The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Respondents qualify for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Respondents are guilty of the violations alleged in the Notice of Violation and Orders for Corrective Action issued by the Director of District Management for the Office of the DEP Northwest District on May 13, 2003.
Findings Of Fact Parties The Department of Environmental Protection (DEP) is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, Florida Statutes, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Respondent, Santa Rosa Three, Inc. (the Corporation), is the fee simple title holder of certain property in unincorporated Okaloosa County, Florida, located between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. The property includes the subject water body, Lake Blake. Santa Rosa II, Inc., is a corporate predecessor in interest to the Corporation. Respondent, Lee Maddan (Maddan), is a long-time resident of Okaloosa County. Maddan is the Petitioner in DOAH Case No. 03-1499. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name, and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially-created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's, the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued, a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the nearest surface waters of the State of Florida. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake resulted from collected rainfall, as well as underground water intrusion in the original borrow pit. At the present time, additional diverted stormwater runoff collects in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that former owner, Ron Blake, excavate the lake and make it ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots. Okaloosa County has installed at least seven pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976, utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake for use as part of its existing stormwater drainage system. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981) for "Blake Lake Modifications" which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984, DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all of the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001, letter, like the previous letter, was issued from DEP's Northwest District and signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the property and the lacustrine wetland. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001, letter, nor the subsequent October 24, 2001 letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time, Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County, an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's dredge and fill jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to an abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or only slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, for purposes of establishing DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria set in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State and in lacustrine wetland. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits, Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented the water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. Such discharged water from Lake Blake ultimately is conveyed through the Okaloosa County stormwater drainage system and released into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Respondents primarily rely on Rule 62-312.050(4), Florida Administrative Code, which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Respondents also cite Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Respondents cite statutory exemptions. The definition of "waters" which are regulated under Chapter 403, as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because of not only its "possible discharge" but because of its actual discharge on the surface waters of Cinco Bayou. Respondents also cite Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake at least since 1976 has been utilized as part of Okaloosa County's stormwater drainage system, which is located landward of Cinco Bayou, it was not designed or constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated or maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction.
Findings Of Fact Based upon the evidence produced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner, Sylvia M. Shelly, is seventy four (74) years old. She is the owner of certain Property located at 1402 Vernon Avenue in Key West, Florida (the "Property"). Petitioner has lived on the Property for the last forty five (45) years. There are two (2) buildings on the Property. Petitioner rents out the building on the front portion of the Property and the top floor of the building on the back portion of the Property. Although the evidence is not clear as to when the buildings were constructed, both buildings are probably over a hundred years old. There are two (2) wells on the Property which were previously used to provide water for the dwellings. In approximately 1959, Petitioner had city water brought to the Property. The FKAA subsequently assumed responsibility for the water service. The FKAA is a state agency whose primary purpose is to provide an adequate supply of potable water to the Florida Keys. The FKAA has acquired or constructed well fields, treatment plants, transmission pipelines, pumping stations, distribution pipelines, and other related facilities necessary to supply water to the residents of the Florida Keys. See Chapter 76-441, Laws of Florida. There are currently three (3) separate FKAA water lines coming onto Petitioner's Property with three (3) separate meters. At the time the city water was brought to the Property, Petitioner claims the well-water was disconnected from the houses. Petitioner claims that since that time, only city (FKAA) water has been used in the houses. Both wells on the Property have piping going to the buildings which can not be easily traced. The pipes and plumbing systems for both buildings run underneath the buildings and are not color-coded to distinguish between potable water supplied by FKAA and the non-potable water from the wells. Such color coding is now required by the Standard Plumbing Code. Some of the pipes from the wells terminate at hose bibs located on the buildings in near proximity to hose bibs which are connected to the FKAA water supply. At some point, one of the wells was capped. The other well continues in operation and provides water for some of the outside spigots on the Property. Petitioner's well taps into the fresh water lens underlying Key West and produces water that does not meet the minimum standards required for potability. Petitioner uses the well to water her lawn, wash cars and shower after returning from daily swims in the ocean. Petitioner has utilized the outside well-water for such uses since she bought the Property in 1949. Petitioner claims she has been frugal with her use of water and showers outside most of the year. A Cross-Connection Control and Back-Flow Prevention Policy was adopted by the Board of Directors of FKAA at a regular Board meeting on October 17, 1986. This policy was initially adopted as Rule 48-2.013, and has subsequently been amended to Rule 48-2.016. The Rule was adopted pursuant to the provisions of Section 403.850 through 864, Florida Statutes. The Rule incorporates by reference the American Water Works Association ("AWWA") Manual M-14 entitled "Recommended Practice for Back-Flow Prevention and Cross-Connection Control." AWWA Manual M-14 Chapter 5.2 provides as follows: An approved back-flow-prevention assembly shall be installed at the service connection of the water purveyor to any premises where there is an auxiliary water supply or system, even though there is no connection between the auxiliary water supply and the public potable water system. NOTE: In order that the water purveyor may more clearly understand the meaning of the term auxiliary water supply it is necessary to define its meaning. The following discussion will help to clarify this phrase. The term auxiliary water supply (briefly defined in the Glossary) is commonly used to describe water supplies or sources not under the control or the direct supervision of the water purveyor. Typical of such water systems are natural water derived from wells, springs, streams, rivers, lakes, harbors, bays and oceans. Also considered an auxiliary water supply, other than the public potable water supply under the control of the water purveyor, are used waters that have passed beyond the water purveyor's control (at the point of delivery) and that may be stored, transmitted, or used in such a manner as to pollute or contaminate them. Finally, there may be public potable water supplies furnished by some other water purveyor that may or may not be under good sanitary control or may be otherwise unacceptable to the water purveyor. Subsection 5 of Rule 48-2.016 provides "any customer of the Authority who has a POTENTIAL for a cross-connection shall, at his own expense, install, operate, test and maintain an approved back-flow prevention assembly, as directed by the Authority. The Back-Flow prevention assembly shall be tested for effectiveness and reliability upon installation and yearly thereafter, with evidence thereof provided to the Authority." In approximately 1991, the FKAA determined that one of Petitioner's neighbors had a cross-connection between a well on that neighboring Property and the city water supply. At the same time, the authorities checked Petitioner's Property. Apparently, no cross-connection was discovered and Petitioner was told not to worry. On or about April 14, 1994, Petitioner received a request from the FKAA directing her to install a back-flow preventer on all three water lines. After several phone calls, an attorney representing Petitioner submitted a letter to FKAA arguing that Petitioner's well did not represent a hazard to the community water supply and Petitioner should not be required to install a back- flow preventer. On or about June 6, 1994, a water quality engineer for FKAA responded to the letter from counsel for Petitioner and explained that the "presence of potential cross-connection elements: hoses and hose bibs and piping that cannot be easily traced to her premises necessitate the elimination of the well or the installation of a reduced pressure back-flow preventer directly after each of the Petitioner's water meters." As noted in the Preliminary Statement, on or about August 1, 1994, Petitioner received a seventy two (72) hour shut off notice from FKAA. Counsel for Petitioner requested a hearing on the matter and this proceeding ensued. Petitioner has offered to eliminate any objectionable or concealed piping, but FKAA has rejected that offer. While there is no evidence of any current or past cross-connections between the wells on Petitioner's Property and the FKAA water supply, the evidence established that such a cross-connection could be made intentionally or inadvertently with a minimum amount of effort. Such cross-connection could result in a back-flow into Petitioner's plumbing system and subsequently into FKAA's water supply if the FKAA water pressure is low or if Petitioner's pump is operating at a higher pressure. While the chances of such a black-flow are relatively remote, the consequences could be extremely devastating. FKAA currently serves approximately 34,000 customers and there are over 2,000 reverse flow preventing devices that have been mandated to be installed and inspected pursuant to the FKAA cross-connection control and back- flow prevention program.
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
Findings Of Fact On June 27, 1979, Petitioner applied to the St. Johns River District Office of Respondent for a permit to conduct dredge and fill activities on his property on Johnson Lake near DeLeon Springs, Volusia County, Florida. On July 10, 1979, within thirty days of the filing of the permit application, Respondent requested additional information to complete the permit application, which information was received by Respondent on July 20, 1979. In his permit application, Petitioner seeks to dredge approximately 833 cubic yards of fill material from the bottom of Johnson Lake and deposit that material landward on his property in order to provide waterfront access. Johnson Lake is a small sinkhole lake, with a surface area of approximately 17 acres. The lake consists of two lobes connected by a marshy area traversable by boat. The north lobe of the lake, on which Petitioner's property is located, has a surface area of approximately 7 acres and an average depth of more than two feet throughout the year. The maximum depth of the north lobe of Johnson Lake exceeds thirty feet. Property abutting the shoreline of the north lobe is owned by more than one person. The area which Petitioner proposes to dredge is a heavily vegetated submerged point of land extending from Petitioner's uplands into the waters of the lake. Petitioner proposes to increase the slope of his lake front by relocating materials from the lake bottom landward toward his property, thereby increasing water depth in the lake adjacent to his property by approximately one foot. Petitioner's permit application contains no engineering or other detail demonstrating the manner by which turbidity associated with the project will be controlled either during or after the proposed dredge and fill activities are conducted. In addition, the application contains no data concerning the potential impact of the project on existing water quality in Johnson Lake. However, after receipt of the permit application, Respondent caused a field assessment of the project to be con- ducted. This field assessment revealed that the project site is dominated by a plant community consisting primarily of maidencane, bullrushes and rushes. Each of these species are found in the "submerged lands" vegetative index for fresh waters contained in Rule 17- 4.02(17), Florida Administrative Code. Aquatic vegetation such as that found on Petitioner's property and in the adjoining waters of Johnson Lake aids in both the assimilation of nutrients and filtering of deleterious substances from the waters of the lake and from upland runoff. These types of vegetation in Johnson Lake also provide a habitat for wildlife. Among the fish species present in Johnson Lake are darters, whose presence is indicative of good water quality. Because darters are very oxygen sensitive, it is likely that dissolved oxygen levels in Johnson Lake are in excess of five milligrams per liter. These darters were collected only in marsh areas of the lake, and not in front of areas where the shoreline of Johnson Lake has been previously disturbed by dredging. The existence of good water quality in the lake is due at least in part to the cleansing function of this marsh vegetation which would he removed if the subject permit were granted. Respondent has previously issued permits for dredge and fill activities to other property owners on the north lobe of Johnson Lake. In addition, several other instances of dredging by property owners have occurred on Johnson Lake, at least one of which resulted in Respondent's instituting an enforcement action to cause the affected area to be restored. Approximately 30 percent of the shoreline of the north lobe of Johnson Lake had been disturbed in some fashion at the time of final hearing in this cause. If Petitioner's application is granted, the percentage of shoreline disturbed would increase to approximately 50 percent. Destruction of as much as 20 percent of the littoral zone of a water body may be expected to result in measurable adverse effects on water quality. This adverse effect has been linked to destruction of the nutrient removal capacity of aquatic vegetation. Removal of aquatic vegetation can also result in setting off an algal bloom cycle in the affected water body because of increased nutrient loadings. This algal bloom cycle could, in turn, result in lowering the dissolved oxygen content of the lake, thereby adversely affecting both plant and animal communities. Petitioner has pointed out to the Hearing Officer the earlier case of McPhail v. State of Florida, Department of Environmental Regulation, DOAH Case No. 79-2174, in which a Hearing Officer from the Division of Administrative Hearings recommended the issuance of a dredge and fill permit to a neighbor of Petitioner on the north lobe of Johnson Lake. That recommendation was later adopted by Respondent by issuance of a final order. Petitioner suggests that his application is essentially similar to that of the Petitioner in McPhail, and should, therefore, be granted. However, there is no evidence of record in this proceeding, as there apparently was in McPhaiI, that establishes that no permanent adverse effects will result from the conduct of dredge and fill activities as presently proposed in Petitioner's permit application. In fact, evidence of record in this proceeding clearly establishes that removal of the quantity of aquatic vegetation in the manner proposed by Petitioner could reasonably be expected to have a measurable adverse impact on water quality in Johnson Lake. Further, it is clear that the proposed dredging activity could reasonably be expected to result in short-term turbidity of the water in Johnson Lake, and petitioner in his application has neither attempted to assess the potential impact of turbidity, nor has he proposed any safeguards to limit the effect of that turbidity. The evidence of record in this proceeding clearly establishes that the dredge and fill activity, if conducted as presently proposed, could reasonably be expected to result in lowering the dissolved oxygen content of the water in Johnson Lake, a potential overloading of nutrients in that water body, and short-term and long-term increases in turbidity. It is difficult to address the question of the extent of the potential impact of the proposed activity because nothing submitted by Petitioner either in his permit application or at final hearing in this cause directly addresses this issue in a competent fashion. It should be noted here that the record herein indicates that Petitioner might obtain the desired waterfront access which he seeks by redesigning his project to reduce its size, or, alternatively, by incorporating in his proposal a dock-type structure which would not require such extensive alterations in the littoral zone of Johnson Take. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues in this proceeding.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
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
