County's proposed finding of fact No. 76 has been adopted, in substance, insofar as material, except that there was at least one effort to collect toxic wastes in Jacksonville. With respect to petitioner St. Johns County's proposed findings of fact Nos. 77 through 94, proposed permit conditions are not proposed findings of fact. With respect to petitioner St. Johns County's proposed finding of fact No. 124, the evidence was clear that more wetlands were to be destroyed than were to be created. Petitioner St. Johns County's proposed finding of fact No. 125 is rejected as against the weight of the evidence. With respect to petitioner St. Johns County's proposed findings of fact Nos. 126, 127 and 128, mitigation , particularly as regards the wood stork, if the landfill is built. Petitioner St. Johns County's proposed finding of fact No. 129, Durbin Creek enters Julington Creek, shortly before the latter reaches the river. Findings of fact proposed by petitioners J.T. McCormick and the Estate of Benjamin R. McCormick (McCormicks) Nos. 1-4, 6-10, 13, 15-17, 20, 21 and 23 have been adopted, in substance, insofar as material. With respect to McCormicks' proposed finding of fact No. 5, a preponderance of the credible evidence did not establish that the wells would be used to supply potable water in the future, even if the pumps are repaired to make it possible. Nor did the evidence establish any such authentic, "non-forensic," use in the past. With respect to McCormicks' proposed finding of fact No. 11, evidence was adduced that other sites had been considered by engineers the City engaged. T. 2224-5. With respect to McCormicks' proposed finding of fact No. 12, testimony put the delay at two to three months. T. 2139. The City could have avoided this delay. McCormicks' proposed finding of fact No. 14 has been adopted, in substance, insofar as material, except that the proportion of the Class III waste stream construction and demolition debris comprises is not stated at T. 2149. With respect to McCormicks' proposed findings of fact Nos. 18 and 19, the four and six cents per ton computations ignore the time value of money, among other things. McCormicks' proposed finding of fact No. 22 is immaterial. McCormicks' proposed finding of fact No. 24 is properly a proposed conclusion of law. Findings of fact proposed by Florida Wildlife Federation, Inc., St. Johns County Audubon Society, Sierra Club, Inc., Coastal Environmental Society and River Systems Preservation, Inc. came in two unnumbered installments. Findings of fact have addressed the substance of each. Without numbering, it is difficult to treat the material. Petitioner STOP's proposed findings of fact Nos. 5-7, 9-10, 12-18, 20, 22- 24, 26-27, 29, 32-47, 49, 50, 52, 55-57, 59-60, 62, 63, 66, 67, 69, 70, 72 and 73 have been adopted, in substance, insofar as material. Petitioner STOP's proposed findings of fact Nos. 1-4, 30, 31, 65, 71, 75 and 76 are properly proposed conclusions of law in part and relate otherwise to DER's preliminary analysis, which is technically immaterial. With respect to petitioner STOP's proposed findings of fact Nos. 8 and 58, Mr. Kappes said he had seen alligator on site but, when asked for specifics, testified to tracks they had left in the southeast corner of the site. Equally ambiguously, the City stated in its draft application that alligator had been "noted" on the property. The evidence did not show that ospreys are protected or listed in Duval County. Petitioner STOP's proposed findings of fact Nos. 11 and 74 relate to subordinate matters. With respect to petitioner STOP's proposed finding of fact No. 19, the inference that all commensals is present is problematic here, since the gopher tortoises were relocated by man from a site many miles away. With respect to petitioner STOP's proposed finding of fact No. 21, 80 to 82 of 105.7 acres of gopher tortoise habitat would be destroyed. Petitioner STOP's proposed finding of fact No. 25 is immaterial to this application. With respect to petitioner STOP's proposed finding of fact No. 28, Mr. Wiley so testified. With respect to petitioner STOP's proposed findings of fact Nos. 48, 51 and 64, although the conservation easement on uplands would not result in additional habitat, it would preclude further diminution. With respect to petitioner STOP's proposed findings of fact Nos. 53 and 54, no eagles are currently nesting on site, and Eagle Nest Island, where eagles nested until 1983, is off site. With respect to petitioner STOP's proposed finding of fact No. 61, the evidence did not establish that Mr. Kappes saw the red-cockaded woodpecker on site, even though he found six active nests within three miles of the site. With respect to petitioner STOP's proposed finding of fact No. 68, Dr. White so testified. DER's proposed findings of fact Nos. 1-9, 11-15, 17, 24, 26, 33, 37, 39, 41-45, the first three sentences of No. 50, Nos. 52-56, 62-64, 66, 67, except as regards inherent legislative facts, 70-87, 89-92 and 95 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 10, 0.9 acres of wetlands contiguous to Durbin Swamp and within the jurisdiction of the St. Johns River Water Management District would be used for a storm water retention basin. DER's proposed findings of fact Nos. 18 and 20 have been adopted, in substance, except that these steps do not ensure or guarantee a quick return of water quality functions. DER's proposed findings of fact Nos. 21, 32, 35, the last sentence of No. 50, Nos. 51, 88 have been rejected as against the weight of evidence. With respect to DER's proposed findings of fact Nos. 22 and 28, mitigation areas with deep ponds in the middle will permit fish to avoid the conditions under which wood storks feed. With respect to DER's proposed finding of fact No. 23, the steep sided ponds, sparser canopies and lesser extent of created isolated wetlands offset their "higher quality." With respect to DER's proposed finding of fact No. 25, the mitigation proposed does not amount to a one to one ratio. While significant, the easements preserve the status quo and do not compensate for lost wetland functions. With respect to DER's proposed finding of fact No. 27, the evidence suggested no reason why bears would not forage in isolated, as well as contiguous wetlands. With respect to DER's proposed finding of fact No. 29, to the extent possible, existing trees would be transplanted; if they all survived, the number of perches would be undiminished, except for branches broken in the process. With respect to DER's proposed finding of fact No. 30, sightings nearby and habitat on site amount to evidence of use of the site. As regards the indigo snake, testimony that these animals were introduced to the site was uncontroverted. With respect to DER's proposed finding of fact No. 31, alligator tracks were found in the southeastern part of the site. With respect to DER's proposed finding of fact No. 34, no southeastern kestrel nests were found on site. With respect to DER's proposed finding of fact No. 36, it is not in the public interest to issue a permit for a lined landfill that would cause pollution in violation of DER's water quality standards. If a landfill were properly permitted, it would be in the public interest to have access. With respect to DER's proposed finding of fact No. 38, the first sentence (which seems to contradict the fourth) has been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 40, there was no evidence of cumulative impacts to Durbin Swamp, as opposed to Durbin and Julington Creeks. With respect to DER's proposed findings of fact Nos. 46-48, the clayey sand, placed in two six-inch lifts, would have much greater permeability as a unit than samples of the same material screened for certain imperfections and tested in the laboratory. In the field, it would not be possible to remove all clods and other materials that make for greater vertical hydraulic conductivity of the unit. Subgrade mixing would occur, in putting down the first of the two lifts. A 12-inch layer would be many more times transmissive than a liner of the same material put down in six six-inch lifts to attain the three feet DER requires, when no synthetic liner is used. Mr. Fluet did not testify that a 12-inch layer would achieve a permeability of 1 x 10-7 centimeters per second. He testified that nobody who had studied 12-inch layers had reported permeability of less than 1 x 10-5 centimeters per second for a clayey layer of that thickness. With respect to DER's proposed finding of fact No. 49, the geomembrane is subject to the effects of pressure and temperature variation would contribute to wrinkling. With respect to DER's proposed finding of fact No. 57, leachate leakage would diminish after closure, but would not stop altogether. With respect to DER's proposed findings of fact Nos. 59 and 60, the working hypothesis is that even a single molecule of certain leachate constituents may initiate cancer, although concentrations below the levels identified are said to pose no more than an acceptable risk of doing so. DER's proposed finding of fact No. 61 describes the methodology correctly, but the particular results have not been accepted. With respect to DER's proposed finding of fact No. 65, predicted concentrations depend on the leakage rate assumed. With respect to DER's proposed finding of fact No. 68, data showing the composition of discharges to ground water from other Class III landfills were not presented. Supposed "legislative facts" do not constitute evidence. With respect to DER's proposed finding of fact No. 69, the evidence did not show what concentrations of biocides or other chemical constituents were likely to be. With respect to DER's proposed finding of fact No. 93, the phrase "monitoring well" was not used. With respect to DER's proposed finding of fact No. 94, wells Nos. 21 and 22 were between 25 and 35 feet deep. Haydon McCormick testified that a shallow well near the house was for potable water supply. DER's proposed finding of fact No. 96, has been adopted, in substance, except that additional time might not be required for permitting. With respect to DER's proposed findings of fact Nos. 97 and 99, balancing of social and economic interests is appropriate only if hardship is proven, and immaterial otherwise. The City's proposed findings of fact Nos. 1-9, 16-18, 20-25, 30, 33, 35-38, 42, 44, 46, 49, 50, the first two sentences of No. 55, Nos. 58-62, 65, 73, 74, except for the last sentence, Nos. 75, 77-83, 88-92, 94-100, 104, 107, 108 and 110 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 10, despite timbering of the uplands the site was characterized as "relatively unaltered." With respect to the City's proposed finding of fact No. 11, no decline in water levels was shown to be irreversible. With respect to the City's proposed finding of fact No. 12, the study was of "trivial value." With respect to the City's proposed finding of fact No. 13, bald eagles and wood storks do make use of the site and indigo snake(s) were set loose there. With respect to the City's proposed finding of fact No. 14, a witness testified to his "confidence" (T.2918) that the kestrel he spotted was a Southeastern kestrel. Signs of alligator were found near the southeast corner of the property. With respect to the City's proposed finding of fact No. 15, hunting was mentioned. The City's proposed findings of fact Nos. 19, 54, 56 and 84 pertain to subordinate matters. With respect to the City's proposed finding of fact No. 26, the witness so testified. With respect to the City's proposed finding of fact No. 27, it was not proven that noise would be "minimized." With respect to the City's proposed finding of fact No. 28, bears could move through the culvert, but elsewhere the access road (particularly during the day), fences and human activity on site would indeed "impede black bear movement in the area." The City's proposed findings of fact Nos. 29, 48, the last sentence of 55, Nos. 57, 71, 72, 85, 87 and the last sentence of 101 have been rejected as being against the weight of the evidence or as unsupported by the preponderance of evidence. With respect to the City's proposed finding of fact No. 31, mobility will not assure successful relocation if existing populations are fully utilizing habitat in the vicinity. The City's proposed findings of fact Nos. 32, 86 and 93 are properly proposed conclusions of law. With respect to the City's proposed finding of fact No. 34, groundwater was shown unlikely to reach solid waste on site. With respect to the City's proposed finding of fact No. 40, the maximum head would not be less than one inch. With respect to the City's proposed finding of fact No. 41, such sand might not be available on site. With respect to the City's proposed finding of fact No. 43, some leachate would leak through the liner. With respect to the City's proposed finding of fact No. 45, some rainwater would infiltrate. With respect to the City's proposed finding of fact No. 47, the evidence did not show that the clayey sand layer would attain so low a vertical hydraulic conductivity. If these liners have performed well, it has not been without leakage, both through flaws and by permeation. With respect to the City's proposed finding of fact No. 51, the subgrade would be inspected, in an effort to assure complete removal of sharp objects. With respect to the City's proposed findings of fact Nos. 52 and 53, permeability is specific to the permeant. The values quoted are for water. High density polyethylene is highly permeable to aromatic hydrocarbons. That liners leak is not speculation. With respect to the City's proposed finding of fact No. 63, the design engineer envisioned circumstances that would require backing leachate up in the landfill. With respect to the City's proposed finding of fact No. 64, violations were proven, in the absence of sufficient attenuation in the vadose zone, and attenuation there was not quantified. With respect to the City's proposed findings of fact Nos. 66 and 67, these evaluations assumed unrealistically low leachate leakage rates. With respect to the City's proposed finding of fact No. 68, this elaborate house of cards bears little relationship to the language of the free from rule. But this approach, too, shows violations, if realistic leakage rates are used. With respect to the City's proposed finding of fact No. 69, credible and credited evidence of dramatically higher leachate leakage rates than they assumed contradicted their conclusions. With respect to the City's proposed finding of fact No. 70, the witness so testified. With respect to the City's proposed finding of fact No. 76, the precise constituents of the Class III leachate were not proven. With respect to the City's proposed finding of fact No. 102, the witness so testified. With respect to the City's proposed finding of fact No. 103, the well that Haydon McCormick jetted in was 25 to 35 feet deep. With respect to the City's proposed findings of fact Nos. 105 and 106, wells could be placed so that enough water drawn from them would reverse the gradient and cause pollutants to move toward the McCormick property. With respect to the City's proposed finding of fact No. 109, the evidence about the effect on operations was ambiguous. With respect to the City's proposed finding of fact No. 111, it is unlikely that the McCormicks would take steps to reverse the flow of groundwater. APPENDIX B Three methods of calculating per defect leachate leakage rates (in cubic meters per second) were proven at hearing, each expressed as an equation or formula requiring values for three variables, for their solution, viz.: h = height of leachate head over defect (in meters) a = area of defect (in square meters) Ks = permeability (vertical hydraulic conductivity) of clayey sand layer beneath defect (in meters per second) The method advocated by the City, published by the EPA, and shown (by the author) to reflect ideal contact between liner components, which does not obtain in practice, is: Q = (0.7) x (h) x (a0.1 x Ks0.88). The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect good contact between liner components, shown likely to occur in places, is: Q = (0.21) x (h0.9) x (a0.1 x Ks 0.74) The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect poor contact between liner components, shown likely to occur in places, is: Q = (1.15) x (h0.9) x (a0.1 x Ks 0.74) In each case, Q represents the flow of leachate through each defect. COPIES FURNISHED: Carlos Alvarez and Carolyn S. Raepple Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526 Harrison D. Upchurch and Frank D. Upchurch, III Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170 St. Augustine, Florida 32085-0170 Joseph M. Glickstein, Jr. Glickstein and Glickstein 444 Third Street Neptune Beach, Florida 32233-5111 David S. Dee and Allan Wagner Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 C. Rufus Pennington, III Margol and Pennington, P.A. Suite 1702, American Heritage Tower 76 South Laura Street Jacksonville, Florida 32202 Debra Swim 1323 Diamond Street Tallahassee, Florida 32301 Sidney F. Ansbacher Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207 Dan Brooks Hendrickson and 104 Sixth Avenue 4620 Arapahoe Avenue Pass-A-Grille, Florida 32706 Jacksonville, FL 32208 Frank X. Friedman, Jr. T. R. Hainline, Jr. G. Stephen Manning Marcia P. Parker Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, Florida 32207 William H. Congdon and Chris McGuire 2600 Blairstone Road Tallahassee, Florida 32399-2400 Kathryn L. Mennella Post Office Box 1429 Palatka, Florida 32078-1429 Larry Gilmore 9131 Fort Caroline Road Jacksonville, FL 32225 Larry A. Wells 237 Pablo Road Ponte Vedra Beach, FL 32082 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
The Issue The issue in this matter is whether the Joint Application for Environmental Resource Permit and Authorization to Use State-Owned Submerged Lands and Federal Dredge and Fill Permit to dredge sediments from specified areas in the Anclote River and surrounding bayous and lagoons should be granted.
Findings Of Fact Petitioner Henry Ross resides at 1005 South Florida Avenue, Tarpon Springs, Florida. The City of Tarpon Springs (City of Tarpon Springs or City) is located on the Gulf of Mexico and is a coastal community with 56 miles of shoreline. The City of Tarpon Springs is known as the "sponge capital of the world" and has a sponging industry that dates back to the early 1900s. Other activities within the City are recreational boating and shrimp and other commercial fishing operations. The Department of Environmental Protection (Department) is the agency of the State of Florida charged with the responsibility of regulating activities in, on, or over surface waters and wetlands of the state pursuant to Chapter 373 and the rules promulgated thereunder. Pursuant to these responsibilities, the Department is responsible for reviewing and taking final agency action on all environmental resource permit or dredge and fill permit applications. The City's Application, filed with the Department in December 1998 and at issue in this proceeding, is an environmental resource permit application for authorization to use state-submerged lands. The Application initially sought authorization for new dredging and maintenance dredging of approximately 16,888 cubic yards of sediment from 11 locations in or adjacent to the Anclote River and surrounding bayous and lagoons. These areas are Outstanding Florida Waters and are identified as follows: Area 1, Tarpon Bayou; Area 2, Kreamer Bayou (Upper Tarpon Bayou); Area 3, Kreamer Bayou (West Chesapeake Point); Area 4, Kreamer (Bayshore Access); Area 5, Sunset Lagoon; Area 6, Anclote River; Area 7, South Tarpon to Spring Bayou; Area 8, Minetta Bayou; Area 9, Innes Bayou; Area 10, Spring Bayou; and Area 11, Lake Lutea. Consistent with its procedures, the Department sent copies of the Application to all the appropriate agencies for comments and then initiated its own review of the Application. Copies of the Application were sent to Protected Species Management, formerly within the Department, but currently under the Florida Wildlife Conservation Commission; the Army Corps of Engineers; the Department of Community Affairs; and State Lands, an office in the Department responsible for determining how much of the project occurs on state submerged lands. These various offices responded by sending comments to the Department. Based on the agency comments, as well as the Department staff person’s own knowledge and experience, the Department requested additional information from Blasland, Bouck and Lee, Inc. (B.B.L.), the engineering firm that prepared the application on behalf of the City. Also of importance to the Department was the issue of whether the project proposed in the Application was new dredging or maintenance dredging. In order to make this determination, the Department requested additional information from B.B.L. and/or the City about past dredging in the area. This determination was necessary in order to ensure that the statutory criteria for issuing the permit was satisfied. If the City's proposed project were "new" dredging, there was a likelihood of increased boating traffic in the area. On the other hand, if the proposed project were maintenance dredging, there would likely be no increased boating traffic. B.B.L. and/or the City responded to the Department's request, indicating that there was not adequate evidence or information of past dredging. In the absence of such evidence or information, the Department relied on other information to determine if the proposed project was maintenance dredging or new dredging. Specifically, the Department reviewed the Application and other information submitted by the City and/or B.B.L., and aerial photos of the area from 1989, provided by the Army Corp of Engineers. The Department staff also considered observations made and information obtained as a result of their field inspections of the areas. Based on its review of all pertinent information, the Department found that, with the exception of Area 6, the areas designated for the proposed dredging activities were existing navigational channels and were currently functioning as such. Ultimately, the Department determined that the proposed project was a maintenance dredging project and that the purpose of the project was to have the City maintain these existing navigational channels, regardless of their origin. During the Department's 1999 field inspection, the Department staff looked at the depth and width of all existing channels. With regard to depth, the Department believed that the City should not dredge any deeper than the present channels. The Department's decision regarding the width and length of the channels was based on the existing depth of the channels; existing habitat values; the Department's site inspection; current site conditions; the current bathymetry provided by the City, which the Department confirmed; and consideration of what is necessary for safe and common navigation. With respect to Area 6, the Department found that there had been some degree of boating traffic in that area in the past. However, the Department concluded, based on its field inspection, that area had not been maintained adequately to consider it a functioning navigational channel. Therefore, dredging in Area 6 would be considered new dredging. After the Department staff conducted the 1999 field inspection, the Department sent a letter to the City, which recommended how the project could be modified and how some of the potential impacts could be minimized or avoided. Some of the Department's concerns involved the proposed dredging depths and widths of the channels discussed in paragraph 12, and the sensitive habitats in the areas to be dredged. The City addressed the concerns raised by the Department in a June 1999 letter and, in September 1999, the City modified its Application to address those concerns. The City's Application, as modified, significantly changed the whole concept of the project. In light of the modifications, the project changed from one that would increase boating traffic to one that would maintain current boating traffic. Because the Department concluded that the maintenance dredging proposed in the modified Application would not increase the frequency or size of boats using the areas or channels, there will be no secondary impacts associated with new or increased boating traffic. In response to the Department's concerns and requests, the City modified its Application to reduce the initially proposed dredging depths of the channels. For example, in some instances, the City had initially proposed that the depth of the channels be five feet, but subsequently, reduced the depth to three feet. Based on these modifications related to depths and widths, at this time, the City will not dredge Areas 1, 7, 8, and 10 because no dredging is necessary to maintain current depths of the channels. However, if there is accretion or accumulation of sediment at some of those locations, the City will have the right under the permit proposed to be issued, to dredge those areas during the term of the permit. Any dredging, however, would have to be consistent with the terms of the permit. At this time, only three areas have evidence of accreted sediments (accumulated silt) and will be dredged: Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea. The City's Application, as modified, reduces or minimizes the impact on the environment in the areas to be dredged, as well as the impact on sea grasses and manatees in those areas. Moreover, the proposed maintenance dredging project will reduce the risks for manatees associated with shallow water by increasing the water depths to safer levels. The Save the Manatee Club (STMC) opposes the proposed dredging project. The STMC considers the proposed project as new dredging and its typical response to such projects is that new dredging may affect manatees or manatee habitats in a negative manner. In this case, the STMC recommended that the Department deny new dredging because the cumulative effect from increased boat traffic will be adverse to manatees and will have more than a negligible effect on the species. Notwithstanding its opposition to the project, the STMC recommended measures to protect manatees should the project be approved. Most of these measures were included in the conditions incorporated in the Notice of Intent to Issue Environmental Resource Permit. In reviewing the City's modified Application, the Department considered the cumulative impact of the proposed project. Contrary to the opinion of the STMC, the Department reasonably determined that because this proposed project involves maintenance of existing navigational channels, there is little potential for cumulative impacts to be an issue. The Florida Wildlife Conservation Commission (Commission) is required to review and comment on all environmental resource applications relative to how the projects will impact manatees. After carefully reviewing and considering the modified Application, the Commission determined that the project, as proposed in the modified Application, varied significantly from the original Application and concluded that "the areas to be dredged are limited to those considered maintenance dredging," and that sea grasses have been avoided. The Commission also concluded that the conditions in the Notice of Intent to Issue regarding manatees' protection are adequate to offset the expected impacts to manatees from the proposed activity. The Notice of Intent to Issue includes the following conditions which minimize the impact to manatees: (1) a manatee observer must be designated and this observer must be in the water when the proposed work is being done; (2) if a manatee is sighted within 50 feet of the dredging activity, the activity will stop until the manatee is out of the area; (3) a log which details the sighting of manatees will be maintained; (4) work will not be performed after sunset because manatees cannot be seen during that time; (5) in-water work will be performed from March to November when manatees are less likely to be in the area; (6) when possible, work will be performed using a hydraulic dredge; and (7) boat traffic within the area will operate at a slow speed during the dredging activity. To ensure that conditions regarding sea grass had not changed since the Department's field inspection more than two years prior to this proceeding, Department staff conducted another field inspection of the area on April 11, 2003, four days prior to this hearing. That field inspection focused on Area 6 because it was conducive to some presence of sea grass. The findings of the April 11, 2003, field inspection were consistent with past reports and field inspections, which revealed that the quantity and density of sea grass were extremely low. During the April 1999 inspection, only a few sprigs of sea grass were observed within or adjacent to the potential dredge area. Due to the continued low density of sea grass, the planned dredging activities do not pose any direct negative impacts to the environmentally-protected aquatic vegetation, including sea grasses. The Department has reasonable assurances that the State water quality standards will not be violated by the proposed permit. Initially, the Department had to establish whether sediments at the proposed areas to be dredged contain pollutants. To make this determination, the Department first used a tiered approach established by the Army Corps of Engineers and the Environmental Protection Agency. This tiered approach requires looking at the location of the proposed areas to be dredged and then looking at the consistency of the sediments in that area. Depending on the result of these reviews, additional testing might be required. In this case, the three sites where the proposed dredging was to be done were identified and grain-size analyses of sediments from each of the areas were completed. These analyses provided information regarding the percentage of fine sediments in the areas proposed to be dredged. The higher the percentage of finer sediments, the greater the potential that the sediments contain pollutants. Based on the grain-size analyses, the sediments from the three areas proposed to be dredged--Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea--were coarse enough that they did not have much potential to contain pollutants. Therefore, additional testing of those sites was not necessary. The Department then considered the City's modified Application in terms of how the water quality and quantity will be maintained during the dredging process. For the dredging project, the City proposed using "closed bucket" clamshell dredging and utilizing double floating silt barriers as the containment method. Upon review, the Department authorized the "closed bucket" clamshell dredging for this project. This method is an intermediate method of protecting against pollutants that may be generated by the dredging project. Although hydraulic dredging is a cleaner process, the "closed bucket" clamshell method is more appropriate for this dredging project because it involves "spot" dredging to remove high spots and to maintain the currently existing navigational depths. Pursuant to conditions included in the Notice of Intent to Issue, the City must meet State water quality standards during the dredging events. If the State water quality standards are exceeded, the State has the power to enforce the water quality standards and to shut down any dredging operation that clearly exceeds that criteria. Mark Peterson is currently, and has been for the past two years, the environmental manager of the Department's Environmental Resource Permitting Section. Prior to this, Mr. Peterson was an environmental specialist with the Department. Mr. Peterson has a bachelor of science degree in biology from University of South Florida and a bachelor of science degree in horticulture from Florida Southern College. During his employment with the Department, Mr. Peterson has reviewed thousands of applications for environmental resources permits, exemptions, or authorizations to use State submerged lands. Mr. Peterson has made site visits to locations involved in instances where permits have been issued, with the exception of about two of the 500 approved applications, exemptions, or authorizations. About 50 of the projects were similar to the project at issue in this case. Mr. Peterson has been the Department's primary reviewer of the City's Application and modified Application for this proposed dredging project since its inception. Based upon Mr. Peterson's review of all relevant documents and analyses, the comments of appropriate agencies, and his field inspections of the site, the project, as proposed in the modified Application and the Notice of Intent to Issue Environmental Resource Permit, meets the public interest test set forth in Section 373.414(1). It is specifically found that: The activity will not adversely affect the public health, safety, and welfare or the property of others; The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; The activity will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling; The activity will not adversely affect the fishing or recreational values on marine productivity in the vicinity of the activity; The activity will be of a temporary nature because the channels tend to silt over time (over months, sometimes over many, many years; The activity will not adversely affect in any manner any significant historical and archaeological resources under the provisions of Section 267.061; and The activity will not affect the current condition and relative value of functions being performed by areas. In order to begin this dredging project, the City also needed to get approval from the United States Corps of Engineers and the Pinellas Water and Navigation Control Authority. These agencies have approved permitting the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Department of Environmental Protection enter a final order granting the Application of the City of Tarpon Springs, as amended, and issuing Environmental Resources Permit No. 52-01481903-001. DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2003. COPIES FURNISHED: Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Henry Ross 1005 South Florida Avenue Tarpon Springs, Florida 34689 Thomas J. Trask, Esquire John G. Hubbard, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department. DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984. COPIES FURNISHED: David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 (904)488-9675 Joe Pair 1200 Mahogany Mill Road Pensacola, Florida 32907 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
