Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing in this case, the following findings of fact are made. Respondent, DER, is the state agency charged with administering the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder, including the issuing of dredge and fill and certain stormwater permits/water quality certifications. Developers Diversified applied to DER for a dredge and fill permit/water quality certification to construct a shopping center and associated stormwater facilities by filling approximately four acres of DER jurisdictional wetlands. The project site is located at the intersection of State Road 71 and U.S. Highway 90, east of Marianna, Jackson County, Florida. The project is to be known as the Crossroads Shopping Center. It will be constructed on a 20-acre site and will consist of 165,000 square feet of enclosed area and approximately 1000 parking spaces. The center will include a major department store, a grocery store, a junior department store, and various other retail stores. The project site includes an unnamed watercourse (hereinafter known as the "north/south watercourse") which exits the site under U.S Highway 90 and connects to a flood plain to the Chipola River, an Outstanding Florida Water, which is about one mile away. Existing improvements to the property include a metal building, which is being used as an auto parts store, a vacant concrete building, and a residence. Developers Diversified has already removed five or six houses from the site. To the west of the site are several restaurants, a Holiday Inn, gas stations, and automobile dealerships. Other surrounding land use is a mixture of residential, commercial, and agricultural development. Developers Diversified subsequently modified its application and the application was eventually deemed complete on January 15, 1988. On April 12, 1988, DER issued an Intent To Deny. The Intent To Deny indicated that the project would be permittable if certain further modifications were made. After receipt of the Intent to Deny, Developers Diversified further modified the project and reduced wetland impacts to the point that only approximately 0.83 acres of DER jurisdictional wetlands will be filled. Other project modifications included moving the project approximately thirty feet to the west to reduce the amount of fill in the wetlands; the addition of wing walls at areas where fill will be sloped, thereby removing fill from stream areas; the use of an elevated pipe system to convey stormwater across the stream, so as not to impact natural flow; reduction of the project size by approximately 10,000 square feet; and the removal of one outlet, a one-half acre to one acre parcel. The stormwater treatment system was also redesigned to alleviate DER's water quality concerns. The stream systems on site comprise four identifiable watercourses: a) The largest is a north/south stream system which originates off site at a groundwater spring located adjacent to the northeast of the site and then flows south parallel to the eastern boundary of the project site and continues off site through a culvert beneath Highway 90 on the southern boundary of the site. b) The next largest is a small, intermittent forked tributary system which originates in a seepage slope system in the north central area of the project site and discharges into the larger north/south watercourse. c) The next largest is an intermittent east/west watercourse originating in a seepage slope system in the northwestern area of the project site which discharges into the north/south watercourse. d) The smallest is an intermittent watercourse located in the western central area of the site which originates at an outfall pipe from an unidentified source. The streams on site are tributaries to the Chipola River, which is designated in Rule 17-3.041(4)(i), Florida Administrative Code, as an Outstanding Florida Water. The streams themselves are classified as Class III waters pursuant to the standards in Rule 17-3.121, Florida Administrative Code. The site currently receives untreated stormwater runoff from both State Road 71 and Highway 90. Stormwater collection systems from these roads discharge directly through outfall pipes into the stream systems on site. The streams on site currently appear to receive discharges from a number of septic tank systems located either on site or on adjacent sites. High fecal and total coliform levels found in water samples taken by the applicant's experts in the course of water quality analysis of the stream systems on site are evidence of these discharges. The ecosystem found in the undisturbed portion of the project site is a wet mesic hardwood system which is a product of the geologic and hydrologic character of the site. This type of ecosystem is uncommon in the state of Florida and is generally found only in the north central area of the Florida Panhandle. The dominant physical characteristic of the undisturbed wet mesic hardwood ecosystem on site is the presence of functioning seepage slopes. The seepage slopes on this site are hydrogeological formations which are relatively rare within the boundaries of the state of Florida. They occur as gently sloping hillsides or steeper ravines with characteristically porous upper layers of soil composed of sand or sandy clay situated atop lower strata of impervious white clays or limestone rock. Rainwater percolates through the upper layers of these slopes and collects on top of the lower impervious layers. The water then flows down gradients beneath the soil surface, following the contour of the impervious layer until it either encounters a fissure which allows an avenue to the surface in the form of small sinkholes and seepage points, or reaches the bottom of the ravine or slope where it discharges into the larger visible stream systems on the site. The effect of the seepage slope is the attenuation of rainfall-related moisture content in the soils on site and the resultant flattening of the hydroperiod in the system. This effect creates a wet hardwood ecosystem on this site which supports relatively unusual floral and faunal communities for Florida. Despite their hydrologic functions in relation to the wetlands on the site, most of the seepage slope systems on the site are not considered jurisdictional wetlands pursuant to the Department's rule criteria contained in Rule 17-12.030, Florida Administrative Code. The functions of the seepage slope systems on and adjacent to the project site not generally sensitive to adjacent development activities which do not impair the integrity and porosity of the upper strata of the soils on the slope. Department dredge and fill regulations do not provide protection from the adverse effects of silvicultural and agricultural activities for any part of the seepage slope systems on site. Developers Diversified would not be precluded from using for future commercial development purposes a substantial portion of the seepage slope systems on site which is not directly impacted by the proposed project and not within the Department's wetlands jurisdictional area. The natural hydroperiod of a large portion of the seepage slope systems associated with the Chipola River system was destroyed when a dam was constructed nearby at Highway 90 to create Merrits Mill Pond. Because of this factor, the function of the remaining seepage systems is more important. On June 16, 1988, DER, in response to the applicant's permit modifications, issued an Intent to Issue with ten permit conditions, including a mitigation plan consisting of a conservation easement over approximately 12.54 acres on and adjacent to the project site. On June 21, 1988, Developers Diversified filed with DER Proof of Publication of Notice of Proposed Agency Action. The stormwater system is designed to meet the requirements of Chapter 17-25, Florida Administrative Code. The stormwater discharge system utilizes filter fabric and sand to filter oil and grease to prevent water quality violations. The detention ponds have over 50 per cent more storage volume than required by Chapter 17-25, Florida Administrative Code, and are designed to drain through the filters in 36 hours or less. The filtration system is designed using sand media in accordance with Rule 17-25.025(2), Florida Administrative Code. This media is separated from perforated drain pipe by filter fabric which will hold the sand in place. As both ponds are designed to draw down in 36 hours or less, a safety factor of at least 2 is provided (72 hours divided by 36 hours 2). The stormwater system is not only designed to meet the minimum requirements of Chapter 17-25, Florida Administrative Code, but is also overdesigned to accommodate the first three- quarters of an inch of runoff. The system was overdesigned in order to receive not only the stormwater runoff from the project, but also DOT discharges from U.S. Highway 90 and State Road 71, which presently discharge into waters of the state in an untreated condition. Developers Diversified proposes utilization of construction and post- construction Best Management Practices ("BMP") to minimize the potential for adverse water quality impacts. These BMP include the construction of a ten-foot high retaining wall to prevent encroachment into the adjacent small, intermittent channel; steep embankment slopes sodded or stabilized to minimize erosion; silt fencing used along the limits of jurisdictional areas prior to construction; hay bales to reduce erosion upgradient from silt fences; sheet pilings to construct foundations of the pipe bridge; geotextile material to stabilize fill embankments to reduce erosion; disturbed areas to be sodded, grassed, or landscaped to minimize erosion after construction; use of Marafi- Miragrid fabric to stabilize slopes where staking sod alone would be ineffective to hold the slopes; and the use of natural vegetation in uplands, where possible, to retard erosion. Developers Diversified will also employ an on-site full-time engineer to assure that the stormwater system is properly constructed, that all permit conditions are complied with by the contractor, and that construction impacts are minimized. Developers Diversified will conduct the following post-construction activities: monthly monitoring of stormwater inlets to check for buildup of debris; regular sweeping of the parking lot; mowing of the berms of the stormwater retention ponds and removal of debris from the ponds; regular inspection of the ponds for signs of erosion; and regular inspection of the filter fabric by an engineer to make sure that the filtration system is functioning properly. BMP during and after construction will minimize erosion. The stormwater design assures that virtually no particulate load will reach waters of the state. Further, the drainage basin for this site is only approximately 0.2 square miles. Consequently, relatively little runoff from the site potentially contributes to the Chipola River. Improved water quality will result from treating the presently untreated DOT stormwater. In addition, water quality will also be improved by eliminating presently untreated discharge which appears to include sewage. There is, therefore, little potential for degradation of the Chipola River. DER has imposed as a permit condition, and Developers Diversified has agreed to, the posting of a construction bond equal to the amount of the construction costs of the stormwater system plus 10 per cent, to ensure that the stormwater system is constructed in accordance with permit conditions. Water quality sampling was conducted at 11 locations on site and in the conservation area. The results of this sampling indicate a violation of state water quality standards (Chapter 17-3, Florida Administrative Code) at Sampling Station No. 4. Sampling Station No. 4 was selected to measure the water quality from the 6-inch PVC pipe located west of the north/south watercourse. Sampling at this station indicates water quality violations of standards for conductivity (specific conductance), ammonia, and total and fecal coliform. The apparent source of this discharge is effluent from untreated domestic wastewater. Residences and commercial establishments in the vicinity of the project currently use septic tanks. Developers Diversified has agreed to fund the extension of the City of Marianna's sewer system to the project site. Pursuant to Chapter 371, Florida Statutes, all commercial establishments and residences in the area of the project site which are currently on septic tank systems will be required to hook up to city sewage. Therefore, the presence of untreated effluent in waters on the site should be eliminated. The stormwater system at the Crossroads Shopping Center will be constructed so as to provide adequate retention areas to pick up the DOT discharge, which is presently discharging to waters of the state in an untreated condition. Therefore, the improvement in site conditions relating to elimination of the untreated sewage and DOT discharges should be considered a public benefit. No threatened and endangered animal species were observed on site during the course of extensive site inspections by both Developers Diversified's consultants and DER staff. Because of the altered character and location of the site, it is unlikely that any such animal species would be found in the particular habitat on this site. Furthermore, DER permitting staff requested comments from the Florida Game and Freshwater Fish Commission regarding threatened and endangered animal species, and no comments were received. There is no evidence of record in this proceeding that shows the existence of any threatened or endangered animal species on site. No identified populations of plants on the threatened or endangered species list were found on the project site, with the exception of a single pyramid magnolia sighted in the upland area adjacent to the spring head of the north/south tributary. The project site is populated by ubiquitous animal species that can forage in the wetlands and uplands adjacent to the 0.83 acres proposed for filling. Small salamanders, frogs, and minnows were observed in the few areas of pooled or flowing water. It is unlikely that these animals would be significantly affected by the project because they are either located in the conservation area or can forage in areas which will be left undisturbed. Wetlands to be filled on the site also provide minimal opportunities for detrital export. The site contains no water deep enough to have permanent fish populations or to otherwise be of recreational value. Due to the relatively small area to be filled, the small size of the drainage basin, and the large area of wetlands within the Chipola River Basin which contributes to the Chipola River, removal of these wetlands will result in no measurable impact to fish and recreational values in the Chipola River. Permit conditions and construction and post-construction BMP will prevent harmful erosion or shoaling. This project will have no effect on navigation or the flow of water either on site or in the Chipola River. On-site waters present no opportunity for fishing or recreation. There should be no direct or indirect impacts on fishing and recreational values in the Chipola River. Since the on-site system is not a marine system, the proposed project will not affect marine productivity. This shopping center development will be permanent in nature. The construction activity associated with the development will, of course, be temporary. DER typically does not require applicants to conduct archeological site surveys. Instead, DER staff routinely requests comments on potential historic or archeological impacts of dredge and fill projects from the Secretary of State's office. DER staff requested comments from the Secretary of State's office in this case, but no comments were received. Consequently, there is no evidence of record to show the existence of any significant historical or archeological resources on the project site. The City of Marianna and Jackson County have no zoning code, land use map, regulations on development in wetlands, or restrictions on commercial development and only limited restrictions on residential development related to the dedication of infrastructure to the county. There is no evidence in the record indicating that existing projects impact waters of the state in the area of the project, nor is there evidence that there are other projects which are under construction, have been permitted, or have been the subject of a jurisdictional determination. Similarly, there is no evidence that any other specific projects may "reasonably be expected" in nearby jurisdictional areas. Commercial and agricultural uses already surround the site. Since the site is located at a major road intersection, the possibility of future development exists. Should development occur, the conservation easement proposed by the applicant will be especially valuable because it will preserve a majority of the wetland system in the vicinity of the project site. Since the enactment of the mitigation provisions of Section 403.918(2)(b), Florida Statutes, in 1984, the Department has attempted to adopt a rule to carry out this legislative provision. The Environmental Regulation Commission has approved a mitigation rule for adoption, but the rule has been the subject of successive administrative rule challenges. As a result, the Department has been operating under evolving non-rule mitigation policy in processing dredge and fill applications since 1984. Three Department memoranda provide guidance to Department staff involved in the evaluation of mitigation issues raised in connection with dredge and fill applications currently pending before the Department: a) a March 24, 1987, memorandum from Department Secretary Dale Twachtmann to Randy Armstrong on the subject of "Interim Mitigation Policy," b) an April 30, 1987, memorandum from Randy Armstrong to Department District Mangers and Mark Latch on the subject of "Evaluation of Mitigation," and c) a June 20, 1988, memorandum from Secretary Dale Twachtmann to Randy Armstrong titled "Policy for Wetlands Preservation as Mitigation." The selection of the proposal which will be considered to ameliorate the adverse impacts of a project is a site specific, fact specific, and project specific type of determination. Therefore, it is difficult to describe in general terms what kind of measures will be acceptable as mitigation. As indicated in all three memos, the Department does consider a wide variety of types of proposals in determining how a permit applicant can best mitigate the adverse impacts of the proposed project. The Department's dredge and fill permitting technical staff and policy makers generally go through at least three steps in considering what type of mitigation will be best suited for a specific project. The first step is to consider reasonable modifications to project placement and design which will minimize or eliminate any of the anticipated adverse impacts. If, for some reason, the applicant cannot reasonably comply with the Department's suggested modifications to minimize the adverse impacts by redesigning its project, the applicant is then allowed to develop alternatives for the creation of artificial wetland habitat or the enhancement of existing impacted wetlands on the project site. If for some reason the creation and enhancement of wetland areas on-site is not feasible, then the option of the creation or enhancement of wetland areas adjacent to the project may be explored. As a final matter, the Department may consider the dedication of property rights to the state as means of preserving wetlands and other valuable natural areas as a means of mitigating for expected adverse impacts. Property dedication can take the form of perpetual conservation easements or the conveyance of fee simple title on properties within the project boundaries or adjacent to the project site. As a result of a finding by the Department that Developers Diversified's proposed project proposed project was not permittable because of the adverse impacts of the habitat loss in the more valuable western potions of the east/west tributary and the northern forked seepage stream system, the Department considered modification options and mitigation proposals with the applicant in an effort to ameliorate those adverse impacts. The Department suggested a list of modifications which the applicant could make to the proposed project to eliminate or minimize the filling of jurisdictional wetlands on the project site. The applicant made the following modifications to the project in response to the Department's suggestions: The project was moved 30 feet to the west to reduce encroachment into the wetlands from 1.26 acres to 0.83 acres. An elevated stormwater drain crossing of the jurisdictional area was designed to eliminate the fill pipeline crossing originally proposed. A retaining wall 10 feet high and 150 feet long was designed to prevent encroachment of the project into approximately 1,000 square feet of wetlands to preserve a small, intermittent stream channel. Steep embankment slopes (1:1.5) were designed to reduce encroachment into the wetlands. These slopes will be sodded or otherwise stabilized to minimize erosion. Silt fencing will be installed along all limits of project construction adjacent to jurisdictional areas prior to commencement of construction and will be maintained during the entire construction phase. Geotextile or equivalent will be used to stabilize the fill (embankment) to support the building foundations and roadwork along the east side of the site. This will serve to reduce erosion of the fill into the jurisdictional area during and after project construction. All areas disturbed during construction and not paved or covered by structures will be sodded, grassed, or landscaped to minimize erosion after project construction. Mirafi-Miragrid fabric will be used to stabilize slopes where staking sod alone would be ineffective. This material will hold sod firmly in place until it is established. The Department considered wetlands creation and enhancement proposals provided by the applicant for areas both within the boundaries of the site and adjacent to the site. The Department and Developers Diversified discussed the feasibility of developing plans for the re-creation of both the hardwood slope forest type environment and the seepage slope environment either on site or adjacent to the site. However, in further exploring those options, both Department staff and the applicant's engineers agreed that the topography and soil characteristics of the area, combined with the complex nature of the systems which would have to be re-created, made both options impractical and most likely impossible. The department considered the option of accepting preservation of the seepage slope system as mitigation only after determining that wetland creation and/or enhancement options were not available to mitigate the adverse impacts of the project. As a means of utilizing the option of preservation of the remaining wetlands and other natural features within or adjacent to the project site, the Department considered the applicant's proposal for conveying conservation easements over all of the approximately 6 acres, both jurisdictional wetlands and uplands, which remained on the northern and eastern side of the project site. In addition, the applicant arranged for the donation of a conservation easement over approximately 6.5 acres of additional jurisdictional wetlands and related upland areas adjacent to the northern and eastern boundaries of the project site. The proposal provided for the execution of perpetual conservation easements over approximately 12.564 acres of high quality seepage slope and stream systems on or adjacent to the project site. The Department's guidelines on the acceptance of preservation proposals as mitigation recognize that the State of Florida is paying high prices for environmentally unique and threatened land through public land acquisition programs such as the Conservation and Recreation Lands Program. As a result, the Department considers that the possibility of acquiring such properties by donation makes the serious consideration of such preservation proposals environmentally and economically necessary. The Department considered the following factors in determining whether or not it was appropriate to accept the proposed conveyance of conservation easements in this case: Whether or not the parcel is under consideration for purchase and management as a conservation area or is immediately adjacent to one, or is of such high quality as to provide clear benefit to the state as preserved land; The current degree of threat to the parcel; The proximity of the parcel to the site of the project for which mitigation is required; The quality of the conveyance instrumcnt and the status of other encumbrances, such as mineral rights; Whether the parcel is within, near, or adjacent to any waters with a special designation such as parks, aquatic preserves, and Outstanding Florida Waters; The condition of the property as a result of previous activities, such as the disposal of hazardous or solid waste. The Department considered the following factors in assessing the relative value of the areas proposed for preservation on and adjacent to this project site: Relative proximity to existing or anticipated activity that would affect its environmental value; Existing water quality; Presence of threatened or endangered species; Presence of feral animals that would affect resources; Presence of historic or archeological sites; The hydrological importance of the surface water and ground water at that location; The configuration of the parcel. The proposed conservation easements mitigate the adverse effects of the proposed filling by perpetually preserving virtually all of the watershed for the north/south tributary on site and ensuring the continued functioning of this system in the face of future unrestricted commercial development in the area. The proposed preservation option ratio preserves over 15 acres of similar or better quality wetland and related uplands slope systems for every acre of jurisdictional wetlands to be filled. This 15:1 ratio is within the limits of the acceptable range of 10:1 to 100:1 proposed in the Department Secretary's June 20, 1988, memorandum for this type of preservation proposal. The Department has already accepted a mitigation proposal in one standard form dredge and fill permitting matter which involved the use of preservation through conservation areas alone. The DER Southwest District Office has issued Warning Notices to Developers Diversified for two shopping center projects in Pasco County, known as Bayonet Point and Pasco Square. At Pasco Square, the stormwater system was allegedly not constructed in accordance with permit specifications and the mitigation and enhancement areas were allegedly also not constructed. At Bayonet Point, a retention area was allegedly overgrown with nuisance species, a littoral shelf for a retention area was not complete, and portions of the stormwater system were not properly constructed. In addition, DER did not have proof that the conservation easement had been recorded with the Clerk of the Court. Subsequently, the permit was modified to eliminate the littoral shelf requirement. At the time of this hearing, all work on Bayonet Point has been completed to DER's satisfaction. Required work is underway at Pasco Square. No Notice of Violation or other enforcement action has been pursued against Developers Diversified relating to these or any other projects. The CBPG is a not-for-profit corporation incorporated under the laws of the State of Florida and, as such, is considered to be a citizen of the state for the purposes of Section 403.412(5), Florida Statutes. The CBPG filed a verified petition for hearing alleging that the activities sought to be permitted will impair, injure, or pollute the natural resources of the state. The CBPG was concerned about the loss of wetlands on the proposed development site. The totality of the evidence fails to support a finding that CBPG undertook this action for an improper purpose or that its motives were frivolous. The correct full name of the Florida Sierra is "the Florida Chapter of the Sierra Club." The nature of Florida Sierra and of the Sierra Club is described as follows in Section 1.1 of Article 1 of the Bylaws of the Sierra Club Florida Chapter: This Chapter is constituted by action of the Board of Directors of the Sierra Club on February 14, 1971, in accordance with and subject to the provisions of the Bylaws of the Sierra Club. This Chapter is an integral part of the Sierra Club and is governed by its Bylaws; it is not a separate legal entity. The Sierra Club is a California- based corporation registered as a foreign non-profit corporation with the Florida Secretary of State. Section 1.5 of Article 1 of the same Bylaws provides, in pertinent part: "The members of this Chapter shall be those members of the Sierra Club who reside within the geographical limits of the Chapter. . . ." Those geographical limits are identical to those of the State of Florida. And Section 2.1 of Article 2 of the subject Bylaws requires that the management of the affairs and activities of Florida Sierra be carried out in a manner consistent with the purposes of Sierra Club National and the policies and directives of the National Board. The purposes of Florida Sierra include the protection, exploration, and enjoyment of the natural resources of the state. In that regard, the organization has an outings program, is involved in conservation issues, distributes a newsletter, and educates and champions other activities promoting the protection of the natural resources of the state. Florida Sierra has its own bank account with a treasurer responsible for its finances. The Bylaws of Florida Sierra vest the powers and duties of "the Florida Chapter of the Sierra Club" in a board of directors referred to as the Florida Executive Committee. Florida Sierra has not alleged, and there is no evidence of record, that it is a Florida corporation. Florida Sierra has not registered in any county in Florida under the Fictitious Name Statute, Section 865.09, Florida Statutes. Furthermore, Florida Sierra is not an unincorporated association. The national Sierra Club, Inc., a California corporation, is registered in Florida as a foreign corporation authorized to do business in this state.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Developers Diversified, Inc., to fill approximately 0.83 acres of wetlands and for the construction and operation of a stormwater treatment and conveyance system in relation to the development of the Crossroads Shopping Center in Marianna, Florida, and issuing permits with appropriate conditions governing the construction of a shopping center and the stormwater collection and treatment system and the execution of conservation easements as included in the Department's Intent to Issue dated June 16, 1988. DONE AND ENTERED this 14th day of November, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3355 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Developers Diversified Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most rejected as unnecessary historical details. Paragraphs 7, 8, 9, 10, 11, 12, and 13: Accepted in substance, with some unnecessary details omitted. Paragraph 14: Covered in introduction; not necessary in findings of fact. Paragraph 15: Accepted. Paragraph 16: First two sentences covered in introduction; not necessary in findings of fact. The remainder of this paragraph is accepted in substance. Paragraph 17: Rejected as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, and 23: Accepted. Paragraph 24: Accepted in substance with some redundant language omitted. Paragraph 25: Rejected as subordinate and unnecessary details not fully supported by the weight of the evidence. Paragraphs 26, 27, and 28: Accepted. Paragraphs 29 and 30: Accepted in substance with some clarifying additions. Paragraphs 31, 32, and 33: Accepted. Paragraph 34: Accepted with clarifying addition. Paragraph 35: Accepted. Paragraphs 36 and 37: Accepted in substance with some unnecessary material omitted. Paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48: Accepted in substance, although findings actually made are more closely modeled on the proposals submitted by the DER. Paragraphs 49 and 50: Rejected as constituting conclusions of law or argument, rather than proposed findings of fact. (Matters addressed by these paragraphs are discussed in the conclusions of law.) Paragraph 51. Accepted. Paragraph 52: Rejected as subordinate and unnecessary details. Findings proposed by Petitioner Paragraphs 1, 2, 3, and 4: Accepted in substance with a number of unnecessary details omitted. Paragraph 5: First sentence accepted. Remainder rejected as not fully supported by persuasive competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 6: Rejected as subordinate and unnecessary details. Paragraph 7: (There is no paragraph 7.) Paragraphs 8 and 9: Rejected as subordinate and unnecessary details. Paragraph 10: Rejected as an unnecessary generality in light of other evidence about this specific system. Paragraph 11: Accepted. Paragraph 12: Rejected as irrelevant because not found in this system. Paragraph 13: Accepted in part; some parts rejected as unnecessary historical background. Paragraphs 14 and 15: Accepted in substance with some unnecessary details omitted. Paragraph 16: A few details from this paragraph have been incorporated into the findings, but most have been rejected as unnecessary. Paragraphs 17 and 18: Accepted in substance with some unnecessary details omitted. Paragraph 19: Rejected in part as speculative and in part as subordinate and unnecessary details. Paragraph 20: Rejected as not supported by persuasive competent substantial evidence. Paragraph 21: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant. Fourth sentence accepted. Paragraph 22: First sentence accepted. Remainder rejected as argument and as subordinate and unnecessary details. Paragraph 23: Rejected as constituting primarily argument rather than proposed findings of fact. Paragraphs 24 and 25: Accepted. Paragraph 26: Rejected as speculation and as not supported by persuasive competent substantial evidence. Paragraph 27: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Paragraphs 28, 29, and 30: Accepted in substance with some unnecessary details omitted. Paragraph 31: Rejected as constituting for the most part argument rather than proposed findings of fact. To the extent findings are proposed, they are irrelevant or not supported by competent substantial evidence. Paragraph 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as contrary to the greater weight of the evidence. Paragraph 36: Accepted with additional clarifying details. Paragraph 37: Rejected as not supported by persuasive competent substantial evidence. Paragraph 38: Rejected as redundant. Paragraph 39: Accepted in substance. Paragraph 40: First sentence accepted. Second sentence rejected as irrelevant. Third sentence rejected as constituting argument rather than proposed findings of fact. Paragraph 41: Accepted in substance. Paragraph 42: For the most part rejected as unnecessary details. Paragraph 43: Rejected in part as constituting unnecessary details and in part as constituting argument rather than proposed findings of fact. Paragraph 44: Rejected as primarily constituting argument rather than proposed findings of fact. Paragraph 45: Accepted in substance, with the exception of the last sentence, which suggests an incorrect inference. Paragraphs 46 and 47: Accepted. Paragraph 48: Accepted with the exception of the proposition that Florida Sierra acts "independently" of the national organization. (It cannot be truly independent if it is not a separate legal entity.) Paragraph 49: Accepted in substance, with some unnecessary details omitted. Findings proposed by DER Paragraphs 1, 2, 3, 4, 5, 6, 7, and 8: Accepted in substance. Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraphs 19, 20, 21, and 22: Accepted in substance. Paragraph 23: Accepted in substance, with exception of last two sentences, which are conclusions of law. Paragraph 24, 25, 26, 27, 28, 29, 30, and 31: Accepted in substance. Paragraph 32: Rejected as constituting a conclusion of law rather than a finding of fact. This proposed conclusion is discussed in the conclusions of law. Paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44: Accepted. Paragraph 45: Last sentence accepted. Remainder omitted as constituting unnecessary historical background. Paragraphs 46, 47, and 48: Accepted. Paragraph 49: Rejected as redundant and unnecessary. Paragraph 50: Accepted. Paragraph 51: Accepted in substance, with clarification of ratio figures. (The formula appears to be 12.54 divided by .83 = 15.108433.) Paragraph 52: Accepted. Paragraph 53: Rejected as redundant and unnecessary. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 William E. Williams, Esquire Robert D. Fingar, Esquire J. D. Boone Kuersteiner, Esquire Huey, Guilday, Kuersteiner & Tucker P. O. Box 1794 Tallahassee, Florida 32302 Steven K. Hall, Esquire Carol Forthman, Esquire Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact The Dunes Golf and Country Club, Sanibel, is a partnership owned by John K. Kontinos and William R. Frizzell. They operate a nine hole golf course consisting of 65 acres of the eastern portion of Sanibel Island. The golf course is open to the public and, during the winter season, some 150 to 175 persons utilize the facility daily, but in the period May--November, it is utilized by only about 15 or 20 persons per day. The golf course is presently irrigated by water obtained from the lower Hawthorn and Suwannee aquifers through a well that is approximately 737 feet deep. On the days that water is pumped from the well, the pumping duration is from 8 to 12 hours per day, but the monthly hours during which pumping occurs averages approximately 155 hours per month. There is another existing well in another portion of the applicant's property which extends 896 feet into the Suwannee aquifer. The well presently in use (well number 1) has 546 feet of casing and the well that is not in use (well number 2) has 700 feet of casing. (Testimony of Kontinos, Exhibits 2, 4) On December 15, 1977, the Dunes Golf and Country Club submitted an application to the South Florida Water Management District for a consumptive use permit to withdraw 320 acre feet of groundwater per year to irrigate an area of approximately 109 acres. The intent of the application was to obtain a sufficient quantity of water to irrigate the golf course which the applicant intends to enlarge to consist of 18 holes. The additional 9 holes would cover some 44 acres and well number 2 is intended to be activated to provide additional water for this purpose. (Testimony of Kontinos, Keiling, Exhibits 1- 2) The South Florida Water Management District issued the required public notice of the application on March 30, 1978, and objections to the application were received by that agency from the City Council of Sanibel, the Island Water Association, Inc., and George R. Campbell. Public notice of hearing on the application was duly published on March 30, 1978. (Exhibits 5-7) The staff of the South Florida Water Management District reviewed the application and recommended continuation of the applicant's existing use from the lower Hawthorn Formation and use of additional irrigation water from the Suwannee aquifer in the total amount of 320 acre feet annually. It also recommended that the issuance of a permit should be conditioned in various respects to include semiannual submission of water quality data and pumpage records for each well, installation and maintenance of well controls, and repair or replacement of well casings, valves or controls that leak or become inoperative. The staff further recommended that maximum monthly withdrawals from the lower Hawthorn Formation be limited to 7.5 million gallons and 7.6 million gallons from the Suwannee Formation. At the hearing however, the South Florida Water Management District representative changed these recommendations to 8.9 MO and 6.1 MG respectively. Additionally, the initial recommendation of 320 acre feet annual withdrawal was reduced to 200 acre feet. This amount is considerably less that the average of 600 acre feet used on other comparably sized golf courses. Further the staff representative recommended at the hearing that a further condition be attached to the issuance of the permit; i.e., Condition 15, which requires the permittee to submit analyses of total dissolved concentrations in water samples from each well within 30 days of permit issuance and, if such concentration exceeds 4,000 MG/L, logging procedures as to the affected well will be required with necessary safeguards to be employed to eliminate any interaquifer leakage. (Testimony of Gleason, Exhibit 4) The objections of the City of Sanibel and the Island Water Association, Inc. involved concerns that further withdrawals from the lower Hawthorn aquifer will affect the availability of water which is treated by the water association for general island use. In addition, there is concern about possible contamination of the lower Hawthorn aquifer from interaquifer leakage. The Water Association is a member-owned cooperative that is not under the jurisdiction of the municipality. It is concerned about the draw down in the water table which will be occasioned by additional withdrawals by the applicant. It therefore believes that pumping tests should be conducted prior to the issuance of a permit to provide information concerning the capacity and safe yield of the wells. Although an Association expert testified that the proposed Dunes' withdrawal would create a cone of depression that would extend into and influence the existing Water Association wells, the evidence shows such influence to be minimal due to the fact that the Dunes wells are almost three miles away from the nearest Association well. Further, due to the limited time that the Dunes wells are pumped each day, the aquifer recovers to a certain extent during other hours. Although concerns are felt by the Water Association that water quality will be affected because of leakage from the Suwannee aquifer to the lower Hawthorn aquifer due to possible corrosion of steel casings in the Dunes wells, no evidence was presented that such casings are in fact defective and will contribute to degradation of water quality because of additional withdrawals. The additional special condition placed upon the issuance of a permit by the South Florida Water Management District will require correction of any such leakage that is discovered in the future. Previous studies show that the lower Hawthorn aquifer is separated from the Suwannee aquifer by the Tampa Limestone Formation which would slow down any entry of poorer quality water into the Hawthorn aquifer. It is found that the lesser amounts of water recommended by the South Florida Water Management District at the hearing will further reduce the likelihood of water quality degradation or draw down in other Island wells. (Testimony of Butler, Holland, Nuzman, Gleason, Exhibits 6, 8-13) Ecological concerns were expressed at the hearing by a public witness as to the wastefulness of irrigating golf coup Yes and the requirement for fertilizer in sandy soil which causes leaching of nutrients after heavy water use. (Testimony of Webb)
Recommendation That a permit be issued to the applicant authorizing the consumptive use of the quantity of water recommended by the South Florida Water Management District staff, subject to the recommended conditions thereto. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. Wheeler Post Office Box V West Palm Beach, Florida 33402 James D. Decker, Esquire Post Office Box 200 Ft. Myers, Florida 33902
Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, 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 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
The Issue The issue is whether Respondent Koreshan Unity Foundation, Inc., is entitled to a environmental resource permit for the construction of a wooden footbridge over the Estero River east of U.S. Route 41 and authorization to obtain by easement a right to use sovereign submerged lands.
Findings Of Fact Respondent Koreshan Unity Foundation, Inc. (Koreshan) is a not-for-profit corporation dedicated to the preservation of the Koreshan heritage. Koreshan derives its heritage from a largely self-sufficient community that occupied land in south Lee County. For several years, Koreshan has owned a parcel of 14.56 acres at the southeast corner of U.S. Route 41 and the Estero River. This parcel is bounded on the south by Corkscrew Road and contains an amphitheater and historical house, midway between the river and Corkscrew Road. The south end of this parcel contains a museum and parking area with access to Corkscrew Road. The approximate dimensions of the 14.56-acre parcel are 544 feet along the river, 496 feet along Corkscrew Road, and about 1273 feet along the west and the east property lines. The west property line is U.S. Route 41. The right-of-way for U.S. Route 41 is wider at the southern two-thirds of the parcel than the northern one-third of the parcel. A sidewalk runs on the east side of U.S. Route 41 from north of the river, across the U.S. Route 41 bridge, along the west boundary of Koreshan's property, at least to an entrance near the middle of the 14.56-acre parcel. In October 1996, Koreshan acquired 8.5 acres of land at the northeast corner of the U.S. Route 41 and the river. The purpose of the acquisition was to provide parking for persons coming to Koreshan-sponsored events, such as music performances, at the 14.56-acre site. Koreshan rents a small portion of this northerly parcel to a canoe-rental business, which operates where the bridge and river meet. To assist their visitors-some of whom are elderly and disabled--in gaining access to the 14.56-acre site, on November 26, 1996, Koreshan filed an application for a permit and authorization to construct a wooden footbridge across the Estero River about 315 feet east of the U.S. Route 41 bridge. The source of the Estero River is to the east of the U.S. Route 41 bridge and the location of the proposed bridge. After passing under the U.S. Route 41 bridge, the river runs along the Koreshan state park, which is a short distance east of U.S. Route 41, before it empties into the Gulf of Mexico at Estero Bay, which is a state aquatic preserve. The portion of the river at the site of the proposed bridge is an Outstanding Florida Waterway (OFW) and a Class III water. The river is popular with canoeists and kayakers. Persons may rent canoes and kayaks at the canoe rental business operating on the 8.5-acre parcel or the Koreshan state park. Although most canoeists and kayakers proceed downstream toward the bay, a significant number go upstream past the U.S. Route 41 bridge. Upstream of the bridge, the river narrows considerably. Tidal currents reach upstream of the U.S. Route 41 bridge. At certain tides or in strong winds, navigating a canoe or kayak in this area of the river can be moderately difficult. Even experienced canoeists or kayakers may have trouble maintaining a steady course in this part of the river. Less experienced canoeists or kayakers more often have trouble staying on course and avoiding other boats, the shore, vegetation extending from the water or shoreline, or even the relatively widely spaced supports of the U.S. Route 41 bridge pilings, which are about 30 feet apart. Mean high water is at 1.11 feet National Geodetic Vertical Datum. The deck of the proposed footbridge would be 9 feet, 6 inches wide from rail to rail and 16 feet wide in total. The proposed footbridge would extend about 180 feet, spanning 84 feet of water from shore to shore. The bridge- ends would each be about 50 feet and would each slope at a rate of 1:12. The proposed footbridge would rest on nine pilings: four in the uplands and five in the submerged bottom. The elevation of the bottom of the footbridge from the water surface, at mean high water, would be 8 feet, 8 inches. The distance between the centers of the pilings would be 14 feet, and each piling would be of a minimum diameter of 8 inches. According to a special permit condition, the pilings would be treated with chromated copper arsenate, as a preservative, but they would be wrapped in impermeable plastic or PVC sleeves so as, in the words of the proposed permit, "to reduce the leaching of deleterious substances from the pilings." The proposed permit requires that the sleeves shall be installed from at least 6 inches below the level of the substrate to at least 1 foot above the seasonal highwater line and shall be maintained over the life of the facility. The proposed permit also requires that the footbridge be limited to pedestrian traffic only, except for wheelchairs. The permit requires the applicant to install concrete-filled steel posts adjacent to the bridge to prevent vehicles from using the bridge. The proposed permit requires that Koreshan grant a conservation easement for the entire riverbank running along both shorelines of Koreshan's two parcels, except for the dock and boat ramp used by the canoe-rental business. The proposed permit also requires Koreshan to plant leather fern or other wetland species on three-foot centers along the river banks along both banks for a distance of 30 feet. The proposed permit states that the project shall comply with all applicable water quality standards, including the antidegradation permitting requirements of Rule 62-4.242, Florida Administrative Code. Respondents did not raise standing as an affirmative defense. It appears that Petitioners or, in the case of corporate Petitioners, members and officers all live in the area of the Estero River and use the river regularly. For instance, Petitioner Dorothy McNeill resides one mile south of the proposed bridge on a canal leading to the Estero River, which she uses frequently. She is the president and treasurer of Petitioner Estero Conservancy, whose mission is to preserve the Estero River in its natural state. Petitioner Ellen W. Peterson resides on Corkscrew Road, 300-400 feet from the proposed footbridge. For 26 years, she has paddled the river several times weekly, usually upstream because it is prettier. She formerly canoed, but now kayaks. The record is devoid of evidence of the water- quality criteria for the Estero River at the time of its designation as an OFW or 1995, which is the year prior to the subject application. Koreshan has not provided reasonable assurance that the proposed footbridge would not adversely affect the water quality of the Estero River. Although the site of the proposed footbridge is devoid of bottom vegetation and there is no suggestion that this is anything but a natural condition for this part of the riverbottom, there is evidence that the proposed footbridge would adversely affect the water quality in two respects: turbidity caused by the pilings and leaching from the chromated copper arsenate applied to the pilings. The turbidity is probably the greater threat to water quality because it would be a permanent factor commencing with the completion of the installation of the pilings. The leaching of the heavy metals forming the toxic preservative impregnated into the pilings is probable due to two factors: damage to the PVC liner from collisions with inexperienced boaters and high-water conditions that exceed 1 foot over mean high water and, thus, the top of the liner. Both of these factors are exacerbated by flooding, which is addressed below. Koreshan also has failed to provide reasonable assurance that the proposed footbridge is clearly in the public interest under the seven criteria. The proposed footbridge would adversely affect the public health, safety, or welfare and the property of others through exacerbated flooding. South Lee County experienced serious flooding in 1995. In response, Lee County and the South Florida Water Management District have attempted to improve the capacity of natural flowways, in part by clearing rivers of snags and other impediments to flow, including, in the case of the Imperial River, a bridge. One important experience learned from the 1995 floods was to eliminate, where possible, structures in the river, such as snags and pilings, that collect debris in floodwaters and thereby decrease the drainage capacity of the waterway when drainage capacity is most needed. Longer term, the South Florida Water Management District is considering means by which to redirect stormwater from the Imperial River drainage to the Estero River drainage. The addition of five pilings (more as the river rose) would exacerbate flooding. On this basis alone, Koreshan has failed to provide reasonable assurance. Additionally, though, the HEC II model output offered by Koreshan does not consider flooding based on out-of-banks flows, but only on the basis of roadway flows. In other words, any assurances as to flooding in the design storm are assurances only that U.S. Route 41 will not be flooded, not that the lower surrounding land will not be flooded. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect the conservation of fish and wildlife, for the reasons already stated with respect to water quality. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect navigation or the flow of water. The flow of water is addressed above. Navigation is best addressed together with the next criterion: whether the proposed activity would adversely affect fishing or recreational values or marine productivity in the vicinity of the activity. Despite the presence of only two public launch sites, boating is popular on the Estero River. Reflective of the population growth of Collier County to the south and the area of Lee County to the north, the number of boaters on the Estero River has grown steadily over the years. The canoe- rental business located on the 8.5-acre parcel rented canoes or kayaks to over 10,000 persons in 1996. Many other persons launched their canoes or kayaks for free from this site and the nearby state park. Lee County businesses derive $800,000,000 annually from tourism with ecotourism a growing component of this industry. The Estero River is an important feature of this industry, and the aquatic preserve at the mouth of the river and the state park just downstream from the proposed footbridge provide substantial protection to the scenic and environmental values that drive recreational interest in the river. It is unnecessary to consider the aesthetic effect of a footbridge spanning one of the more attractive segments of the Estero River. The proposed footbridge and its five pilings effectively divide the river into six segments of no more than 14 feet each. This fact alone diminishes the recreational value of the river for the many canoeists and kayakers who cannot reliably navigate the U.S. Route 41 bridge pilings, which are more than twice as far apart. As to the remaining criteria, the proposed footbridge would be permanent and the condition and relative value of functions being performed by areas affected by the proposed activity is high. There is conflicting evidence as to whether the proposed footbridge would adversely affect the remnants of an historic dock, but it is unnecessary to resolve this conflict. The mitigation proposed by Koreshan does not address the deficiencies inherent in the proposed activity.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner Council of Civic Associations, Inc., and denying the application of Respondent Koreshan Unity Foundation, Inc., for an environmental resource permit and authorization to obtain an easement for the use of sovereign land. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Kathy Malone Vice President and Treasurer Council of Civic Associations, Inc. Post Office Box 919 Estero, Florida 33919-0919 Reginald McNeill Dorothy McNeill, President Estero Conservancy, Inc. 26000 Park Place Estero, Florida 33928 Mark E. Ebelini Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Phyllis Stanley, President 12713-3 McGregor Boulevard Fort Myers, Florida 33919 Cathy S. Reiman Cummings & Lockwood Post Office Box 413032 Naples, Florida 34101-3032 Francine M. Ffolkes Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Conclusions Having considered the entire record in this cause, it is concluded That all statements contained within the petition have been found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the state comprehensive plan and the St. Lucie County Growth Management Plan, as amended. That the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate special-district government. DONE and ENTERED this 14th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1988. Appendix A (Names and Addresses of Witnesses) Joseph P. Strazzula, Post Office Box 3152, Fort Pierce, Florida 34948 Bruce Scott Benewitz, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Fred A. Greene, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300, Winter Park, Florida 32789 Exhibit 1 Appendix B (List of Documentary Evidence) St. Lucie County Context Nap Metes and Bounds Legal Description of District Warranty Deed of October 29, 1985 Conceptual Phasing Plan of District Conceptual Water and Wastewater Master Plan of District Estimated Infrastructure Construction Schedule and Cost 8A St. Lucie County Growth Management Policy Plan 8B St. Lucie County Ordinance No. 86-92 Economic Impact Statement Authorization of agent Exhibit 2 Letter of September 29, 1987 from Secretary Robertson to Sharyn Smith Exhibit 3A Copy of Notice published in Florida Administrative Weekly Exhibit 3B Notice of publication in The News Tribune Exhibit 3C1 Service of Notice of Hearing on Edgar A. Brown Exhibit 3C2 Service of Notice of Hearing on Joseph P. Strazzula Exhibit 3C3 Service of Notice of Hearing on Douglas S. Putnam Exhibit 3C4 Service of Notice of Hearing on Charles Stone, Jr. Exhibit 3C5 Service of Notice of Hearing on Dr. Kenneth Fulton Exhibit 3D1 Service of Notice of Hearing on St. Lucie County Attorney Exhibit 3D2 Service of Notice of Hearing on St. Lucie County Commission Chairman Exhibit 3E Service of Notice of Hearing on Secretary, Department of Community Affairs Exhibit 4A Notice of St. Lucie County meeting Exhibit 4B Copy of St. Lucie County Resolution No. 87-241 Exhibit 5 Copy of St. Lucie County Ordinance 86-92 Exhibit 6 County Context Map (enlargement) Exhibit 7 Existing and Abutting Land Use Map (enlargement) Exhibit 8 Conceptual Phasing Plan of District (enlargement) Exhibit 9 Corrected Table 3 of Economic Impact Statement Exhibit 10 Table 3 of Economic Impact Statement Exhibit 11 Table 1 of Economic Impact Statement COPIES FURNISHED: Richard S. Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Glenn W. Robertson, Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is whether proposed rule 62-160.300(5)(c) is an invalid exercise of delegated legislative authority, as alleged in the Amended Petition for Rule Challenge (Petition) filed on October 17, 2017.
Findings Of Fact Background The Department is the agency charged with the responsibility of adopting quality assurance rules for the collection and analysis of water quality data submitted to the Department. § 403.0623(1), Fla. Stat. These standards have been codified in chapter 62-160. They are designed to "assure that chemical, physical, biological, microbiological and toxicological data used by the Department are appropriate and reliable, and are collected and analyzed by scientifically sound procedures." Fla. Admin. Code R. 62-160.110(1). Part III of chapter 62-160 addresses laboratory certification and procedures. The Legislature has mandated that when water quality data are used to determine the quality of drinking water or the effluent of a domestic wastewater facility, all laboratories generating such data for submission to the Department must hold certification from the Department of Health (DOH) under the Department of Health, Environmental Laboratory Certification Program (DOH ELCP). See §§ 403.863(7) and 403.0625(2), Fla. Stat. Although DOH is the state's environmental laboratory accreditation program body, the Department has rulemaking authority to determine what types of laboratory data require DOH ELCP certification. § 403.0623, Fla. Stat. Not every laboratory test requires certification for the Department to accept the resulting data. Certified laboratories must have approved Standard Operating Procedures (SOPs), a formalized, written set of instructions which are followed for sample collection and preservation. The SOPs are reviewed by the Department to ensure they provide sufficient laboratory quality assurance. Petitioners are among the more than 100 laboratories in the state that fall within the class of laboratories that must meet DOH ELCP certification standards. They provide testing services primarily for local governments, consultants, and commercial accounts. Petitioners take pride in the fact that they meet all federal and state standards for testing, their laboratories are owned and managed by professionals, and they have been successfully performing these services for decades. The dispute here centers on proposed rule 62- 160.300(5)(c), which allows non-certified "statutorily created volunteer monitoring organizations" to submit water quality data to the Department for certain purposes. Petitioners, who are in the business of generating environmental data to the Department, allege that if they are required to compete with a non-certified laboratory, it will "directly affect their ability to earn a living and will interfere with their contractual relationships." Currently, the only statutorily created volunteer monitoring organization in the state is the Florida LAKEWATCH Program (Lakewatch), an organization created in 2002 within the Department of Fisheries and Aquaculture of the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida. See § 1004.49, Fla. Stat. Petitioners' Operations Florida-Spectrum, located in south Florida, spends around $100,000 annually to keep its five laboratories properly certified. Around a third of its business is testing for municipalities, a third for industries (such as investor-owned utilities), and a third for consultants. It performs lake water sampling for three cities for the purpose of compliance monitoring, but the proposed rule does not allow a non-certified laboratory to submit data to the Department for this purpose. Flowers, located in the greater Orlando area, estimated its annual direct cost to remain certified is around $52,000.00. It provides testing services primarily for domestic waste water effluent and drinking water. Only five percent of its testing is in lakes. Although Benchmark did not provide its annual cost to be certified, more than likely it incurs a similar expense, as it performs water testing primarily for engineering firms and municipalities located along the west coast from Tampa to Naples. A very small percentage of work involves testing in lakes to determine compliance with drinking water standards. The Proposed Rule Existing rule 62-160.300(5)(e), in effect since 2002, allows the Department to waive the certification requirement for an entity that uses "[m]ethods approved for site-specific, limited-use purpose if such certification is specifically waived by the Department program for which the method will be used." The provision has rarely been used, and then "usually only [for] research projects directly funded by DEP." Pet'r Ex. 14, p. 2. The Department proposes to substantially revise existing rule 62-160.300, entitled Laboratory Certification, by adding new text, deleting language, and renumbering the revised provisions. Although the Notice proposed only a minor change to existing rule 62-160.300(5)(e), the Notice of Change deletes that provision in its entirety and proposes to adopt new rule 62-160.300(5)(c), which allows the Department to consider and use data generated by non-certified "statutorily created volunteer monitoring organizations." New paragraph (5)(c) provides that certification is not required for the following tests or analyses: (c) Methods used by statutorily created volunteer monitoring organizations, when the Department has reviewed and concluded that the organization's Standard Operating Procedures provide sufficient quality assurance requirements for Department purposes. The rule is designed to apply to an organization with a very small laboratory and a single purpose. Lakewatch's only purpose is to sample water quality in lakes, with an emphasis on total nitrogen, phosphorus, chlorophyll a, and water clarity. The IFAS laboratory has only "a couple of career staff." Lakewatch performs no sampling for municipalities, commercial accounts, or other entities typically served by certified laboratories. Section 1004.49 authorizes Lakewatch to "[t]rain, supervise, and coordinate volunteers to collect water quality data from Florida's lakes" and to "[c]ompile the data collected by volunteers." The organization consists of citizen volunteers (almost 1,500 as of May 2014), mainly lake residents, who take and hold water samples and then send them to be analyzed by the IFAS laboratory. The results are collected and maintained in a Lakewatch database coordinated by the IFAS. The testing results are forwarded to the Department for inclusion in various databanks. In somewhat unclear terms, a Department witness explained that the purpose of the rule is "to do routine housekeeping for aspects of the rule that [the Department] thought needed revising based on stakeholder input from all sectors." However, the Notice further explains that the new rule "provide[s] increased flexibility for approval of alternative methods," and it "clarif[ies] when [DOH] laboratory certification is not required, because substitute quality assurance requirements will apply." In addition, the Department points out that it has the responsibility of assessing all waters in the State, but lacks the resources to perform this task. At any one time, the Department estimates that Lakewatch is sampling the water in over 100 lakes, many of which are in remote areas that are not accessed by other laboratories. The acceptance of Lakewatch data will fill a gap in the Department's assessment role. Even when data are of lesser quality, they can be valid for some purposes. As a general rule, it is helpful for the Department to maximize the data available for review. Does the Rule Exceed the Grant of Rulemaking Authority? The Notice cites as rulemaking authority four statutes, including sections 403.0623 and 403.0625. Section 403.0623(2) authorizes the Department to "establish standards for the collection and analysis of water quantity, water quality, and related data to ensure quality, reliability, and validity of the data and testing results" and "to adopt rules to implement this subsection." Section 403.0625(1) authorizes the Department and DOH to "jointly establish criteria for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863." Petitioners allege the new rule exceeds the grant of rulemaking authority in section 403.0625(1) because the DOH did not participate in the drafting of the regulation. Because the rule does not create any standards for laboratory certification, DOH input is not required. The Department's routine practice is to informally collaborate with DOH only for issues that are specific to test methodology or topics related to DOH's scope of certification for environmental test methods. Petitioners also contend the rule exceeds the grant of authority in section 403.0625(2), which provides that only certified laboratories may submit water quality data to determine "the quality of the effluent of a domestic wastewater facility." However, this contention has been treated as an argument that the rule contravenes the statute and is addressed in the following section of this Recommended Order. Does the Rule Contravene the Law Being Implemented? The Notice states that the revisions to chapter 62-160 implement more than 20 statutes, including sections 403.0623 and 403.0625. At hearing, Petitioners asserted that Lakewatch volunteers have sampled water in the St. Johns River, which has package plants that impact both the river and the Green Swamp. They did not disclose the extent of such sampling in the river, and, its purpose. Petitioners incorrectly assume the purpose of the rule is to allow Lakewatch to continue to submit data from areas affected by domestic wastewater effluent, in violation of section 403.0625(2). Assuming that river samples were submitted to the Department, the proposed rule does not legitimize the submission of data for that purpose. Petitioners contend the proposed rule will contravene other Department rules which set general requirements for collection and laboratory methods, including minimum holding times. However, the proposed rule authorizes the Department to approve an alternate method or procedure for some methods used by the organization. Therefore, Lakewatch does not follow generally approved requirements for sample preservation. Rather, it follows approved alternate methods evaluated and approved by the Department. Likewise, Lakewatch relies on an approved limited-use method for chlorophyll extraction, rather than following the typical methods used by certified laboratories. Vagueness, Lack of Standards, and Unbridled Discretion The proposed rule requires an organization's data to be of "sufficient quality assurance" to meet Department purposes. Petitioners argue that by simply using the word "sufficient," rather than mandating that the data be "accurate and reliable," the rule gives the Department unbridled discretion in determining what level of assurance is required. However, this is a distinction without a difference. The Department's determination will be based on whether the laboratory procedures conform to the use of approved methods, sample preservation procedures, and recordkeeping and reporting procedures. See Pet'r Ex. 18. The Department will also consider whether the organization has the ability to produce valid data that can withstand scrutiny under the criteria in rule 62-160.670. Id. Depending on the purpose of the data, criteria in other rules will be applied to the approval of methods and acceptance of data. See, e.g., Fla. Admin. Code R. 62-160.330 and 62-160.670. In those instances when certification is not required, new rule 62-160.300(9) requires that the organization's laboratory "follow the relevant Department-approved methods as provided in Rule 62-160.320, F.A.C., and shall meet all other requirements for laboratories as provided in this Chapter." Coupled with the challenged rule, this change sets a floor for quality assurance in uncertified laboratories with approved SOPs. Therefore, a non-certified laboratory must have minimum requirements for method detection limits, reporting and documentation, preservation of samples, data validation, and procedures for coding data that do not meet quality control criteria. Given the different purposes for which data are submitted, and the variability of data quality objectives that must be achieved, the Department must necessarily have some level of flexibility and discretion. It would be impractical to include in the rule every potential circumstance that might arise during this assessment. In sum, the record supports a finding that there are adequate and definitive standards in place to ensure that the operating procedures of a non-certified laboratory are sufficiently reliable for the Department to accept the data. Use of Lakewatch Data Section 1004.49 provides that "[d]ata collected and compiled [by Lakewatch] shall be used to establish trends and provide general background information and shall in no instance be used in a regulatory proceeding." However, the term "regulatory proceeding" is not defined. Even though the law is almost 16 years old, the Department has not yet taken a formal position on how the term should be interpreted and generally decides this issue on a case-by-case basis. While the Department admits that the undefined term is a source of confusion, its practice is to never use Lakewatch data for enforcement action or permit compliance. On the other hand, the Department says the statute is "unclear" on whether Lakewatch data can be used for ambient water quality assessments and restoration plans, such as water listings and Total Maximum Daily Loads. Therefore, Lakewatch data have been used for trend analysis, background information, agency resource allocation, and the compilation of the planning list under the Impaired Waters Rule. The Department does not consider these uses to violate the statutory proscription. From 2013 until August 2017, the Department used Lakewatch data for some purposes that may have been inconsistent with section 1004.49. However, that practice has ceased, and the Department now uses Lakewatch data in a manner that it believes is consistent with the statutory directive. Petitioners argue that the improper use of data during the five- year period, by itself, is a sufficient basis to invalidate the rule. This contention is rejected. After a comparability study of Lakewatch and Department data was conducted by the Department in 2011-2012, the Department initiated a review of the Lakewatch SOPs. The SOPs have been periodically revised, the last time in 2016, to incorporate certain quality control measures recommended by the Department. Although Petitioners contend otherwise, the SOPs provide sufficient laboratory quality assurance for accepting data for trend analysis, setting priorities on monitoring plans, and general information. Petitioners' Substantial Interests Petitioners are concerned the Legislature will create other volunteer organizations and this will result in multiple organizations taking advantage of the new rule. They also fear the Department will amend the new rule to allow other non- certified organizations to submit data. These concerns are speculative in nature and without evidentiary support. Because Lakewatch services are free, Petitioners contend their customers will use Lakewatch volunteers rather than paying a certified laboratory for testing services. However, Petitioners did not identify any "contractual relationship" that will be interfered with by virtue of the rule, any existing customer that will move its business to Lakewatch, or more importantly, the percentage of their work, if any, that coincides with work being performed by the volunteer organization. In sum, the evidence does not support a finding that Lakewatch volunteers will compete for the services now provided by Petitioners, who pay substantial fees each year to remain certified. Petitioners posit that if the proposed rule is adopted, the term "regulatory proceeding" will be applied in such a way as to allow Lakewatch data to be accepted and used for a wide range of testing purposes, including regulatory proceedings. But this assumption is based on speculation, and current law prohibits the rule being applied in this manner. If Petitioners disagree with how the rule is applied, there are other remedies in chapter 120, including a requirement that a point of entry be given to third parties when an agency order is involved. The fact that Petitioners may not be notified every time the Department uses data from a volunteer monitoring organization is not a ground for invalidating the rule. Most of Petitioners' evidence at hearing questioned the reliability and accuracy of testing services by Lakewatch. Among other things, Petitioners contend Lakewatch uses volunteers with limited training and experience, its collection and preservation methods do not conform to acceptable professional standards, the Department has never audited the Lakewatch laboratory, and a 2011-2012 comparability study of Lakewatch data with Department data is flawed in many respects. To determine the validity of the rule, however, more on that story need not be told at this time.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
