Findings Of Fact Petitioner in this matter is Victor T. Cheney, who owns the property in question described as Section 7, south quarter, southeast quarter of northwest quarter of Township 1 South, Range 19 Nest, located near Portland, Walton County, Florida. The property consists of approximately 15 acres and is located 300 to 400 feet south of State Road 20 in Walton County. Respondent is the State of Florida, Department of Environmental Regulation. Several years ago, Petitioner purchased considerable property located on either side of Goodwin Creek, a tributary of Alaqua Creek, which enters into Alaqua Bayou, which in turn empties into Choctawhatchee Bay, which itself enters into the Gulf of Mexico. The property in question was not a part of the original purchase. At some point in the not-too-distant past, Petitioner sold a portion of his property downstream from the instant property to a real estate developer for the purpose of residential subdivision. However, because of the fact that Goodwin Creek, over the years, has been blocked by numerous Beaver dams, the surrounding land has become waterlogged and did not afford reasonable access to the property previously sold for residential subdivision. As a result, Petitioner was forced to purchase the property in question here for the purpose of restoring the proper flow of Goodwin Creek by removal of the dams and draining of the swamp, thereby affording reasonable access to the downstream residential property. Petitioner's position is contained in three major thrusts: the first dealing with trees and forestation, the second dealing with water quality, and the third with the constitutionality of the DER action. The property in question, according to the Petitioner, was initially forestland. However, subsequent to World War II, because of the lumbering-off of what was once virgin forest, as evidenced by surveyors notes dating from 1848 and 1896, beavers were brought in by governmental agencies at Eglin Field during World War II to help control erosion problems. Because the beavers natural enemies, such as wildcats and alligators, have been reduced in number in later years to the point that they are no longer effective in maintaining the beaver population and because beavers proliferate quickly and are hard to control, the beaver population has gotten out of hand. The City of Fort Walton Beach has within recent years engaged in a war with the beavers because of the latters' incursion into the city limits and the destruction they have caused to trees within the city. Beavers, which build dams and flood the land, resulting in a die-off of first the pines and then the tupelos and other hardwoods, are the last attack on the virgin forests of northwest Florida. Other enemies which have taken their toll of the trees during the past years are lumbering, insects, disease and hurricanes. Petitioner wants to reforest the beaver area with loblolly and slash pine. These trees are the dominant forms necessary for a healthy ecosystem, and they provide food and shelter for various birds, some species of which have become extinct because of the loss of trees in the area. Other species are endangered, such as certain types of woodpeckers. Some species of birds need up to 100 acres per family in order to survive. Petitioner wants to plant trees that are productive clients for the local economy. Conifers are the most valuable wood product in this area; and in Petitioner's opinion, the best tree there is for the area in question is the pine tree. Petitioner contends that 20 percent of the land in Walton County, Florida, is in private hands, and the county is poor in forestland. There is too much hardwood, which is of poor quality, and not enough pine, and pine is what he intends to plant in the area if he is permitted to drain it. Turning to the area of water quality, Petitioner urges that the beaver activity has left Goodwin Creek stagnant, without clear headwaters. The area in question contains some SO acre feet of standing water. As a result of beaver activity, the area is plagued with silting, an invasion of saltwater and a putrefaction by sunshine in the summer, and a scum on top of the water. At the bottom of the water is a stinking white globular mass which lies below the freshwater on top. The beaver dams build up swamps behind them, not lakes. Goodwin Creek contains Class III waters which, according to Petitioner, must be maintained in a quality sufficient to sustain body contact (bathing and skiing) . These activities cannot be done in the water as it stands now. If permitted to drain the swamp and clear out the beaver dams, Mr. Cheney claims that the water quality will be improved, contra to the state claim that it would he degraded. He contends that the flushing action resulting from his clearing of the creek will clear and improve the water quality both there and downstream. The predominant fish in the water in the area now is the needlenose gar, which can live in the water as it is now. Those fish are a pest and have no food value. They eat better fish; and their eggs, according to Petitioner, are poisonous. The young gar eat fish that eat mosquito larvae. If the creek is cleared, the gar will clear out and better fish will return. Another purpose of clearing the creek would he to remove the threat to the road and the residential lots downstream because of the constant danger of road washout and the plugging of the drainage culvert by beavers. Removal of the beaver dams would reduce run-over flooding. Petitioner contends his desire is to remove the dams and clear the creek. Yet, the two drawings submitted with his Petition and Amended petition reflect considerably more than merely the clearing of dams. In the first drawing submitted, Petitioner proposed to dig a 30-foot-wide drainage ditch to a depth of 4 feet, running across a portion of the property, using the material excavated from the ditch to build up the area to the north of the ditch and west of the west branch of Goodwin Creek, thereafter planting 15,000 pine trees in the filled area. Petitioner offered no evidence in the form of water quality studies, or forester or reforestation reports from experts in the area. His evidence consisted primarily of newspaper articles, maps, photographs, historic documents and other documents submitted to him by the State. There was no hard evidence to support the allegations of benefit or the contentions as to forestation or water quality as contained in his narrative testimony which included, coincidentally, a rendering of Joyce Kilmer's poem "Trees." On the other hand, Respondent presented the testimony of Clifford S. Rohlke, a dredge and fill field inspector with a background in biology who for 9 years has made biological impact assessments on approximately 1,000 dredge and fill applications throughout the State. Mr. Rohlke was first brought into this case when Petitioner's original application was filed. He went out and looked at the site in section, meeting with Petitioner later, and together they walked the site for a second time. As a result of his inspection, he wrote the biological field report, which outlines the impact of the proposed project. He described the area as rural, floodplain land of the Alaqua Creek basin, which has been subject to numerous fill violations for housing adjacent to the bay and Little Alaqua and Goodwin Creeks. The creek basin in question regularly floods once or twice per year, and much of the land has standing water supporting cypress, tupelo hardwood swamp. The specific site is an inundated hardwood swamp. Overstory vegetation includes black gum, red maple and titi. Submerged and emerging vegetation includes various grasses, moss, water lily, dollar weed and duckweed. The proposed canal and its spoil areas are typically inundated with water In fact, the surface water sheet flows westward around numerous islands and buttresses through various small creek channels intermittently located throughout the wetland area. There is only one piece of upland property in Petitioner's entire parcel which is located to the south of the proposed project area. This particular portion is small and is isolated on three sides by the surrounding basin. As a result, Mr. Rohlke considered the area to be wetlands because of contiguous waters which run up to and flow into Goodwin Creek. There are pools and rivulets throughout the property. He saw three beaver dams, most of which had been breached already; and it is his contention that even if the dams are removed, the water will not dry up naturally because it is historically bona fide wetlands, a low, low area which could not be dried up without a lot of fill. Consequently, this evidence supports a finding that the area in question is in fact a historical wetland, was such before the advent of the beavers, and even the removal of the beaver dams would not radically change the nature of the property to convert it into uplands, thereby taking it outside the jurisdiction of the Respondent. Having thus concluded that the property in question is a historical wetland over which Respondent has jurisdiction, we then turn to the basis for denial by the Respondent of Petitioner's request. The letter of July 12, 1983, reflects as reasons for the intent to deny several factors. One is that he application is incomplete because the Department of Natural Resources has not Issued Its consent to the project. This is correct, though Petitioner contends he was advised by the Department of Natural Resources not to worry about it. A second is that the proposed evacuation and filling will result in violations of state water quality standards and criteria for such Items as bacteriological quality, biological integrity, pH, specific conductives, DO, BOD, nutrients and turbidity. Regarding she issue of bacteriological quality, because of the buildup of muck in standing water areas over the years, the rich muck contains silt, a good media for bacteria, including fecal bacteria, growth. Cutting into this silt will release much of this bacteria into the water downstream from the area of the cut. This in turn will raise the total coliform and fecal coliform bacteria count. In short, disturbing the area by digging would release the bacteria currently trapped in the bog area and the muck. Biological integrity deals with the number of species and the quantity of item per species in the area. Disruption of the natural habitat will vastly alter the biological integrity of this area and other areas downstream. Specifically and primarily, Mr. Rohlke was referring to such species as mayflies, dragonflies, worms, leeches and lesser organisms which would be disturbed and possibly removed, in the case of the lesser organisms, by the removal of the dirt. Not only would removal alter the biological balance, but so would the biological balance of the area where the removed dirt is placed. These minuscule organisms, even if not visible, are extremely important in the breakdown of this material and are important to the food chain:. Eliminating this block would put a big hole in the food chain. It has been the experience of Mr. Rohlke that artificial channels always lower the invertibrate life in the water; and as a result, the water quality goes down. This may not be catastrophic, per se, but there is a cumulative effect which manifests itself in a reduced production of seafood in the area, such as shrimp, oysters, trout and mullet, all of which are important sources of edible seafood. As to the pH, studies show that this pH balance is best when not altered more than one unit. Petitioner's property in question is of a type usually considered alkaline. Dredging would bring in acidic swamp water to mix with the alkaline surrounding water and would result in an alteration of more than one unit. The resulting impact would be adverse to the water quality. As to the question of specific conductives, saltwater has a conductive count of 30,000, freshwater of about 1,000. Stirring up the water by dredging would alter the specific conductives of saltwater and may result in a quick release of freshwater into the saltwater, thereby having a fatal effect on those microorganisms and macroorganisms which are dependent upon saltwater for life. In the area of dissolved oxygen (DO), when organic materials such as are found on the bottom of Petitioner's property are released, there is a strong probability that dissolved oxygen contained in the water will decrease. This would result in the death of fish and other organisms which use oxygen. There are many years of organic buildup on the bottom of the area to be dredged. This area is not a sandy bottom, and release of this organic buildup, with the resultant loss of dissolved oxygen, would be fatal to a large number of species in the ecosystem. Turning to the area of turbidity, which is the suspension of solid matter within the liquid (lack of clarity) the silt that would be stirred us as a result of the dredging, when suspended in the water, tends to suffocate fish and other life forms which breathe through water. This, in conjunction with lowered oxygen levels, creates a combination which is deadly to the many types of organisms. Not only does dredging have an immediate negative short-term impact, but it well may have a long-term impact, as well. The straight sides of a cut canal normally do not support growth which would strain out or hold silt carried by stormwater rushing through the canal. Also, since this is a silty, organic area rather than a clean, sandy bottom, the area is even worse. The turbidity curtain which Petitioner offered to ins tall downstream to curb the turbidity would be, in the opinion of Respondent, ineffective in a stream of flowing water. In considering the validity of Mr. Rohlke's evidence, as outlined above, however, one must consider that he did not take any water samples, did not check for any types of fish, did not take any samples of marine biology, but basically based his opinion and analysis on no more than a walk through the area and his unaided view of the property in question.
Recommendation On the basis of the above, it is RECOMMENDED: That the application of Victor T. Cheney for a permit to dredge a canal across the property as described in the application be denied. RECOMMENDED this 5th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1983. COPIES FURNISHED: Mr. Victor T. Cheney 374 Gardner Drive Fort Walton Beach, Florida 32548 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION VICTOR T. CHENEY, Petitioner, vs. CASE NO. 83-2314 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Mr. Mills owns a 105 acre tract of land on which he raises cattle. This land is directly east of South Bull Pond in Putnam County, Florida. The land which he proposes to fill lies within the landward extent of South Bull Pond. The pond is a natural lake of approximately 350 acres which does not become dry each year. The lake has a maximum average depth of greater than 2 feet throughout the year. Its shoreline is owned by more than one person. South Bull Pond is a Class III water of the State of Florida. Petitioner's proposed project involves the excavation of approximately 5,000 cubic yards of sand and muck from the lake bottom. He plans to place the fill in an area adjacent to the dredge site but within the landward extent of the lake. The area to be excavated is 200 feet long and 50 feet wide. The area to be filled with spoil material is the same size immediately to the east of the dredge area. The excavation will be approximately three feet deep into the lake bottom. Mr. Mills' application indicates that the purpose of the proposed work is to keep his cows out of the bog and also to increase the value of his property. The proposed dredging and filling will result in the permanent elimination of approximately one-half acre of natural vegetation along the lake. This area consists of a natural berm formed by alluvial deposits and a wet bog landward of the berm. There is an opening through the berm which allows the free exchange of waters between the main body of the lake and the bog area. The top elevation of the berm is such that the berm area is submerged for long periods of time. Ordinary high water inundates the berm and passes over it into the bog which is at a lower elevation than the berm. The field appraisal of the proposed site was conducted by Mr. John Hendrix, a Department biologist, on May 5, 1981. The site consists of three areas: the lakeshore, the berm, and the bog. The dominate species along the lakeshore are Saw grass (Cladium jamaicensis), Water Lily (Nymphaea spp.), Pickerelweed (Pontederia lanceolata), and Spatter dock (Nuphar spp.). The dominant fresh water species on the berm are: Saw grass (Cladium jamaicensis), and Arrowhead (Sagittaria spp.). Two transitional fresh water species also grow on the berm: St. John's wort (Hypericum fasciculatum) and Button bush (Cephalanthus occidentalis). The dominant species of the bog, which is landward of the berm, are Water Lily (nymphaea spp.), Water shield (Brasenia schreberi), Royal fern (Osmunda regalis), and Arrowhead (Sagittaria spp.). The lake is presently mesotrophic. It has a large productive vegetative structure primarily along the shoreline. The nutrients are "tied up" or stored in the marshes and peaty sediments of this shoreline and are not freely circulating in the main water body. The shoreline vegetation provides filtration for the main water body. The plants physically entrap sediments and biochemically assimilate them. They also store nutrients which otherwise degrade the water in the lake. The proposed dredging and filling will degrade water quality in two ways: 1) The equipment used for dredging will disrupt the sediments. They will then discharge freely into the water column of the lake and release their stored nutrients. 2) The berm and bog areas will be destroyed so that they can no longer stabilize the shoreline or provide the filtration function. Adverse water quality impacts from the project will be both short and long term. The short terms impacts include expected violations of the following water quality criteria found in Chapter 17-3, Florida Administrative Code: BOD; dissolved oxygen; transparency; biological integrity; turbidity; pH; nuisance species; and both nutrients criteria. The long term impacts will include stimulation of shifting of the natural balance of the lake towards a more eutrophic state and violation of the water quality criteria for nutrients, dissolved oxygen, BOD and transparency. Petitioner wants to fill the bog to prevent injury to his cows. A workable alternative to filling the bog is to erect a fence across the property to exclude the cows from that area. The drawings submitted by Petitioner as part of his application show that the operation of the dredging machinery would be from the berm. During the hearing Petitioner indicated that such machinery would be operating from the lakeshore. This modification would create fewer short term violations of water quality criteria. However, the following criteria would still be violated: BOD, turbidity, nuisance species, biological integrity, dissolved oxygen, transparency and nutrients.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying Petitioner's permit application. DONE AND ENTERED this 14th day of October 1981 in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1981. COPIES FURNISHED: Jimmie L. Mills Route 2, Box 244 Hawthorne, Florida 32640 Silvia Morell Alderman, Esquire Cynthia K. Christen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
Findings Of Fact The land here involved is located at the southern end of the Acme Improvement District. The northeastern portion of the tract is owned by Petitioner Leonard H. Tolley, and comprises some 15 percent of the total acreage of the tract. The remainder of the tract is owned by Petitioner Strazulla Brothers. The entire tract includes Sections 3 and 4, Township 455 Range 41E and a parcel of land in The Township 44 1/2 S Range 41E adjacent to Sections 3 and 4 and comprises some 1400 acres. The Strazulla property was acquired by Warranty Deed from the Trustees, Internal Improvement Trust Fund, by Philip Strazulla and subsequently conveyed to Petitioner. In 1978 real property taxes on the Strazulla property here involved was $17,453.42. The tract is bounded on the west by the L-40 levee and canal, on the north by Acme Improvement District Dike and C-27 Canal; on the east by property owned by Miller American Industries and on the south by property owned by the South Florida Water Management District. By this application Petitioner proposes to place levees with their borrow canals on the east and south sides of the tract and to construct a 240 acre reservoir adjacent to the L-40 levee by erecting a reservoir retention levee some 1400 feet eastward of the L-40 levee. By installing a 100,000 gallon per minute pump station at the southeast corner of the proposed reservoir, the water presently standing on the property could be drained allowing the eastern portion of the tract to be converted to agricultural use and the remainder converted into 2.5 acre residential sites. The 1972 Palm Beach County land use plan recommended the area here involved be zoned Preservation/Conservation, which effectively precluded development of the property. At that time, Strazulla attempted to sell the property or trade it to a governmental agency for property that could be developed, but without success. In 1978, the Palm Beach County Land Use Advisory Board changed the 1972 land use recommendation to Residential Estate to allow a reasonable use of the property. (Exhibit 7). The property abutting Petitioners' property to the north has been drained and thereon is located an orange grove and, west of the orange grove, 5- acre residential homesites. The property to the east is being developed as residential homesites. The property west of the C-40 canal comprises the Loxahatchee National Wildlife Refuge consisting of some 221 square miles of traditional Everglades wetlands. The property to the south is owned by the South Florida Water Management District and is of a character similar to Petitioners' property. Some two to three miles south of Petitioners' property is an east-west canal. In 1900 the property here involved was located in the eastern part of the Florida Everglades and received the sheet flow that characterized the natural Everglades. This historic hydroperiod has been disrupted by levees at Lake Okeechobee and by various drainage and irrigation canals constructed to render the large tracts of land thereby drained suitable for agriculture. In the immediate vicinity of the property, the L-40 levee and canal, which enclose the Loxahatchee National Wildlife Refuge (hereafter referred to as the conservation area) form a barrier to any sheet flow from this property onto the conservation area. This levee and canal bars practically all interchange of waters between Petitioners' property and the conservation area and is in the process of destroying part of the historical eastern boundary of the Everglades. Erection of the proposed levee on the east and south boundaries of the property would effectively stop the drainage now coming to this property from the east and the drainage from this property to the southeast. The South Florida Water Management District (SFWMD) owns a right-of- way to the east of the L-40 levee which is located in the area proposed by Petitioner for its reservoir. Petitioners' application to encroach on this right-of-way with the proposed reservoir was denied by SFWMD. This denial was based on the environmental impact, county zoning regulations (since changed) and the as yet undetermined effect of back pumping into the conservation areas. (Exhibit 17). Specifically, SFWMD Staff Report (Exhibit 17) found the environmental impact of the project will be: This proposed truck farming operation and residential development will destroy approximately 1100 acres of valuable wetland habitat by drainage. The impact on the 240 acres (60 acres of SFWMD right-of-way) of emergent marsh within the proposed reservoir will be determined by the water level management of the impoundment. A drastic change in water depth or inundation period could result in severe alterations of the present wetlands. An additional 50 acres of marsh will be lost due to dredge and fill operations for levee construction. The entire tract is poorly drained and is under water for considerable portions of the year, with the westernmost portion containing the longest periods and greatest depths of standing water. The soil in the eastern portion of the property is predominantly sandy, with a gray sandy loam layer at depths of 20 to 40 inches. The soil in the central portion of the tract is predominantly sandy, with a gray sandy loam layer at depths greater than 40 inches. The soil in the western portion of the tract is sandy, with a black organic surface layer (muck) 8 to 15 inches thick, underlain by gray sandy layers. Vegetation in the property goes from some pine and cypress in the eastern portion to sawgrass marshes in the western portion, with numerous varieties of plants associated with wet soil and marshy areas. During the proposed construction adequate safeguards can be imposed to prevent excess turbidity from entering State waters. This property comprises a large tract of pristine Everglades habitat for both plants and animals, and is of great value to the ecology of the state. In its undeveloped state it provides a buffer zone of up to two miles eastward for the conservation area. Water presently on the property is predominantly rainwater and of better quality than the water in the C-40 or C-27 canals adjacent to the property. Use of the land for agricultural purposes would increase the risk of water quality degradation caused by water runoff carrying fertilizers, herbicides and pesticides into the proposed reservoir and/or perimeter canals. If excess water on the property is pumped into the C-40 or C-27 canals, degradation of those waters could occur. The proposed development was opposed by the Florida Game and Fresh Water Fish Commission, not only because it would remove these fresh water marshes from the ecosystem and take away an essential habitat for birds and aquatic life, but also would remove a surface water retention basin and vegetation filtration of runoff from adjacent uplands. (Exhibit 16). The Permit Application Appraisal Report (Exhibit 15) which recommended denial of the application found the property acts as a buffer between the agricultural lands to the east and the conservation area and development as proposed would remove this buffer; and that water quality standards may be degraded due to agriculture runoff from the developed property being pumped into C-40 canal. Specifics of how runoff from property would be controlled were not obtained by the Environmental Specialist who prepared Exhibit 15. Pumping the surface waters on the property into a reservoir would reduce the diurnal variation in dissolved oxygen levels in the water and thereby improve water quality from that aspect. Water in the reservoir would be of greater depth than presently exists, thereby reducing photosynthesis and its concomitant benefits to the water quality. On the other hand, the greater depths could result in fewer grasses and more open surface water, thereby allowing more aeration of the water by wind action. Herbicides degrade fairly rapidly, and holding them in a reservoir would allow time to degrade. Many pesticides are water insoluble and would settle to the bottom of the reservoir.
Findings Of Fact In September, 1985, Armand J. Houle purchased an 80 acre tract located eight miles east of the Naples toll booth on State Road 84 and approximately two miles north of Alligator Alley. The purpose of buying the property was to mine the limestone rock thereon, through a borrow pit, for the purpose of selling it as road base to the State of Florida Department of Transportation for use in the construction of 1-75 (Alligator Alley extending from Naples to the Florida east coast). While no contract has existed or currently exists, correspondence between the Department of Transportation and counsel for the Petitioner indicates that approximately 800,000 cubic yards of fill will be required in the immediate area and that Petitioner's proposed borrow pit would be the ideal source of this rock. Prior to making the purchase, Mr. Houle's associate, Raymond Chester, contacted both the Department of Transportation concerning the potential use of the rock and representatives of the Department of Environmental Regulation. The response he received from these agencies led him to, believe that a borrow pit might well be permitted and the effort should be pursued. After Mr. Chester and Mr. Houle became partners in the property, they contacted county officials and received zoning and other local permits for the facility. It was only after this, when DER was approached again that the applicants were advised a permit would not be issued. Mr. Houle agrees that, if the permits as requested were granted, he would accept a prohibition against further development of the property after removal of the rock and fill, would allow access to the restored lakes to the public for fishing and recreation; would agree to an appropriate restoration plan for the site; and would ensure compliance with the restoration plan stipulated by the Department. After the property was purchased in late 1985, Mr. Houle approached Daniel W. Brundage, the vice-president of an engineering firm in Naples, with a view toward developing the property in question as a borrow pit. Plans were developed for application for permits with the County and Mr. Brundage, consistent therewith, visited the site on several occasions. He found some vegetation off from the site which could be related to wetlands and contacted a representative of DER with whom he went to the site to look it over. This agency representative, Mr. Beever, concluded that the property was a jurisdictional wetland. Mr. Brundage nonetheless felt confident enough to begin work with the County to secure a permit to convert this land, classified as agricultural, to mining property. Consistent with his efforts, the request for conversion went through a four step process on the way to the County Commission which included approval by (1) the Water Management Advisory Board, (2) the Environmental Advisory Council which recommended same changes accepted by the Petitioner, (3) the Subdivision Review Committee, and (4) the Coastal Area Planning Council. All four subagencies recommended approval and thereafter the County granted its permit for work to begin. Assuming all permits are issued, the property will be developed in two stages. In stage one the site will be cleared of vegetation, and the top soil on Phase I, the western 40 acre parcel, removed and used to construct a berm around the entire perimeter of the site as well as between the two 40 acre parcels. The berm will be entirely within property boundaries and used to isolate any water removed from the active phase within the site so that it does not flow onto adjoining property. The eastern 40 acre tract, (Stage II) will be used for water storage during the excavation of Stage 1. It is anticipated that no water will leave the site during construction of either stage with the exception of extraordinary waterfall during rainfall or hurricane. Before any water is discharged, it will go into a storage configuration so that any sediment therein would settle to the bottom before discharge. The discharged water will be filtered through hay bales or filter screens to avoid any turbidity in the surrounding water. The design of this holding capacity in the filter system is sufficient to accommodate the water of a 25 year storm. As Stage I is completed, Stage II will be opened, and the ground water from Stage II pumped back to Stage I for storage. A similar storage and filtration system will be utilized around Stage I. Primary access to the property will be along the western boundary of 8 Mile Canal, but if this is not allowed, Petitioner proposes to build a single span bridge across the 8 Mile Canal at 40th Street to allow access to the property. After the lime rock has been excavated, the berm will be removed and the side of the property graded to form the banks of a 56 acre lake for recreational purposes. The edge of the lake will be a meandering slope at a ratio of 10:1 which will be assured by survey to be in compliance with the County plan. The lake, which will have a maximum depth of 20 feet, will be excavated at a depth ratio of 2:1 from the edge of the slope to the bottom of the lake. During excavation and prior to restoration, heavy equipment will be used for the removal of the rock such as drag lines, back hoes, motor graders, and bulldozers and an area within the boundaries of the site will be isolated and set up for fueling and maintenance. It will be floored with a membrane to prohibit oil and fuel from getting into the ground as a result of accidental spills. Storage tanks for fuel and oil will be above ground and available for immediate inspection. Waste facilities will be in the form of porta-potties and any water falling in this maintenance area will be drained to a low sump within the membraned area for storage until evaporation or safe removal. In the event of a heavy rainfall, water can be stored and anti-sedimented and cleaned and, if necessary, operations can be temporarily stopped. Mr. Brundage indicates that he has never seen any standing water on the site during his five visits nor has any standing water ever been reported to him. He is aware of no historical or archaeological sites on the property, and at no point would rock be mined within 50 feet of the property line. Dr. Durbin Tabb, a botanist, was retained by the Petitioner to prepare a plan for restoration of the site after mining operations were complete. In preparing his plan, he visited the site on several occasions finding varying plant life, much of which was grasses and rushes. In the north was a pine lowland where he saw palmettos scattered in the grassland as well as a few dwarf cypress trees. He also observed a small cluster of cabbage palms in the southern portion of the eastern tract and noted that the currently existing berm along the eastern boundary of the eastern tract is currently being invaded by exotic plant life including the Brazilian pepper. Dr. Tabb found little evidence of recent surface water accumulation; mollusk residue showed no evidence of recent viability; and he found no crawfish burrows which, if present, would show a water table near the surface. Other visitors to the site, however, did find crawfish burrows. The marsh soil shows that, at some time in the past, it was wet enough to support a soil-forming community. This is no longer' the case according to, Dr. Tabb. The process was stopped by the formulation of the Golden Gate Canal System in the 1960's. The existing marsh does, however', hold sufficient water to support the growth of muhli grass. Dr. Tabb's restoration plan is his best estimate of how the property can be restored to its previous condition by replanting native species found in the area. The program will include littoral zone vegetation to provide shelter and a feeding zone along the water's edge which does not now exist. The plan calls for the saying of the marsh soil. Since neither DER nor the client responded to his plan, when submitted, with any suggestions or corrections, he assumed it was approved. Dr. Tabb, who is also an expert in estuarian biology and zoology, concluded that the area on which this site is located is a very poor habitat for deer and panther. The red cockaded woodpecker has no trees on the property which it specifically desires and the property is a poor or nonexistent habitat for the indigo snake and the Everglades snake. It might, however, constitute a habitat for the Cape Sable seaside sparrow, but this bird has never been seen in this inland area. Panthers cross the area as do bears, but the presence of the excavated lake would be no more hindrance to them in their crossing than would the presence of Alligator Alley and the proposed 1-75. The area with sawgrass and muhli grass, which is dominant throughout the Golden Gate area, is called a "dry prairie" as opposed to a "wet prairie." While some of the same plants exist, it is somewhat different in that there are no viable wetlands wildlife organisms currently existing on the property. In Dr. Tabb's opinion, the property has lost its wetlands characteristics and only the marsh soil's water retention permits the life of the grasses currently existing. Wading birds would use the site later but do not currently utilize the area where excavation would take place. In Dr. Tabb's restoration plan, the slope to the lake would be replanted with saw and muhli grasses down to the litoral zone. From there on to the water, a palette of normal wet grasses would be planted to serve as feeding sites and roasting sites for the birds. In addition, an island planted with willows would be constructed off shore in the lake. Deer currently visit the area. They are not currently supported on the land though Mr. Barnett, of the Game and Fresh Water Fish Commission, indicated that they come out of the pine flats at night to feed on the grasses on the prairie. These deer form a large portion of the food chain for the panther, and Dr. Tabb does not consider it conceivable that the project, replanted and restored, would in any way adversely impact the Florida panther or the birds in issue here. In Dr. Tabb's opinion, it is questionable whether the site comes under the jurisdiction of DER based on the grasses present because he cannot find the water connection to confer jurisdiction. Dr. Tabb has not seen standing water on the site as he has seen on two other sites within the area where DER has granted permits for rock pits. On a site like this, the vegetation changes with the seasons. This site is not now connected to the canal along Alligator Alley by vegetation. There may have been a vegetation connection in the past, but as one goes up toward the site from the canal, the grass changes gradually from low pineland grasses found on higher ground to the lower sawgrasses found on the site in question. In Dr. Tabb's opinion, if Mr. Houle's property is to be considered a wetland, it is a transitional wetland. Turning to the issue of loss of habitat, if one assumes that portion of the property that will be converted to a lake will be denied to the panther, this is not the case for the deer which, in this area, is considered to be aquatic. Any denial of the lake area would constitute a very small negative impact compared to what is going on in other areas of Collier County. Admitting that there is a requirement to consider the cumulative impact of a project, in Dr. Tabb's opinion, this project would constitute a "may impact" situation. There is no definitive evidence as to what would happen, and he would be more concerned if the area were now a good panther habitat. It is not, however, and in fact it is no more than a habitat for the grasses which grow there. As to the wetlands issue, the only sign of exotic plant invasion is in the disturbed area around the canal which was installed approximately 18 years ago. The absence of these exotic species is, in Dr. Tabb's opinion, a clear indication that there is no flowing or standing water since the site is too dry for the germination of the seeds. There will be some removal of the biomass by the excavation of the lake. This biomass, consisting of grass primarily, is consumed by fire every year or so and insects eat it as well. Admittedly, some of the biomass is being eaten by animals of some nature and that which is converted to a lake will be removed. There is a trade-off, however. Dr. Martin Roessler, a marine biologist, prepared a report, on the water quality of the adjacent 8 Mile Canal, and other water bodies in the area. In preparation of his report, he took water samples in the areas in question, read literature on the water quality in the area, and looked at water quality data provided by U.S. government agencies and private companies. On the several visits he made to the site, he has not seen any surface water. The first time he could get water only in the adjacent canal, and he also got some water from the land borings done by Dr. Missimer on the site. Dr. Roessler is familiar with State standards for water quality and, in his opinion, the turbidity standards would not be disturbed because there was no water on the ground to be sheet flow. All water was at least three feet underground and, in addition, Petitioner has agreed to properly sod or otherwise treat the berms he will build to prevent erosion and any resultant turbidity either off-site or in the 8 Mile Canal. Dr. Roessler also does not believe the project would violate the oil and grease standards. There is nothing inherent in the mining process to bring into play oils and greases except for the possible problem in refueling and maintenance operations. In that regard, Petitioner has shown how he will provide against that by placing a membrane to prevent any oil, grease or other contaminant from getting into the ground. This area does not contain the organic mulch which produces natural oils and greases. The water near the surface of the lake will contain sufficient dissolved oxygen to meet State standards without problem. In the summer months when the dissolved oxygen count is low, generally, the lake bottom water may not meet State standards, but that happens quite frequently, naturally, across the entire area. Dr. Roessler believes that the dissolved oxygen requirements of 2.5 at the surface and .5 at the bottom will most likely be met in the lake created by this project. Concerning the biochemical oxygen demand (BOD), he concludes the operation in the quarry will not artificially decrease the available oxygen below the required amount. The BOD demand in this area would not be threatened by the lake. As to the iron standard and other toxic substances, Dr. Roessler does not believe that the project will create a violation of the standard nor will any runoff increase dissolved iron in adjacent waters. Hydrogen sulfide and pharasulfide standards will similarly not be violated. Sulfides are found only in trace amounts, if at all, in natural waters. In deep limestone lakes the chemical structure is not conducive to the formation of the acidic compounds. In short, Dr. Roessler believes the water in the mine would be very similar to that found in other rock quarries in the area. These lakes are a dominant portion of the recreational fresh water fishing availability. This instant lake also will, in time, upon development of the food chain for the fish, become an equivalent fishing habitat. Dr. Roessler concurs with Dr. Tabb regarding the flora on the site, which he observed himself. This site is 15 to 18 miles from marine or estuarian waters and to reach them one would have to go down a series of canals and past a saline dam to the coast. Any runoff from the site in question would have, if any, a minuscule effect on marine waters. This site was originally a wet prairie which was drained by the Golden Gate Canal System. As such it is a relatively poor habitat for life forms generally found in cypress wetlands. Creation of this lake will, in the opinion of Dr. Roessler, enhance the game, fish, and recreational activity of the area. It would be a benefit to the animal population to have a water source for drinking during drought. There would be no adverse effect on public health, safety or welfare. Turning to the major issue of water, Dr. Thomas Missimer, a hydrogeologist specializing in ground water, visited the site, examining the canal on the east side, and the soils and rocks exposed. He took soil borings and examined the site hydrology to see what fluctuations occurred in the water levels due to rainfall. Mr. Missimer, took numerous readings from September 18 through November 5, 1987 during a period of wet weather including a tropical storm. He carefully compared the site geology to other sites he had studied and compared the flow of water through the soil. He compiled existing information on chemistry in the streams in the area to see what the natural conditions were. He looked at other man-made lakes in the area which were previously borrow pits. As a result of his studies, he concluded that the groundwater level throughout the entire period never got higher than three feet below the land's surface and often was five feet below. During the previous July through September, 34 inches of rain fell in the area which was, in his opinion, average to above average. There is some evidence, however, to indicate that rainfall in the area was approximately 33 percent below average during the period. Nonetheless, Mr. Missimer took a measurement the day after a tropical storm had deposited three inches of water on the land. The water level at that time was still three feet below land level, and there was no standing water. Both the three foot and the five foot level are well below the top of the berm sloped at 10:1 as is proposed in the restoration plan submitted by Dr. Tabb. This site has, from a hydrological standpoint, been greatly affected by the installation, of the 8 Mile Canal and the canal system to the north. As, a result of this activity, standing water has not existed for many, years since the dredging of those canals. If de-watering is a necessary portion of the mining plan, any waters removed thereby would be retained in the impoundment area described by Mr. Brundage and switched back and forth. As proposed, the plan can completely avoid any impact to off-site property by water runoff. Construction of the pit and the lowering of the water level thereby will not have a major impact on the groundwater in the surrounding areas. Any effect would taper off as the distance increased from the site and would be of little significance. This proposal would also have little, if any, impact on groundwater quality. In Mr. Missimer's opinion, water quality is currently good and will stay good. This type of rock mine is very common in the area incident to construction. Some have been used as a source of potable water by The City of Naples; by Deltona Utility Company for Marco Island; and the south area of the County. These resources are still being used. There is little difference between those currently being used as potable water sources and the proposed lake here. Mr. Missimer also indicates the project will have little impact on the sheet flow of water. Sheet flow no longer exists here because of the canals and roads already existing. If there were a sheet flow created by a very heavy rain, this pit would have no impact on it. The water level in the lake will be approximately the same as exists in the ground currently and in the 8 Mile Canal. There should be no shoaling in the canal due to the project, and the presently existing spoil bank on the west side of the canal already prevents flow into the, canal from this land. If this pit is properly constituted and maintained, and if proper mining procedures are followed there should be no effect on the 8 Mile Canal to the east or the Alligator Alley Canal to the south. There is no surface water connection currently existing between this site and either canal. As to the issue of dissolved oxygen, the currently existing groundwater on the site and in the surrounding area has little or no dissolved oxygen in it. Water coming into the lake will be groundwater low in dissolved oxygen, which is identical to the water which currently goes into the canal system. The canal gets very little oxygen from the wind because it is so narrow. The lakes to be constructed, on the other hand, will get a large amount of oxygen from the 56 acres of water exposed to the open air. Consequently, construction of the lakes would increase the dissolved oxygen content of the water in the area, at least in the lakes, down to a level of several feet. This is a positive factor. Mr. Missimer recognizes, however, that during the dry seasons, when the lake is fed solely by groundwater generally low in dissolved oxygen, the lake water which has been converted to surface water may fail to meet the Department's surface water standards for dissolved oxygen. Warmer weather generally results in lower dissolved oxygen readings and, admittedly, Respondent's readings were taken in December when the dissolved oxygen levels are higher. As a result, the comparative samples which were taken in December are not necessarily indicative of what will be the situation in the lake, year- round. Respondent's witnesses present a more dismal picture of the effect of Petitioner's proposed project. Mr. Bickner, an Environmental Supervisor with DER's Bureau of Permits and himself an expert in water quality, zoology, and ecosystem biology, first became involved with this project while the permit request was being processed in late 1986. This application was a standard form project because of the quantity of material to be excavated. As a part of his processing, Mr. Bickner requested evaluations of the project from other agencies and divisions within DER and, on the basis of his personal evaluation and the recommendations he received, concluded that the application was not permittable. He recommended it be denied. Mr. Bickner considered Petitioner's application under the provisions of Chapter 403.918, Florida Statutes, which requires a two step evaluation. In the first step, the project must be determined to meet water quality standards. If it does, as a second stage, the project must be determined not to be contrary to the public interest. The major water quality standard in issue here was that of dissolved oxygen along with that concerning BOD and other deleterious substances. The water body involved was classified as a Class III Water under the provisions of Rule 17-3.121, Florida Administrative Code, since it was designed to be a recreational, fish and wildlife habitat. The standards contained in the statute and the rule relate to surface water as opposed to groundwater and, as to the public interest question, Chapter 403 provides a list of seven factors which must be evaluated. In this determination the agency has wide latitude and no one factor is controlling. In evaluation, agency personnel try to look at the project overall. Specifically, the project cannot cause or contribute to an existing water quality violation. In evaluation, agency personnel do not look at the project by itself. They must keep in mind that other projects exist or are proposed for the area. This is known as the cumulative impact of the project which is provided for in Section 403.919, Florida Statutes. As to the variance requested, this is also provided for by statute. The criteria require that the petition be based on some specific ground. In the instant case, the ground utilized by Petitioner was that there was no alternative to the dissolved oxygen level proposed. Granting of a variance is totally within the discretion of the Department even if Petitioner can show grounds therefor. Mr. Bickner was at the site only once. He approached from the south. At the low end of the approach was a mixture of wetlands and upland vegetation, but as he got toward the site the upland species dropped off and only the wetland species only remained. These were primarily sawgrass, cattails, and the like. He was satisfied that there was no obvious break in jurisdiction, and the testimony of Mr. Beever confirmed that jurisdiction over the site was gained through the wetlands character of the property from the site down to the Alligator Alley Canal, which is considered a water of the state. The site consists primarily of sawgrass and muhli grass with minor amounts of other grasses. The site seems to rise toward the 8 Mile Canal where there is an invasion of Brazilian peppers and other exotic species. Mr. Bickner was looking for upland species and found only one specimen of one species, a few of another, and no invasion of slash pine on the site at all. As a result, he concluded that the site was not an upland site. There was no standing water on the site at the time Mr. Bickner visited it, but the soil was wet to the surface. In addition, there was a large number of recently dead shells in low spots which had held water. There were some tracks of a large animal and a large number of smaller animal tracks and scats (scats are animal droppings). He also saw some birds which were too far away to identify and observed what he thought were crayfish tunnels near the cypress trees. Mr. Bickner found evidence of dried periphyton widely scattered over the site. Periphyton, an algae which attaches itself to other plants and which in times of inundation, forms sheets across the water connecting one plant to another, is a sign of previous inundation. The other plants on the site were not showing water deprivation stress, and there was no evidence of upland species invasion. All of this leads Mr. Bickner to conclude that the area has plenty of water and this opinion was enhanced by the lushness of the plants' growth. This, along with the high diversity of plant life, indicated to him a healthy ecosystem. To Mr. Bikner, the fact that the area was not currently inundated is not significant. In this particular area there are wet and dry seasons and, even in the dry season such as existed at the time of his visit, the soil was wet. The signs he saw indicated to him there has to be standing water on the site at some time. His visit was in January, which is well within the dry season. As to water quality, Mr. Bickner does not believe that the water quality standards will not be violated. In fact, by the nature of the project, Petitioner has, in Mr. Bickner's opinion, assured that it will be violated. A 20 foot deep pit must, in his opinion, result in low levels of dissolved oxygen below standards. Any water below seven foot in depth has little dissolved oxygen. Most dissolved oxygen is in the surface water, and there is little exchange between deep and surface waters. As a result, he concludes that the groundwater has low dissolved oxygen, a fact confirmed by Mr. Missimer. Dissolved oxygen is the only source of oxygen for fish and aquatic animals. Without dissolved oxygen, the fish die. There are currently no fish on the property. Mr. Bickner was also concerned with the biochemical oxygen demand which would further reduce the oxygen levels in the water. He was further concerned with the hydrogen sulfide levels coming from deterioration of plant material in the bottom of the pit, and iron which he found to be already in the groundwater. Mr. Bickner contends that during construction of the pit petro- chemicals will be introduced into the water, and that during the construction period the on-site water will have increased turbidity which will most likely be transmitted off-site as the pit is de-watered. There are management procedures which can reduce the risk, but none can avoid it entirely. Mr. Bickner is satisfied that the water quality standards will not be met. It is so found. Mr. Bickner also evaluated the property from the public interest standpoint, and in that regard he is satisfied there is a substantial potential for damage to adjacent properties by de-watering. Based on his experience and observation of other projects, he is satisfied there is no way to keep people employed on the site from using adjacent property for parking and vehicle maintenance. The witness believes that the 56 acres of habitat removed by the lake, and the remaining acres, which will be replanted, will be permanently impacted. While he admits that the property as it currently exists, may not be a prime habitat for the panther, there is some evidence which indicates panthers do cross it. He is concerned that the applicants submission here does not sufficiently answer all the questions as to impact on the public interest. The mechanics of the maintenance yard, soil storage and other potential areas of trauma are not explained satisfactorily, and Mr. Bickner does not see how all that is proposed can fit on the site. As a result, in his opinion, there must be some off-site impact. As to cumulative impact, since the valuable rock does not lie only under Petitioner's property, owners of the surrounding property may want to mine their properties as Petitioner proposes to do. If that happens, Mr. Bickner cannot explain how the Department can deny these subsequent applications. If the current application is permitted, taken together with the others, there would be a serious effect on the panther population. This opinion is not supported by evidence, however. If the public interest test is the only basis for disqualification of the project, (here the water quality test is also not met) a permit can still be granted if the applicant agrees to take appropriate mitigation steps at the site. Mr. Bickner is of the opinion that the applicant's mitigation plan to create the 100 foot wide shelf around the lake is not the same type of system which currently exists, will not fulfill the same function as the present property, and is not sufficiently large to replace what is being lost. One basis for granting the variance suggested by the Petitioner was the public interest, (the material was to be used for a public road), and the other was that there was no alternative way to get the material. While it is possible the rock would be used for public road, Mr. Bickner was concerned no assurances were given by the Petitioner that it would be. No contract has been signed yet, and Mr. Bickner is not satisfied that the letter from the Department of Transportation, indicating the rock there would suit its purpose, is sufficient indication that a contract would be signed. There is a possibility of making the pit shallower, which would permit the dissolved oxygen content of the lake water to meet state standards, but even if that problem were solved, Mr. Bickner is not satisfied that Petitioner has met the public interest test. Respondent has granted three permits and a variance to the Department of Transportation to build a portion of I-75 across Alligator Alley in Collier County. These permits are for the dredging of canals parallel to the roadway and to develop a borrow lake of 73.1 acres to be excavated to a depth of from 6 to 9.7 feet. The variance in question applies to all three projects and relates to the dissolved oxygen level. The DOT variance was applied for on the basis that no practical means for avoidance of the pollution existed. The Department of Transportation did not request a variance for BOD or for toxic and deleterious substances or iron. Mr. Bickner, admitted that these permitted projects would possibly have the same problem of oils and greases as he foresees with Petitioner's project. Nonetheless, he concludes that Petitioner's project should not be permitted, even though the Alligator Alley canals are already below standards, because to do so would contribute to a currently existing violation. Mr. James Beever, an Environmental Specialist with the Department of, Environmental Regulation, visited the site on several occasions, both on the ground and from the air. He observed much of the same flora and fauna observed by the other visitors who testified in this case and took color photographs of the area which portray the character of the property. All of the plants he discovered on the site are on the DER jurisdictional list and, on at least one occasion, from the air, he saw standing water on the site. In his opinion, the property is a fresh water wet prairie system which is admittedly drier than it should be. The plants he saw on the site indicate the jurisdiction of DER if there is a connection to other waters of the state, and in Mr. Beever's opinion, there is connection through the flow of sheet water south from the site to the I-75 (Alligator Alley) canal; then, east to the 8 Mile Canal; then south to the Fuqua Union Canal which empties southwest to the Gulf of Mexico. In his opinion, therefore, this is definitely jurisdictional land, and it is so found. The site supports an underground system of roots as well as the upper portion of the, plants existing thereon. He observed periphyton and many other animal tracks and scats. He also saw signs of regular inundation such as numerous snail shells, and he is satisfied there is no indication of a change in the area from the wetlands to an upland area. Admittedly, the area has been dry for a while. Even after Hurricane Floyd in 1987, there was no standing water. The site is, in his opinion, definitely productive, however. The vegetation existing thereon stabilizes the soil and provides food for snails, insects and crayfish which are on the bottom of the foodchain for other life forms on the property. The grasses provide a habitat for animals such as cotton rats, roosts for birds, pollen for insects, all which, themselves, become food for the larger animals. This wetland is a part of a large wetland prairie system and part of the Fuqua Union drainage basin, and acts as a filter for the water system for the area. According to Mr. Beever, most borrow pits like this are located on uplands which then provide rain water lakes. The instant pit, however, is in a wetlands area and if built, he believes, will engender violations during the mining operation. Groundwater coming in will contain iron and hydrogen sulfide which will combine with the dissolved oxygen in the water and further deplete the already low oxygen levels. All of this will constitute a violation of the rules regarding waters of the state since the waters within the pit would fall within that category. Mr. Beever is also concerned with the `bridge over the 8 Mile Canal and the turbidity connected with its construction and removal. In substance, Mr. Beever is convinced that construction of the project will create violations of the water quality standards for the area. As to the public interest, the wetlands character of the site will be completely lost. The vegetation will be removed, and the animals utilizing it will either leave or be destroyed. After, construction, some natural healing will occur, but a long-term maintenance program will be required to provide even different functions for the land than those which currently exist. In that regard, Mr. Beever is convinced that the applicant's proposed restoration plan is not acceptable. It will not replace the lost functions of the site; it will replace the species removed with a different ecosystem; it will provide a habitat for different species of animals and birds; it will adversely affect the shoaling and erosion in the lake itself (this is found to be without merit); it will have some adverse effect on the property of others; and will have an adverse cumulative impact on the area. The habitat will not be used any more by endangered species such as the wood stork and the panther. Even assuming, arguendo, the plans were suitable, in Mr. Beever's opinion, the project would not work here because of the lack of information on what the actual water level of the lake will be. The plant species proposed may not remain because of possible changes in water level in the lake. In addition, the marl berms will dry out over the three years of their life while the pit is being worked, and form a location for a lot of invasive upland plants. Much of Mr. Beever's concern is shared by Mr. Barnett, of the Game and Fresh Water Fish Commission, who indicated that birds now frequently use the area for nesting and feeding because of its wetlands character. Endangered species such as the Florida panther cross it from time to time as does the Florida black bear. Human encroachment reduces the panther's territory and reduces the area for forage of deer, which are the principal food of the panther. The bigger issue, however, is the cumulative impact. The 80 acres is not so important by itself, but to permit its removal would set a precedent for future encroachment by others. Mr. Barnett's experience is that restoration plans are quite often not successful. Even the successful ones, however, replace the removed system with a different system, and the species which now use the property would find it much less desirable as changed. Specifically, the bear, the deer, and the panther would find it unusable as proposed. At the present time, the deer spend their days in the pines forest to the north of the property, coming out onto the area, in question only at night to feed. It is during the night that the panther stalks. As presently constituted, this property is of no benefit to the wood stork or the red cockaded woodpecker. The Cape Sable sparrow could use it but does not. The development of Golden Gate Estates to the north and east and south of the property has a two pronged effect on the area in question. The southern portion of Golden Gate Estates has been abandoned, but the central and northern portions will be developed. On the one hand, it is likely that the increased population to the north and east will make the Petitioner's property less desirable and make access to it more difficult for the wildlife currently utilizing it. On the other hand, removal of the northern and central portions of Golden Gate from usable area for the panther and other species make it more important that Petitioner's area, which Barnett claims is not likely to be developed, remain as an animal habitat to offset the encroachment of the development area. There is no evidence to support this prediction of non- development, however. History tends to indicate otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner be issued a dredge and fill permit as requested and a variance to the state water quality standards as identified in the request. RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1469 AND 87-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 2. Accepted. 3 - 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted. 9 - 14. Accepted and incorporated herein. 15. Accepted. 16 - 17. Accepted and incorporated herein. 18 - 19. Accepted and incorporated herein. 20. Accepted. 21 - 23. Accepted and incorporated herein. 24. Not a Finding of Fact. 25 - 26. Accepted and incorporated herein. 27 - 28. Accepted and incorporated herein, except for finding it is likely that more wildlife will use the site after construction. Rejected as speculation. 29 - 30. Accepted and incorporated herein. 31 - 33. Accepted and incorporated herein. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36 - 38. Accepted and incorporated herein. 39. Accepted and incorporated herein. 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42. Accepted. 43 - 44. Rejected as contra to the evidence. Accepted. Accepted and incorporated herein. For the Respondent 1 - 3. Accepted and incorporated herein. 4 - 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. 21. Accepted and incorporated-herein. 22 - 25. Accepted and incorporated herein. 26 - 33. Accepted and incorporated herein. 34 - 35. Accepted and incorporated herein. 36. Rejected as contra to evidence presented. 37 - 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42 - 43. Rejected. 44. Accepted and incorporated herein. 45 - 47. Accepted and incorporated herein. 48 - 60. Accepted and incorporated herein. Rejected. Accepted in part - (temporary). Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Unproven. Accepted. Accepted and incorporated herein. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert Routa, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Richard Grosso, 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
The Issue The issue is whether Respondent, Dames Point Workboats, LLC, is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 20, 2018, and subsequently amended on December 11, 2018.
Findings Of Fact The Parties Petitioner City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. The City initiated this proceeding by filing its Verified Petition for Formal Administrative Hearing ("Petition") with DEP on August 17, 2018. Respondent Workboats is the applicant for the Project. Its business address is 5118 Heckscher Drive, Jacksonville, Florida 32226. Workboats' owner, Shafnacker, owns the property located upland of the sovereignty submerged lands on which the Project is proposed to be constructed and operated. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to those statutes. Pursuant to that authority, DEP determines whether to issue or deny applications for environmental resource permits. Pursuant to section 253.002, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and in that capacity, reviews and determines whether to issue or deny applications for sovereignty submerged lands leases. The Back Channel and Vicinity of the Project The Project is proposed to be located in the "Back Channel" area of the St. Johns River, directly across from Blount Island. The Back Channel, as a part of the St. Johns River, is classified as a Class III waterbody. It is not designated an Outstanding Florida Water, is not located within an Aquatic Preserve, and is not designated for Shellfish Propagation or Harvesting. The Back Channel is configured in the shape of an inverted "U" and runs between Blount Island and Heckscher Drive, from the southeast corner of Blount Island to the bridges located on the northwest side of Blount Island. It constitutes a portion of the historic main channel of the St. Johns River and was used for all vessel navigation in the river until the Dames Point Cut was dredged through a peninsula to the south, creating Blount Island and a new straight channel to the Atlantic Ocean. Most vessels, including large ships, use the Dames Point Cut for ingress into and egress from the St. Johns River. However, the Back Channel remains navigable and is used for recreational activities and some commercial and industrial navigation. A mix of residential, commercial, and industrial and land uses is located on the north shore of the Back Channel in the vicinity of the Project. These uses consist of approximately 90 single-family residences having docks, three fish camps/recreational marinas, two restaurants, and docking structures used for mooring inshore shrimping vessels. A docking facility owned by M & M Shrimp and used for mooring shrimping vessels is located on the Back Channel immediately to the west of the Project site. A residence owned by Wood is located on the Back Channel immediately east of the Project site. Four other residences are located immediately east of Wood's residence, and back up to the Back Channel. Most of the shoreline on which these residences are located consists of riprap; however, a small patch of salt marsh borders the shoreline on Wood's residential parcel. Although Blount Island is a heavy industrial port, its northern shoreline on the Back Channel, across from the proposed Project site, consists of relatively undisturbed salt marsh and trees. The northeastern shoreline of the Back Channel generally consists of salt marsh and riprap, with docks constructed along the shoreline. Two bridges connect Blount Island to the mainland a short distance west of the proposed Project. These bridges each have a clearance of approximately ten feet, so they cannot be cleared by large vessels. As a practical matter, this has the effect of limiting the size of vessels that use the Back Channel in the vicinity of the Project. The Back Channel west of the bridges to the southwestern tip of Blount Island is fronted by heavy industrial uses, and numerous multi-family residential and industrial docking facilities are located in this area. A slow speed, minimum wake zone for boat operations extends 300 feet out into the Back Channel from both the north and south shorelines. The Back Channel is approximately 1,340 feet wide at the point at which the Project is proposed to be constructed. The Proposed Project The proposed Project will be constructed and operated4/ as a commercial tugboat/work boats mooring and loading/ offloading facility. The Project is proposed to be constructed and operated on sovereignty submerged lands5/ and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and sovereignty submerged lands lease are required for construction and operation of the Project.6/ The Project will be located waterward of the mean high water line on sovereignty submerged lands adjacent to four upland waterfront parcels that are owned by Shafnacker. These lots are: Lot 6 (5100 Heckscher Drive, RE 159971 0000); Lot 7 (5110 Heckscher Drive, RE 159972 0000); Lot 8 (5118 Heckscher Drive, RE 159973 0000); and Lot 9 (5120 Heckscher Drive, RE 159974 0000). Collectively, these lots have approximately 425 feet of linear shoreline, as measured at the mean high water line, bordering the Back Channel. This shoreline is comprised of salt marsh and riprap. A substantial portion of lots 6, 7, and 8 consists of salt marsh wetlands. No structures are proposed to be constructed on Lot 6. The salt marsh areas on lots 7 and 8 are traversed by existing pile-supported piers/access docks. To the extent they are replaced, such replacement will be by like-for- like structures, so there will be no new impact to the salt marsh wetlands on these lots. Most of Lot 9 consists of upland, some of which is authorized to be refilled under the Consolidated Authorization. A small wetland area consisting of approximately 18 square feet of salt marsh will be crossed by a new dock, but will not be filled or otherwise physically impacted. Dock A is proposed to be located on sovereignty submerged lands waterward of Lot 7, and will consist of a 15.4-foot-long by 8-foot-wide extension added to the waterward end of an existing 150.8-foot-long by 8-foot-wide wooden dock, plus a 4-foot-long gangway attached to the waterward end of the extension, which will connect to a 100-foot-long by 9.5-foot wide concrete floating dock. Dock B is proposed to be located on sovereignty submerged lands waterward of Lot 8, and will consist of a 40-foot-long by 10.3-foot-wide concrete floating dock with an 18-foot-long by 6-foot-wide platform, and a 4-foot-long gangway attached to an existing 125.2-foot-long by 5-foot-wide wooden dock. Dock C is proposed to be located on Lot 9, and will consist of a new inverted-L-shaped dock consisting of a 71-foot- long by four-foot wide pile-supported finger dock extending perpendicular to the shoreline into the Lease area, and a 26-foot long by 4-foot-wide dock running roughly parallel to the shoreline that will be constructed outside of the Lease area. Four wooden pilings also are proposed to be installed waterward of Lot 9. Three of these pilings will be located along the eastern boundary of the Lease, and the piling closest to the shoreline of Lot 9 will be located outside of the Lease area. All of these pilings will be set back 25 feet from Workboats' eastern riparian rights line. The newly constructed piling-supported dock additions to docks A and B, and new Dock C, will be elevated four feet above the marsh and will be constructed by hand-laying planks from the shoreline outward into the water, using the previously- laid planks as support while laying the new planks. Three three-pile mooring dolphins also are proposed as part of the Project. They will be installed within the Lease area, set back 38 feet from the southern boundary. No dredging is proposed or authorized for the Project. The Lease will be issued for a term of ten years and will preempt approximately 49,746 square feet of sovereignty submerged lands. The western boundary of the Lease is located 25 feet east of the upland property's western riparian rights line, and the eastern boundary of the Lease is located 25 feet west of the upland property's eastern riparian rights line. With the exception of a portion of Dock C and one wood piling that will be constructed on submerged land owned by Shafnacker,7/ all other structures proposed as part of the Project will be constructed within the boundaries of the Lease, and all vessel mooring and over-water operational activities authorized as part of the Project will occur within the Lease area. The Consolidated Authorization authorizes the placement of approximately 3,500 square feet of fill landward of the mean high water line and the jurisdictional wetland line, to replace historic fill eroded by hurricanes in 2017. Additionally, as a condition of the Consolidated Authorization, Workboats is required to restore approximately 250 square feet of salt marsh cord grass waterward of the mean high water line on Lot 9 as corrective action for unauthorized filling/destruction of salt marsh wetlands. As noted above, when constructed, the Project will operate as a tugboat/work boats mooring and loading/unloading facility. Workboats owns a fleet of approximately 40 vessels, comprised of barges, tow/push boats, and work boats, which are used to provide a range of marine services to third parties, including the transport/delivery of food and other supplies; artificial reef placement; marine demolition; and pile driving. These vessels will be moored at the docks, mooring dolphins, and mooring piles comprising the Project.8/ Of these 40 vessels, 28 are barges that range from ten to 130 feet in length, and have drafts ranging from 1.5 to 7.5 feet deep. The remaining 12 vessels are boats that range from 14 to 46.2 feet in length, and have drafts ranging from one foot to 6.8 feet deep. The water depths within the Lease area range from one tenth of one foot immediately adjacent to the shoreline, to between 39.5 and 43.5 feet deep at mean low water at the southern boundary of the Lease. Only one or two of the smaller boats in Workboats' fleet have drafts that are shallow enough to enable them to moor on the shoreward sides of Docks A and B. In any event, all vessels must moor in areas within the Lease area having depths at mean low water sufficient to ensure that they do not come into contact with submerged resources. To that end, a condition is included in the Consolidated Authorization requiring a minimum 12-inch clearance between the deepest draft of a vessel with the motor in the "down" position and the top of submerged resources at mean low water. The parties stipulated, and Shafnacker testified, that with the exception of the 32-foot-long Marlin Barge and the 10- foot-long Galligan barges, all other barges in Workboats' fleet will moor at the three-pile dolphins near the southern boundary of the Lease. Some barges will be anchored to the substrate by spuds, and the condition requiring 12 inches of clearance between the vessel bottom and the top of submerged resources would not apply to the spuds themselves. The parties stipulated, and Shafnacker testified, that Workboats will only load vessels from Dock B, which is appurtenant to Lot 8, and that the only equipment that will be used to load vessels will be equipment small and light enough to traverse Dock B——specifically, a Takeuchi mini-excavator, small forklift, or similarly-sized equipment. These limitations regarding the loading of vessels within the Lease area are not currently included as conditions of the Consolidated Authorization. Based on the parties' stipulation and competent substantial evidence in the record, conditions should be added to the Consolidated Authorization expressly limiting the loading of vessels in the Lease area to occurring only on Dock B, and limiting the type of equipment used for vessel loading and unloading to forklifts, mini-excavators, or similar light equipment. Shafnacker testified that the only other work that may be performed within the Lease area would consist of certain minor maintenance activities on Workboats' vessels; these minor repair activities include non-routine paint touchups and handrail painting, minor cable and winch repairs, and minor steel-rod (non-lead) welding. DEP Review and Approval of the Project Workboats filed a Joint Application for Individual Environmental Resource Permit/Authorization to Use State-Owned Submerged Lands/Federal Dredge and Fill Permit ("Application") on or about June 15, 2018. The Application was determined to be complete. DEP staff reviewed the Application and determined that the Project, as proposed, met the applicable statutory standards and rule requirements for issuance of the Consolidated Authorization. DEP issued the Consolidated Notice of Intent on or about July 20, 2018, proposing to issue the environmental resource permit and Lease for the Project. The Application, Consolidated Notice of Intent, and Consolidated Authorization were admitted into evidence at the final hearing. Compliance with Rule 62-330.301 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it must provide reasonable assurance9/ that the Project meets the requirements of rule 62-330.301.10/ Water Quantity, Storage, Conveyance, and Flooding Impacts The entire Project, as proposed, will be constructed waterward of the mean high water line and will consist of mooring piles, piling-supported docks, and floating docks. These structures will not affect, impound, store, divert, or impede the amount or flow of surface water. The evidence demonstrated that the Project, if constructed and operated as proposed, will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Impacts to Value of Functions Provided to Fish, Wildlife, Listed Species, and Habitat Two types of habitat exist at the Project site: salt marsh and submerged benthic habitat. The evidence established that the salt marsh at the Project site is healthy, high-quality, high-functioning salt marsh habitat. Among the functions the salt marsh provides are preservation and improvement of water quality by filtering runoff, serving as a nursery for fish species, preventing shoreline erosion, and forming the base of the estuarine food chain. The salt marsh, in combination with existing riprap at the edge of the salt marsh, forms a "living shoreline" at the Project site that helps protect the shoreline from erosion and scouring due to wave action. This living shoreline is not being removed or otherwise affected, and will remain in place at the Project site. The submerged benthic sediment at the Project site consists of high organic silts and a sand base. The evidence established that the benthic sediment provides habitat for infauna, such as polychaete worms; and for epifauna, such as shrimp, crabs, and mollusks. No submerged aquatic vegetation or oyster bars were found at the Project site. Docks A and B consist of extensions that will be added to two existing docks that previously were constructed through the salt marsh. These extensions will be constructed four feet above the marsh floor to reduce shading, using minimally- impactful construction techniques, discussed above, to help avoid and minimize construction impacts to the marsh. The floating components of docks A and B will not have any impact on the salt marsh habitat. Dock C will be constructed waterward of Lot 9, across a very small section of salt marsh grass. It also will be elevated four feet above the marsh floor to reduce shading, and will be constructed using the same minimally-impactful technique, to avoid and minimize impacts to the marsh. Because Dock C will have only de minimis impacts on the salt marsh, no mitigation has been required. The Consolidated Authorization contains conditions requiring Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibiting Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have only minimal impacts on the salt marsh habitat at the Project site. The Consolidated Authorization contains a specific condition requiring maintenance of a minimum 12-inch clearance between the deepest draft of the vessel, with the motor in the down position, and the top of submerged resources for all vessels that will use the docking facility. Additionally, the construction of mooring areas over submerged grass beds is prohibited. These conditions will help protect benthic habitat at the Project site. The Florida Manatee is the only listed species that inhabits the Project site. Video evidence presented by the City showed manatees present at, and in the vicinity of, the Project site. The Project is located in an area designated, in the most recent Duval County Manatee Protection Plan (November 2017) ("MPP"), as "preferred" for boat facility siting. Boating facilities located in designated "preferred" areas generally do not have any limits on the number of slips at the facility. "Preferred" boat facility siting areas were designated in the MPP based on many factors, including manatee abundance, presence of manatee feeding habitat, proximity to boating destinations, manatee mortality in the area, existing boating slip numbers and locations, boating facility type and number, and existence of speed zones. To protect manatees in the Back Channel, the Florida Fish and Wildlife Conservation Commission ("FWC") has, by rule, established a slow speed, minimum wake zone extending 300 feet from the shorelines into the Back Channel. A slow speed, minimum wake zone means that a vessel must be fully off-plane and completely settled into the water, proceeding at a speed which is reasonable and prudent under the prevailing circumstances so as to avoid the creation of an excessive wake or other hazardous condition which endangers or is likely to endanger other persons using the waterway.11/ Fla. Admin. Code R. 68C-22.02(4). The existence and enforcement of this speed zone will help protect manatees in the Back Channel. Conditions also have been included in the Consolidated Authorization to help protect manatees from impacts from the Project. As previously discussed, for each vessel, a minimum 12-inch clearance between the deepest draft with the motor down, and the top of the submerged resources at mean low water, must be maintained. This condition will help ensure that manatees do not become trapped under or crushed by a vessel while moored in the Lease area. Additionally, bumpers or fenders must be installed and maintained to provide at least three feet of separation between moored vessels and between the docks/mooring piles and vessels, to help prevent trapping or crushing of manatees. The Consolidated Authorization also requires the Project to be constructed and operated in accordance with the Standard Manatee Conditions for In-Water Work. These conditions include: instructing all personnel, including construction personnel, about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees, as well as about civil and criminal penalties imposed for harming, harassing, or killing manatees; operating all vessels associated with construction of the Project at "idle speed/no wake" at all times in the vicinity of the Project and where the draft of the vessel provides less than a four-foot clearance from the bottom; the requirement that all in-water operations, including vessels, must shut down if a manatee comes within 50 feet of the operation and cannot resume until the manatee either moves beyond the 50-foot radius of the operation or 30 minutes has elapsed and the manatee has not reappeared within 50 feet of the operation; the installation of specified temporary signage; and the installation of specified permanent signage. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the construction and operation of the Project will not adversely affect the value of functions provided to fish, wildlife, or listed species and their habitats. Water Quality Impacts As previously noted, the St. Johns River, including the Back Channel, is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in Florida Administrative Code Rule 62-302.300 apply to the Back Channel. The Back Channel portion of the St. Johns River has been identified as impaired for lead, pursuant to Florida Administrative Code Chapter 62-303. The credible, persuasive evidence demonstrates that the Project, if constructed and operated in accordance with the conditions currently included in the Consolidated Authorization along with additional conditions discussed below, will not cause or contribute to water quality violations. Specifically, the Project will be required to install and maintain turbidity barriers during the construction phase to help ensure that any sediment disturbed during construction does not cause or contribute to water quality violations. Additionally, as discussed above, a minimum 12-inch clearance between the deepest draft of each vessel, with the motor down, and the top of the submerged resources at mean low water must be maintained. This will help prevent the suspension of sediments, and any constituents in those sediments, from being suspended in the water column and causing or contributing to water quality violations, as a result of the Project. The Consolidated Authorization also prohibits the storage or stockpiling of tools, equipment, materials, such as lumber, pilings, riprap, and debris within wetlands or other waters of the state; prohibits the discharge of construction debris into waters of the state; prohibits the overboard discharge of trash, human or animal waste and fuel at the docks; and requires all work to be done in periods of average or low water, so that impacts to submerged resources, including bottom sediment, can be avoided. Collectively, these conditions help provide reasonable assurance that the construction and operation of the Project, including the mooring and operation of vessels in the Lease area, will not violate water quality standards. White testified that, generally, the water quality in, and in the vicinity, of marinas degrades over time due to the discharge of oils, greases, and other waste; and the suspension in the water column of sediments and toxins, pesticides, herbicides, and heavy metals in those sediments, as a result of propeller dredging. However, Irwin testified that because the Project site is located in a tidally-influenced area, with an approximate 3.5-foot tide range over multiple tide changes per day, the Project site will be adequately flushed such that there will not be an accumulation of pollutants that may violate water quality standards. Based on Irwin's persuasive testimony, it is determined that water quality violations will not occur due to an accumulation of pollutants at the Project site. To further ensure that the Project will not degrade water quality or violate water quality standards at the Project site, the Consolidated Authorization requires Workboats to submit a facility management plan to address maintenance and unexpected spills of fuels and other pollutants. The facility management plan must include a spill response plan for fuel spills; a plan for maintenance of gray water collection systems and return systems, to the extent applicable; a plan addressing garbage collection and vessel cleaning systems to prevent disposal of waste in wetlands; and an education plan for all employees at the Project regarding fueling, sewage and gray water pump operations, waste management, and facility maintenance. Sewage pump-out facilities are not proposed as part of the Project. Shafnacker testified, and the Consolidated Authorization, Project Description section currently states, that domestic waste from boat heads will be handled through use of a waterless incinerating toilet (Incinolet or similar), and the remaining ash shall not be disposed of in waters of the state. However, it is noted that this requirement is not currently included as an enforceable condition. The undersigned finds that a specific condition expressly prohibiting any sewage pump-out at the docks or on vessels, requiring the use of an incinerator toilet, and prohibiting the discharged of ash waste should be included in the Consolidated Authorization to provide reasonable assurance that the Project will not violate water quality standards due to the discharge of sewage into waters of the state. The Consolidated Authorization, Project Description section, states: This permit does not authorize the installation and use of fueling equipment at the Dock; the discharge of waste into the water; liveaboards; fish cleaning or the installation of fish cleaning stations; repair and maintenance activities involving scraping, sanding, stripping, recoating, and other activities that may degrade water quality or release pollutants into Waters of the State. Major repair, reconstruction, and/or other service must be performed at a facility approved for vessel haul-out and repair. This does not preclude the light maintenance allowed under Specific Condition 18 to be performed at the facility. This language, which expressly identifies numerous activities that are prohibited in connection with the operation of the Project, is not currently included as an enforceable condition in the Consolidated Authorization. The undersigned determines that in order to protect water quality at the Project site, this language must be included as a specific condition in the Consolidated Authorization. As previously noted above, the Back Channel is impaired for lead. Both Irwin and Hallett testified that Workboats would not use lead paint or lead-containing welding equipment on the docks or vessels moored in the Lease area. To provide reasonable assurance that the Project will not constitute a source of lead that will contribute to the impaired status of the Back Channel, a specific condition prohibiting the use of lead-based paints and other sources of lead should be included as an enforceable condition in the Consolidated Authorization. Based on the foregoing, the undersigned finds that, with the addition of the conditions discussed in paragraphs 68, 69, and 70 above, Workboats has provided reasonable assurance that applicable water quality standards will not be violated as a result of construction or operation of the Project. Adverse Secondary Impacts to Water Resources Secondary impacts are impacts caused by other relevant activities very closely linked or causally related to the activity itself, rather than the direct impacts of the proposed activity itself.12/ The conditions currently included in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70 above, provide reasonable assurance that the Project will not cause adverse secondary impacts to water quality. Additionally, the Project will not cause adverse secondary impacts to the functions of wetlands and surface waters, aquatic or wetland-dependent species, or listed species. As discussed above, the salt marsh habitat will not be disturbed during construction and operation of the Project, and the benthic habitat will be protected by the minimum 12-inch vessel to the top of submerged resource clearance requirement discussed above. These Project features and conditions will help ensure that there are no adverse impacts to wetland functions and to aquatic or wetland-dependent species, such as fish and benthic fauna. Additionally, the Project will be located within a slow speed, minimum wake zone, and Workboats will be required to operate all of its vessels in compliance with that standard within the 300-foot buffer along the shorelines of the Back Channel. This operational constraint, along with additional manatee protection conditions discussed above, provide reasonable assurance that the Project will not cause adverse secondary impacts to manatees. Based on the foregoing, it is determined that, with the addition of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not have adverse secondary impacts to the water resources. Impacts to Ground and Surface Water Levels and Surface Water Flows As discussed above, the Project will be constructed waterward of the mean high water line, and will consist of piling-supported and floating docks and mooring piles that will not adversely impact the maintenance of minimum surface or ground water levels or surface water flows at the Project site. Impacts to Works of the District The Project is not proximate to any works of the district, as approved pursuant to section 373.086; accordingly, it will not cause adverse impacts to such works. Capable of Performing and Functioning as Designed The Project was designed by an engineer and will be installed by Shafnacker, who is an experienced marine contractor. The Consolidated Authorization requires that the Project must be implemented in accordance with the approved plans, specifications, and performance criteria. Within 30 days of completion of construction of the Project, Workboats must submit an as-built survey, signed and sealed by a Florida licensed Surveyor and Mapper in accordance with Florida Administrative Code Chapter 61G17-7, depicting the boundaries of the Lease, and showing the size and dimensions of all existing overwater structures and activities within the Lease area. Additionally, the surveyor must provide a statement that all of the depicted structures and activities are located within the Lease area; or identify, and depict on an as-built survey, any structures or activities outside of the Lease area. These requirements will ensure that the Project performs and functions as designed. Financial, Legal, and Administrative Capability Rule 62-330.301(1)(j) requires an applicant for an environmental resource permit to provide reasonable assurance that the project will be conducted with a person having the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit.13/ The Environmental Resource Permit Applicant's Handbook, Volume I (General and Environmental) ("Handbook"), section 1.5.1., which provides further guidance regarding compliance with the requirement in rule 62-330.301(1)(j), states that "[c]ompliance with this requirement must be demonstrated through subsections 62-330.060(3) and (4), the certification required in the Application Form 62-330.060(1), and section 12.0 of the Handbook." As part of the Application, Workboats submitted copies of warranty deeds for lots 6, 7, and 8, and Disclaimer No. 22146 for Lot 9. These documents establish that Shafnacker holds title to the uplands on lots 6 through 9 and to certain submerged lands waterward of Lot 9. Pursuant to Handbook section 4.2.3, these documents satisfy the "sufficient upland interest" requirement in rules 62.330.060(3) and 62- 330.301(1)(j). Rule 62-330.060(3) also requires the applicant and/or the applicant's agent to sign specific parts of the application. Here, Workboats, and Shafnacker, as Workboats' agent, signed the pertinent portions of the Application, as required by this rule. Rule 62-330.060(4) and pertinent provisions of section 12.0 of the Handbook——specifically, provisions in sections 12.1 and 12.2——require that once construction of the permitted activity is complete, it must be converted to the operational phase by submitting an as-built certification and request for conversion to operational phase. Here, the Consolidated Authorization for the Project requires submittal of this form, once construction is complete, as a condition for operation of the Project. These are the only rules and Handbook provisions regarding demonstration of financial, legal, and administrative capability that are pertinent to the Project. No other environmental resource permitting rules or Handbook provisions impose any other requirements regarding financial capability, and the City has not identified any case law or other statutes or rules imposing additional pertinent financial capability requirements. Thus, the evidence establishes that Workboats meets rule 62-330.301(1)(j) and all other pertinent rules and Handbook requirements, showing it has the financial, legal, and administrative capability to ensure the Project will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. The City did not present any evidence to show that Workboats lacks the financial, legal, and administrative capability to undertake the Project as permitted. Compliance with Rule 62-330.302 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it also must provide reasonable assurance that the Project meets the requirements of rule 62-330.302,14/ which establishes additional standards for issuance of environmental resource permits for activities in surface waters or wetlands. Adverse Effects to Public Health, Safety, or Welfare, or Property of Others In determining whether a proposed activity in surface waters or wetlands would adversely affect the public health, safety, or welfare, or the property of others, the focus is on environmental hazards or injuries that may result from the proposed activity.15/ Thus, alleged threats to personal safety and enjoyment of neighboring property resulting from alleged unlawful activities on the upland areas of lots 6, 7, and 916/—— which are not part of the Project——are not appropriately considered as part of the public interest determination under rule 62-330.302. As discussed above, the Consolidated Authorization contains conditions aimed at ensuring that water quality is not degraded and water quality standards are not violated due to the Project. These conditions, along with conditions addressed in paragraphs 68, 69, and 70, above, provide reasonable assurance that the public health, safety and welfare, and property of others will not be adversely affected as a result of water quality degradation or violations. The Project, as designed and approved, will have 25-foot setbacks from the eastern and western riparian rights lines for lots 6 through 9. These setbacks will help ensure that the construction and operation of the Project will not interfere with the adjoining properties' riparian rights. The City presented the testimony of O'Connor, who opined that some of Workboats' vessels, operated at full throttle, were capable of generating a wake as high as three feet. O'Connor testified that a wake of this height could damage docks along the shoreline of the Back Channel, cause shoreline erosion, and create a safety hazard for recreational boaters, kayakers, and others engaged in in-water recreational activities. As discussed above, the Back Channel is approximately 1,300 feet wide at the Project site. Per the location map provided as part of the specific purpose survey, the portion of the Back Channel east of the Project site is at least this wide for its entire length. Shafnacker testified, credibly, that his vessels typically operate closer to the Blount Island shoreline than the northern shoreline of the Back Channel, so are approximately 800 feet away from the northern shoreline where the residential docks and access points for boaters, kayakers, and other recreational uses are located. Additionally, Shafnacker credibly testified that Workboats' boats and barges would be operated at speeds such that the highest wake that any of his vessels would generate is two feet. Based on the foregoing, and with the inclusion in the Consolidated Authorization of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not adversely affect the public health, safety, welfare, and property of others. Adverse Effects to Conservation of Fish, Wildlife, Listed Species, and their Habitats As previously discussed, the Consolidated Authorization requires Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibits Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have minimal impact on the salt marsh habitat at the Project site. The Consolidated Authorization also contains a condition prohibiting the construction of mooring areas over submerged grass beds. This, along with the condition requiring a minimum 12-inch clearance between vessel bottom and submerged resources, will help protect the benthic habitat at the Project site. Additionally, the Consolidated Authorization imposes conditions to protect manatees from impacts due to the Project. Specifically, bumpers or fenders must be installed and maintained to provide at least three feet of separation between docks or mooring piles and vessels, and between vessels, and a minimum 12-inch clearance between the deepest draft of the vessel and the top of the submerged resources at mean low water must be maintained. The Project also must be constructed and operated in accordance with the FWC's Standard Manatee Conditions for In-Water Work, which imposes construction and operational requirements to protect manatees for the life of the Project. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the Project will not adversely affect the conservation of fish and wildlife, including threatened species and their habitats. Adverse Effects to Navigation, Flow of Water, or Shoaling The Back Channel is navigable, and is over 1,300 feet wide at the point at which the Project is proposed to be located. It is used by a mix of recreational vessels and commercial and industrial vessels, although, as noted above, the low-clearance bridges on the western end of Blount Island effectively limit the commercial and industrial traffic to smaller-sized vessels. As depicted on the specific purpose survey submitted as part of the Application, the southern boundary of the Lease extends waterward approximately 196 feet from the shoreline at the eastern boundary of the Lease, and approximately 174 feet from the shoreline at the western boundary of the Lease. Thus, at its most waterward point, the preempted area of the Lease will extend waterward approximately 14 percent of the width of the Back Channel.17/ The specific purpose survey shows docks A and C extending waterward approximately 60 feet from the shoreline, and shows Dock B extending waterward approximately 45 feet from the shoreline.18/ The three three-pile dolphins, which will be used to moor the largest barges, will be set back approximately 38 feet from the southern boundary of the Lease. Shafnacker testified that barges moored at the three-pile mooring dolphins will be tied between the dolphins, by ropes at their bows and sterns, to ensure that they do not drift out of the Lease area and create a navigational hazard. The Consolidated Authorization contains a condition requiring the waterward ends of the docks and the mooring dolphins to be marked by reflectors so as to be visible from the water at night by reflected light. However, at the hearing, Shafnacker testified that he intended to mark the dolphins and barges with solar battery-powered lights so that they would be more visible at night than if only reflectors are used. Based on this testimony, it is recommended that Specific Condition No. 13 in the Consolidated Authorization be modified to require the barges and mooring dolphins to be marked by lights, as well as reflectors, to make them more visible from the water. Based on the foregoing, it is determined that the Project, as proposed, will not adversely impact navigation in the Back Channel. Specifically, the Lease will not extend a significant distance out into the Back Channel; approximately 86 percent of the width of the Back Channel at the Project site remains open for navigation by the public. Additionally, the docks will be located relatively close to the shoreline, well within the Lease preempted area, and will be marked so that they are visible from the water. The mooring dolphins also will be set back a substantial distance from the Lease boundary and will be marked so as to be visible from the water. The evidence shows that the Project will not have any adverse effects on the flow of water. As discussed above, the Project will not impede, impound, or otherwise affect the flow of water. The evidence also shows that the Project will not cause harmful shoaling or erosion. No dredging or placement of dredged spoil is proposed or authorized as part of the project, and the Consolidated Authorization requires Workboats to use silt fencing and other specified best management practices to stabilize the sediment and prevent erosion and shoaling during construction of the Project. For these reasons, it is determined that the Project will not adversely impact navigation in the Back Channel, will not adversely affect the flow of water, and will not result in harmful shoaling or erosion. Adverse Effects to Fishing, Recreational Values, or Marine Productivity The Back Channel is a meander of the St. Johns River that no longer is used as the main navigational channel for the river. Thus, it is relatively calm and is extensively used for boating, kayaking, swimming, fishing, jet skiing, and other in- water recreational activities. The evidence establishes that the Project will not adversely affect fishing, recreational values, or marine productivity in the vicinity. The salt marsh habitat in the vicinity of the Project, which serves as the base of the estuarine food chain and as a nursery and refuge for small fish, will not be disturbed during construction of the Project. As such, the Project will not adversely affect fish habitat or marine productivity. Additionally, because the Project will be constructed within the boundaries of the Lease and set back 25 feet from the riparian lines for the adjoining properties, it will not physically interfere with or displace fishing activities from those properties, or from any other property in the vicinity. The Consolidated Authorization imposes conditions to protect water quality during construction and operation of the Project. These conditions, and the additional conditions, discussed in paragraphs 68, 69, and 70, above, will protect water quality, and therefore help protect fish habitat and marine productivity. The credible evidence establishes that vessel operation associated with the Project will not adversely affect boating, kayaking, fishing, or other recreational activities in the vicinity. As discussed above, the Project is located in a slow speed, minimum wake zone that extends 300 feet from the shoreline into the Back Channel, and all vessels traversing into and out of the Lease area must operate at this speed until they are beyond 300 feet from the shorelines. Additionally, Shafnacker credibly testified that once out of the 300-foot slow speed, minimum wake zone, the vessels will operate at speeds such that they will generate a wake of two feet, at most. The evidence showed that wakes of this height are not anticipated to adversely affect recreational activities in the Back Channel. Temporary or Permanent Activity The Project will be permanent. However, the evidence establishes that there are numerous permanent docking facilities along the northern shoreline of the Back Channel, so the Project is not unique in that regard. Adverse Impacts to Significant Historical or Archaeological Resources The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any adverse impacts to such resources. As a precaution, the Consolidated Authorization contains a specific condition requiring Workboats to immediately cease all activities involving subsurface disturbance and to contact DHR if any prehistoric or historic artifacts, such as pottery or ceramics, project points, dugout canoes, metal implements, historic building materials, or any other physical remains that could be associated with Native American, early European, or American settlements are encountered at any time within the Project site. Accordingly, it is determined that the Project will not adversely affect significant historical or archaeological resources. Current Condition and Relative Value of Functions The salt marsh wetlands in the vicinity of the Project are healthy, high-functioning, and part of a "living shoreline" that will not be disturbed by construction or operation of the Project. Although Dock C will be constructed across a very small patch of salt marsh, it will be elevated to reduce shading and will be constructed using minimally-impactful construction techniques. Any impacts to the salt marsh from the Project will be de minimis. The Project is also not anticipated to adversely affect the condition and relative value of the benthic habitat on the Project site. As discussed above, the Consolidated Authorization imposes a minimum 12-inch clearance from vessel bottom to top of submerged resources requirement, which will help prevent physical impact to, and propeller dredging of, the benthic habitat at the Project site. Conditions in the Consolidated Authorization, as well as the conditions addressed in paragraphs 68, 69, and 70, above, also will help protect the current condition and relative value of the salt marsh and benthic habitat on the Project site. Unacceptable Cumulative Impacts to Wetlands and Surface Waters With the conditions currently contained in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70, above, the Project is not anticipated to have adverse water quality impacts. Additionally, as discussed above, the Project is not anticipated to cause adverse impacts to fish, wildlife, protected species, and their habitat. Therefore, with the inclusion of the conditions discussed in paragraphs 68, 69, and 70, above, reasonable assurance has been provided that the Project will not have unacceptable cumulative impacts, in violation of rule 62- 330.302(1)(b). Past Violations of Water and Wetlands Statutes and Rules The City presented evidence consisting of videos and photographs taken from the Wood residence immediately east of Lot 9. These videos and photographs show a variety of activities that are potentially damaging to surface waters and wetlands, including dumping sediment into surface waters from a moored vessel; earthmoving; moving floating docks onto, and off of, the shoreline using heavy equipment; operating heavy equipment in wetlands and surface waters along the shoreline; and mooring boats in extremely shallow water. Wood testified, credibly, that he contacted DEP numerous times, and that DEP occasionally visited Shafnacker's property——typically days after Wood had contacted the agency. Upon inspecting the Workboats site, DEP determined that barges or other equipment or materials had been dragged onto the shoreline without proper authorization, and DEP issued a compliance assistance offer letter to address this noncompliance. DEP ultimately determined that, rather than taking enforcement action for this noncompliance, a salt marsh restoration corrective action requirement should be included in the Consolidated Authorization. The corrective action conditions require Workboats to submit a salt marsh restoration plan and impose restoration plan completion timeframes, success criteria, and monitoring requirements. Given Workboats' noncompliance history, the undersigned determines that in order to provide reasonable assurance that the Project will not violate environmental resource permitting statutes and rules, the conditions addressed above in paragraphs 35, 68, 69, and 70, above, must be included as enforceable conditions in the Consolidated Authorization. Compliance with Chapter 18-21 for Issuance of the Lease For Workboats to be entitled to issuance of the Lease, it must demonstrate, by a preponderance of the evidence, that it will meet the applicable requirements and standards codified in Florida Administrative Code Chapter 18-21 for issuance of a sovereignty submerged lands lease. Water Dependent Activities Rule 18-21.004(1)(g) requires activities on sovereignty submerged lands to be limited to those that are water dependent. A "water dependent activity" is one that can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. Fla. Admin. Code R. 18- 21.003(71). The Project's proposed docks, mooring piles, mooring dolphins, and vessel mooring operations are water dependent activities. The Project's primary purpose is the water dependent activity of mooring vessels and the ancillary activity of loading vessels with supplies as part of Workboats' operation. Case law interpreting Florida Administrative Code Chapter 18-21 holds that because the primary purpose of docks and other mooring structures is to moor vessels, they are "water dependent" activities for purposes of rule 18-21.004(1)(g).19/ As discussed in paragraphs 35, 68, 69, and 70, above, a condition should be included in the environmental resource permit and Lease specifically prohibiting any major repair, reconstruction, or maintenance activities within the Lease area, in order to ensure that only water dependent activities are conducted within the Lease area. Resource Management Requirements Rule 18-21.004(2)(a) requires sovereignty submerged lands to be managed primarily for the maintenance of natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Additionally, the rule authorizes compatible secondary uses that will not detract from or interfere with these primary purposes. As discussed above, the evidence establishes that the Project, as proposed and conditioned in the Consolidated Authorization, will not adversely affect salt marsh or benthic habitat, will not degrade water quality or cause or contribute to water quality violations, and will not adversely affect fish, wildlife, listed species, and marine productivity. Accordingly, the Project will not detract from, or interfere, with fish and wildlife propagation. The evidence also establishes that the Project will not detract from, or interfere with, traditional recreational uses. As discussed above, the Back Channel is wide enough to accommodate vessels traveling to and from the Project site without detracting from or interfering with recreational activities conducted in the Back Channel. Additionally, vessels traveling to and from the Project site must be operated in accordance with the slow speed, minimum wake zone within the 300-foot shoreline buffer, and will be operated at speeds that will generate a maximum two-foot wake outside of the shoreline buffer. The evidence shows that these speeds will not detract from, or interfere with, traditional recreational uses in the Back Channel. The Project also has been designed, and will be operated, to minimize or eliminate wetland vegetation impacts and impacts to fish and wildlife habitat and cultural resources. Specifically, as discussed above, impacts to the salt marsh habitat have been minimized through the use of minimally- impactful construction techniques and elevating docks four feet above the marsh to reduce shading of the marsh grasses. Additionally, the 12-inch minimum vessel/submerged resource clearance condition will reduce impacts to the benthic habitat in the Lease area. As discussed above, DHR did not provide comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any impacts to such resources. Additionally, the Consolidated Authorization contains a specific condition establishing protocol for Workboats to follow if any specified artifacts are encountered at any time within the Project site. Rule 18-21.004(7)(e) requires that construction, use, or operation of the structure or activity not adversely affect any species listed as endangered, threatened, or of special concern in FWC rules. As discussed above, the Florida Manatee is the only listed species determined to be present the Project site. The Project site is located within an established slow speed, minimum wake zone, and vessels entering and leaving the Project site must comply with this speed limitation within the 300-foot shoreline buffer area. Additionally, the Consolidated Authorization includes several conditions designed to reduce and minimize potential impacts to manatees that may enter the Lease area. Collectively, these requirements and conditions will help ensure that the construction and operation of the Project will not adversely affect manatees. Riparian Rights As part of the Application, Workboats submitted deeds and Disclaimer No. 22146, demonstrating that Shafnacker holds title to lots 6, 7, 8, and 9. These documents constitute "satisfactory evidence of sufficient upland interest," as that term is defined in rule 18.21.003(60). Consistent with rule 18-21.004(3)(d), the Project is proposed to be constructed in the riparian area appurtenant to lots 6, 7, 8, and 9, and all structures that are part of the Project will be set back at least 25 feet from the eastern and western riparian lines for the upland property. No evidence was presented showing that the construction or operation of the Project would unreasonably restrict or infringe upon the riparian rights of adjacent upland owners, in violation of rule 18-21.004(3)(c). It is determined that the Project will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners, so meets the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 102 through 107, above, it is determined that the Project will not constitute a navigational hazard, in violation of rule 18- 21.004(7)(g). However, the inclusion of a condition requiring lighting of the mooring dolphins, discussed in paragraph 106, is recommended to ensure the Project will not constitute a navigational hazard. Lease Fees As part of the Application, Workboats submitted a financial affidavit attesting to its ability to pay the required fees for the Lease, imposed pursuant to rules 18-21.008 and 18-21.011. Not Contrary to the Public Interest Rule 18-21.004 establishes the sovereignty submerged lands management policies, standards, and criteria to be used in determining whether to approve activities on sovereignty submerged lands. The term "public interest" is defined to mean "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Fla. Admin. Code R. 18-21.003(51). To meet the "not contrary to the public interest" standard in rule 18-21.004(1)(a), it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998). Here, the City asserts that the Lease is contrary to the public interest because it will cause adverse impacts to benthic and salt marsh habitat; discharge pollutants into the waters of the Back Channel; harm manatees; pose a navigational hazard; and detract from, and interfere with, recreational activities in the Back Channel. However, as discussed above, the evidence shows that the Project has been designed specifically to minimize many of these impacts, and the Consolidated Authorization contains conditions specifically aimed at preventing many of these alleged impacts. As discussed above, other conditions, discussed in paragraphs 68, 69, 70, 106, and 138, also should be included in the Consolidated Authorization to ensure that the Project will not cause adverse impacts to habitat resources, water quality, manatees, and navigation. Case law interpreting the public interest test in rule in 18-21.004(1)(a) applicable to proprietary approvals holds that when proposed structures or activities meet the applicable standards and criteria in chapter 18-21, those structures or activities are presumed to be not contrary to the public interest. See Spinrad v. Guerro and Dep't of Envtl. Prot., Case No. 13-2254 (Fla. DOAH July 25, 2014), modified in part, Case No. 13-0858 (Fla. DEP Sept. 8, 2014); Haskett v. Rosati and Dep't of Envtl. Prot., Case No. 13-0465 (Fla. DOAH July 31, 2013), modified in part, Case No. 13-0040 (Fla. DEP Oct. 29, 2013). Here, Workboats has demonstrated that the Project meets all applicable standards and criteria in chapter 18-21; thus, the Project is presumed to be not contrary to the public interest under rule 18-21.004(1)(a).20/ The City did not present persuasive evidence showing that, on balance, the demonstrable environmental, social, and economic costs of the Project exceed the demonstrable environmental, social, and economic benefits accruing to the public.21/ Accordingly, it is determined that the Project meets the public interest test in rule 18- 21.004(1)(a). Entitlement to Environmental Resource Permit Workboats met its burden under section 120.569(2)(p) to present a prima facie case of entitlement to the environmental resource permit by entering into evidence the Application, Notice of Intent, Consolidated Authorization, and supporting information. Workboats also presented credible, competent, and substantial evidence beyond that required to meet its burden to demonstrate prima facie entitlement to the environmental resource permit. The burden then shifted to the City to demonstrate, by a preponderance of the competent substantial evidence, that the Project does not comply with sections 373.413 and 373.414 and applicable environmental resource permitting rules. For the reasons discussed above, it is determined that the City did not meet its burden of persuasion under section 120.569(2)(p). Accordingly, for the reasons discussed above, it is determined that, with the inclusion of conditions in the Consolidated Authorization addressed in paragraphs 35, 68, 69, 70, and 106, above, Workboats meets all applicable requirements for issuance of the environmental resource permit for the Project. Entitlement to Lease As discussed above, Workboats bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Project meets all applicable statutory and rule requirements for issuance of the Lease. For the reasons discussed above, it is determined that Workboats met this burden, and, therefore, is entitled to issuance of the Lease for the Project. The City's Standing As previously noted, the City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. On or about July 26, 2018, the Council of the City of Jacksonville, Florida, adopted Resolution 2018-499-A, finding that issuance of the environmental resource permit and Lease affects the substantial interests of a significant number of residents in Duval County. The City initiated this proceeding by filing its Petition with DEP on August 17, 2018, alleging that the Project will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft amended Permit No. 16-0345934-003-EI, as modified to include the conditions addressed in paragraphs 35, 68, 69, 70, 106, and 137, above. DONE AND ENTERED this 1st day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2019.
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel. The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals. The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be. The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it. The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods. This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat. The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
Findings Of Fact On August 5, 1980, the Petitioners filed an application for a dredge and fill permit pursuant to Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, as well as for water quality certification pursuant to Chapter 401 of Public Law 92-500, as amended, United States Statutes At Large. On March 20, 1981, the Department gave the Petitioners notice that it intended to deny their application for the permit and notified Petitioners of their right to a hearing pursuant to Sections 120.57, Florida Statutes, which right they chose to exercise. The Petitioners own a tract of land adjacent to and partially within the landward extent of the Suwannee River in Dixie County, Florida. The Department of Environmental Regulation (Department) is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in Chapter 17, Florida Administrative Code, promulgated thereunder. The Petitioners propose to embark on a project involving the dredging of a canal approximately 200 feet long in a generally westerly direction from the navigable portion of the Suwannee River through the river berm into the river swamp or floodplain. Across and perpendicular to the landward end of that access canal the Petitioners propose to construct a boat basin approximately 100 feet wide by 275 feet long in the swamp floodplain. The proposed excavation would be to a depth of 6.25 feet below mean sea level and approximately 9000 cubic yards of fill material would be deposited as-fill in the adjacent swamp floodplain remaining around the boat basin and access canal. A boat ramp would then be constructed into the boat basin. A retaining wall would be constructed around the excavated areas along the north and south property lines of the property owned by the Petitioners. The property to be developed by the Petitioners lies within the landward extent of the Suwannee River in Dixie County and the Suwannee River constitutes waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17- 4.28(2)(a), Florida Administrative Code. The project area lies within an "outstanding Florida water" as defined in Rule 3.041(3)(g), Florida Administrative Code. The river terrace or "berm" on the property immediately adjacent to the navigable portion of the river is caused by the natural deposition of alluvial material. The landward extent of the State waters which are the subject matter of this proceeding cross the property immediately behind this terrace and connect with the navigable portion of the river on an adjacent parcel of property. The proposed dredging operation would connect 37,500 square feet of a dead-end canal system excavated to minus 6.25 feet below mean sea level to the navigable portion of the Suwannee River. The dredging and filling operation would result in the permanent elimination of approximately 2.84 acres of the landward extent of the Suwannee River floodplain which is dominated by plant species listed in Rule 17-4.02(17) , Florida Administrative Code, which define jurisdiction of the Respondent. The proposed dredging and filling will cause and constitute a stationary installation reasonably expected to be a source of pollution. The Petitioners during the course of this application process cleared the subject property at least in part. Prior to that clearing operation, the terrace area was vegetated with bald cypress, blue beech, water hickory and sweet gum, with bald cypress and buttonbush becoming the dominant plant species progressing in a southerly direction along the terrace. Landward of the natural terrace or berm, the cypress-tupelo swamp was dominated by water tupelo, bald cypress, water ash, and buttonbush, all species listed in Rule 17- 402(17), Florida Administrative Code. An additional inspection conducted after the land-clearing operation revealed that the area was again sprouting or revegetating into the same swamp species, with the dominant species being bald cypress. The swamp area in question provides flood protection as well as control of sedimentation by the storing of flood waters and the filtering of sediment and particulates releasing them in a gradual fashion to the river system especially during dry periods when the river level is lower than that of the swamp. This also serves to augment the stream flow in the river itself during such periods. The proposed activity, by removing the trees and other plant species named above, as well as because of the dredging and filling of the swamp floodplain area, would cause degradation of local water quality. The swamp currently contributes to the maintenance of water quality in the navigable river itself by the filtering of sediment and particulates, as well as the assimilating, uptake and transforming of nutrients and other pollutants by the plant species growing on the site. The proposed project would destroy by tree- cutting, and the dredging and filling, this function of the swamp area in controlling pollution and promoting water quality in the river. The river swamp on this parcel of property, as well as on adjacent areas, serves as a habitat, food source and breeding ground for various forms of fish and wildlife. The proposed dredging and accompanying filling of the floodplain area with the associated removal of trees and other plants and increased turbidity would largely eliminate this function on the Petitioners' property and drastically alter the swamp area as a habitat, food source and breeding ground on adjacent areas, particularly downstream of the property. The most notable long-term adverse impact of this project would include excessive turbidity caused by the removal of the subject plant species and the deposition of the fill in the floodplain area. Turbidity would be a special problem during times of excessive rain and high or flood waters in the river and adjacent swamp land. An additional long-term detrimental effect will be excessive nutrient enrichment in the area due to the removal of the filtrative and assimilative functions performed by the trees and other plant life across the entire width of the swamp. As a result the adjacent areas will be unable to fully take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. Because of its physical design and dimensions and tangential exposure to river currents and tidal flow, the proposed canal and boat basin will be characterized by sluggish circulation and will lack sufficient flushing action to maintain water quality at an appropriate level, particularly with regard to dissolved oxygen content. The lack of adequate water exchange or flushing will lead to an accumulation of oxygen-demanding sediment and organic waste in the canal and boat basin. This accumulation results in low-dissolved oxygen content in the water and anerobic conditions, which result in a substantially decreasing ability for the water to support aquatic and other wildlife. The lack of water exchange will lead to an accumulation of nutrients which can result in explosive growth of noxious aquatic weeds. In turn, these weeds grow and decay and contribute through the decay process to the low-dissolved oxygen levels in the canal. Thus, the long-term effects will result in violations of water quality criteria for biochemical oxygen demand, nutrient content and dissolved The cumulative effect of a proliferation of projects such as this one involving dredging of canals and associated filling, as well as filled roads across similar floodplain areas, will cause degradation of local water quality in violation of State standards both singly and in the aggregate. Such a project ultimately alters the hydro-period of the area, which is the average time during which flood waters are retained in the swamp and floodplain area for gradual, filtered release into the river itself. The altered hydro-period will result particularly from the removal of trees and other plant species which perform a filtrative function for flood waters and associated sediment. The removal of the plant life will result in a more rapid flow of waters through the subject swamp area which will prevent sediments from precipitating out of the water before it returns to the navigable river which effect will be heightened by the presence of the turbidity caused by the deposition of the fill material and its exposure to the erosive effect of flood waters. The Petitioners additionally failed to show that the project was necessary in order for them to have access to the navigable portion of the river. The Department advocated prior to and during the hearing that a viable and acceptable alternative would be the construction of a walk-way or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of the Petitioners' property. Although the bridge or walkway would require a permit, the Department took the position that it would not object to such a permit for an elevated wooden walkway and dock into the navigable portion of the river or a bridge for vehicles and an attendant boat ramp. The Petitioners did not agree to such a solution of the controversy. It should also be noted that access is available for the Petitioners to the waterward portion of the property from the navigable side of the river berm by boat. The Petitioners contend they are entitled to a permit by default on the part of the Respondent. The Department received the application on August 5, 1980. Three days later on August 8, 1980, the Respondent requested additional information and informed the Petitioners that they had to present evidence of consent to the use of the State-owned land involved from the Board of Trustees of the Internal Improvement Trust Fund/Department of Natural Resources (DNR). The application was forwarded to the DNR on September 8, 1980. Another copy of the application was forwarded to the DNR on January 8, 1981. A letter from DNR to the Petitioners on approximately March 9, 1981, indicates that the application was held in abeyance pending notification of action by the DER, the Respondent herein. Ultimately, the DNR by letter of March 19, 1981, acknowledged receipt of payment for the subject fill material, but elected not to formally consent or reject the project. It has been the practice of the Respondent Department to await a DNR consent or rejection prior to issuance of its notice of proposed agency action. The Department issued its intent to deny by letter on March 20, 1981, which was 43 days after the Petitioners' last modification of its application on February 5, 1981. Thus, the application was not complete until February 5, 1981, since the Petitioners never furnished the lawfully requested information until that date.
Recommendation Having considered the foregoing-findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED that the petition of Raymond H. Hodges, Jr., and Anne G. Hodges for a dredge and fill permit be DENIED. DONE AND ENTERED this 16th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981. COPIES FURNISHED: Raymond H. Hodges, Esquire Post Office Box 1688 Zephyr Hills, Florida 33599 Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
