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
The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 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
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 The issues are whether Respondent violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing to seat a well casing in a rock layer or other such consolidated formation, and if so, what penalty should be imposed.
Findings Of Fact Respondent is charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. Respondent's duties include the regulation of water wells and water well contractors. Respondent is a water well contractor. As such, he holds Water Well Contractor License No. 2215. On September 25, 1997, Petitioner issued Respondent Well Construction Permit No. 597679.01. The permit gave Petitioner permission to construct a water well, four-inches in diameter, on property owned by Rex Hobbs in Pasco County. Respondent subsequently constructed the water well on the property owned by Mr. Hobbs, using the cable tool construction method. Respondent completed construction of the well on or about October 20, 1997. After the well was constructed, Mr. Hobbs complained to Respondent on several occasions that the well was producing sand, rock, and other debris. Respondent made no attempt to repair the well. In May or June of 1998, Mr. Hobbs filed a complaint with Petitioner regarding the construction of the well on his property. Petitioner's subsequent field investigation did not reveal a significant amount of sediment in the well water. Mr. Hobbs filed a second complaint with Petitioner in the summer of 1998, insisting that the water from his well contained an excess amount of sediment. Petitioner's second field investigation revealed an abnormal amount of sediment in the well water. On July 9, 1998, Petitioner issued a Notice of Violation, advising Respondent that he had violated Rule 40D-3.037(1), Florida Administrative Code, by failing to seat the casing of the Hobbs well into a consolidated formation. Water from the Hobbs well contains sediments including sand, rock, and other debris. These sediments interfere with the operation of plumbing, appliances, and irrigation devices, which utilize water supplied by the well. The quality of the well water produced by the Hobbs water well is unacceptable. The total depth of the Hobbs well is 131 feet below land surface. The well is cased to 42 feet below land surface. The water pump is set at 84 or 86 feet below land surface. The static water level was 58.2 feet below the land surface. The geologic formation at the end of the casing of the well contains gray clay, yellow clay, limerock, and sand. The end of the casing is not seated in a layer of rock or other consolidated formation. There is no persuasive testimony to the contrary. The area in which the well is located is geologically unstable. Wells in that area generally require 84 feet of casing. Respondent admitted at the hearing that the well is producing sand and needs more "pipe." Failure to seat a well casing into a consolidated formation is a major violation under the Florida Department of Environmental Protection's Water Well Contractor Disciplinary Guidelines and Procedures Manual. Respondent has entered into three previous Consent Orders with Petitioner to resolve permitting and construction violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative fine in the amount of $500 and assessing five points against his water well contractor's license. DONE AND ENTERED this 18th day of August, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 18th day of August, 1999. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Tony Holt 6145 Durant Road Durant, Florida 33530 E. D. Sonny Vegara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
