Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
Findings Of Fact Petitioners own Lots 1, 2, 3, 4 & 5, Indian Beach Manor, Section A, according to plat thereof recorded in Plat Book 22, Page 48, Public Records of Pinellas County, Florida, together with a parcel of submerged land in The Narrows in Section 30, Township 30 South, Range 15 East, Pinellas County, Florida (Exhibits 8, 11, 12, 13). The real estate in question is located at Indian Rocks Beach, Florida, and abuts that portion of the Intracoastal Waterway between Clearwater Harbor and Boca Ciega Bay called The Narrows. The property in question is approximately 200 feet wide and 500 feet long consisting of some 2.3 acres. It is bounded on the east by The Narrows, with Gulf Boulevard on the west, 191st Avenue on the north, and a boat channel extending approximately 300 feet from The Narrows on the south. The land is located within the intertidal zone below the line of mean high water and is vegetated approximately 75 percent by red and black mangrove trees. At high tide, the property is completely inundated. During low tide periods, a considerable amount of firm tidal flat is exposed. Meandering through the flats are several streams that connect intracoastal waters with shallow pools enclosed by mangroves. At the northwest corner of the property on 191st Avenue is located a city-owned storm sewer pipe which spills stormwater drainage down a ditch which crosses the property add discharges on the east side (Exhibits 1, 4, 7, 9, 10, Composite Exhibit 14, testimony of Albrecht). In April, 1974, Petitioners applied to the Board of County Commissioners of Pinellas County to fill Lots 1-4. After first denying the application, the board, sitting as the Pinellas a County Water and Navigation Control Authority, held a rehearing and approved the application on December 17, 1974, subject to the approval of the Trustees of the Internal Improvement Trust Fund of the State of Florida. By Resolution 25-74, December 10, 1974, the town council, Indian Shores, Florida, had urged the Pinellas County Water and Navigation Control Authority to grant the permit as being in the best interests of that town in that it would eliminate a health and welfare menace to the town's citizens (Composite Exhibit 1). Petitioners then made application to the Department of Pollution Control for water quality certification under Chapter 17-3, Florida Administrative Code. On April 1, 1975, they were informed by that Department that their application was denied. Petitioners then jailed a petition for review of the denial on April 8, 1975. In their Petition, it was stated that the application for water quality certification was part of a fill only and seawall permit application pending before the Trustees of the Internal Improvement Trust Fund. They contended that the water quality standards contained in Chapter 17-3 were not applicable to their application because there would be no discharge of any kind into state waters. The original application to fill and construct a seawall that had been pending before the Trustees was thereafter transferred to Respondent agency as part of the reorganization of state environmental agencies in 1975. On February 2, 1976, Petitioners were advised by Respondent that it intended to recommend denial to the Secretary of the Department of Environmental Regulation of Petitioners' application for a Chapter 403 and 253 permit and Water Quality Certification under P.L. 92-500 based on biological assessments of August 15, 1974, and January 28, 1975, and a water quality report of April 1) 1975. Petitioners then requested a hearing on February 6, 1976 (Exhibits 2, 3, 4, 5). Respondent based its proposed denial generally on the determination that filling of the intertidal mangrove area and the navigable shallow bayous would have material adverse effects on marine life and wildlife and would not be in the best interests of conservation of marine biological resources (Exhibit 4). The property is essentially a cul de sac with less than the usual water flow exchange by tides and there is some impoundment of the water that flows through the roads and adjacent property. There is evidence of pollution of the water by reason of the culvert and ditch which drains from the northwest boundary of the property. A certain amount of wash from boat traffic along the Intracoastal Waterway undoubtedly introduces additional pollutants into the area. The property also has been used as a dumping ground to some extent and a borrow pit exists at the northwest corner of the property. Water samples taken in July, 1976, reflected pollution, primarily as to nitrogen and sulfur, in the area whore the stormwater drainage culvert empties onto the property. Filling of the land will remove much of the present pollutants caused by stormwater runoff (Testimony of Davis, Exhibit 6) In spite of the pollution of the water, the property in question is a productive mangrove system. The shallow bottoms function as feeding areas for animal life and the vegetation provides a diversified habitat for the estuary. Prop roots and pneumatophores of the red and black mangroves are covered with barnacles, oysters and other shellfish, and live oyster bars are found on the flats. Various species of red, green and brown algae vegetate the shallow streams and pools. Export of mangrove detritus which is biologically important as a basic food chain substance is very evident. An acre of mangroves can produce almost 8,000 pounds of detritus for herbivores a year which is transported out by the tide. Detritus is the sole diet for adult mullet. Marine life and wildlife observed in the area consists of a variety of fish, invertebrates, and birds (Exhibits 4 and 17, testimony of Burdett, Knight, Matthews). During the period from 1943 when the Indian Beach Manor area was platted until 1975, approximately 300 feet (about half of the platted depth of the lot) had been lost through erosion. The proposed seawall will be 5' 7" high and will tie into an existing seawall on adjoining city property to the north. Petitioners plan to create a dike four or five feet high across the eastern shore boundary of the land, pump out the water, and fill with Florida sand to elevate the land about six feet (Testimony of Albrecht, Campbell).
Recommendation That Petitioners' application for a permit to fill and construct a seawall under Chapter 253 and 403, Florida Statutes, be denied. DONE and ORDERED this 17th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Reynold Caleen, Esquire Department of Environmental Regulation 2562 Executive Center Circle Montgomery Building Tallahassee, Florida 32301 Herman W. Goldner, Esquire P.O. Drawer 14233 St. Petersburg, FL 33733
Findings Of Fact On January 19, 1984, Applicant applied to DER, pursuant to Sections 253.123 and 403.087, Fla.Stat., and Chapters 17-3 and 17-4, F.A.C., for a permit and water quality certification to construct a 36-slip docking facility in Baker-Carroll Pointe Waterway (the lagoon). While the lagoon is located in Class II waters, the waters are prohibited for shellfish harvesting. On October 31, 1984, DER issued its letter of intent to issue the requested permits. Protestors timely filed a petition for formal administrative proceedings. Protestors' substantial interest will be directly affected by issuance of the subject permit. The proposed facility will be located as close as 50 feet to the main residential building of Protestors, and the proposed docks will be accessed by way of a seawall which is part of Protestors' common area. The Marina The permit sought by the Applicant would allow it to construct a 36- slip docking facility consisting of 615 linear feet of 5 foot wide marginal dock set 6 feet waterward and running parallel to an existing concrete seawall, with three 5 foot by 6 foot access ramps from the seawall to the marginal dock, and eighteen 30 foot by 4 foot finger piers extending waterward of the marginal dock. Nineteen mooring piles are to be installed. Total dock area is to be 5,325 square feet. The facility will be constructed of pressure treated piles and lumber. No fuel facilities are proposed. Applicant proposes to sell the 36 slips to unit owners in the Surf Colony complex, that is Vanderbilt Surf Colony I, Vanderbilt Surf Colony II and Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Each of the existing buildings contains 65 units. DER's October 31, 1984, letter of intent, proposed to issue the permit subject to the following conditions: Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. The lagoon shall be designated a "No Wake" zone. Markers and/or signs (PVC pipes or piles) shall be erected at the entrance to the shallow cove prohibiting navigation in said area with limits to be approved by the Punta Gorda DER office. No liveaboards shall be allowed at the permitted facility. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Trash receptacles shall be located at approved locations on the dock. The easternmost dock limit shall be lighted at night or equipped with reflective markers to aid navigation. No construction of the project shall take place until appropriate DNR approval is granted for the project per Section 253.77, Florida Statutes. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria. 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. Applicant has agreed to comply with all conditions established by DER. The Marina Site Baker-Carroll Pointe Waterway (the lagoon) is a partially man made navigable lagoon, with access to Water Turkey Bay which lies to its east. The south side of the lagoon is bulkheaded (along the proposed docking facility site), and the north and west side of the lagoon is composed of dense mangrove forest within the Delnor-Wiggins Pass State Recreation Area (Park). The waters of the proposed project abut and mix with those of the Outstanding Florida Waters (OFW) of the Park. Rule 17-3.041(4)(c), F.A.C. The Park is located on the western and northern shores of the lagoon, and the Park's boundary is located underneath the existing lagoon. The Park has a boat ramp and dock at the mouth of the lagoon. Associated with the ramp are 36 parking spaces for boat trailers. The access channel from Water Turkey Bay varies from 100 to 150 feet wide, the end of the lagoon is approximately 200 feet wide, and the lagoon is approximately 700 feet long. The bulkheaded shoreline has a shallow, 6 foot wide shelf that is covered by a few inches of water during low tide and is colonized by oyster assemblages. Depths increase rapidly from the edge of the shelf to -7 to -8 feet NGVD approximately 40 feet offshore. Depths at the finger piers will be -4.5 to -6.5 NGVD feet. The majority of the central lagoon has uniform depths of -7 to -8 feet NGVD with approximately one foot of silt overlying a firm substrate. Increased depths of -9 to -10 feet NGVD are found in the channel leading from the lagoon to Water Turkey Bay. Channel depths within Water Turkey Bay are -5 feet NGVD or less. Except for a shallow cove at the northwestern extreme of the lagoon, water depths of -5 to -7 feet NGVD are found approximately 30 feet waterward of the mangrove fringe along the western border of the lagoon. In the immediate project site there are no seagrasses or other significant biota. The only productive area within the project site is the shallow six foot wide shelf which parallels the bulkhead and is colonized by oyster assemblages. There are no other significant biota because the area was extensively dredged in the late 1960s or early 1970s. Seagrasses are found in the smaller cove located in the extreme northwest of the lagoon. The western and northern shores of the lagoon are extensively populated by red, black and white mangroves. Aquatic fauna known to inhabit the vicinity, and found in association with the grassbeds in Water Turkey Bay, include lightening whelks, blue crabs, sheepshead minnows, mullet, pin fish, and silver perch. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the lagoon sediments caused by installing the facility's pilings. This can, however, be adequately controlled by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. While there are presently no seagrasses in the project area, the 6 foot wide shelf which parallels the bulkhead is colonized by oyster assemblages and algae. Since the marginal dock will be placed 6 feet waterward of the seawall, sunlight will be permitted to reach the productive shelf which parallels the seawall. Additionally, since the marginal dock is 5 foot wide, the closest any boat will be to the seawall will be 11 feet. This will result in a buffer zone of 5 feet between the waterward extreme of the 6 foot shelf and any boat moored at the marina. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage from existing craft and those which occupy the marina to the seagrass beds in the extreme northwest portion of the lagoon will be eliminated or minimized by the planned installation of markers and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the lagoon as a "No Wake" zone. The fueling of boats, hull maintenance and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling or maintenance facilities, and while no liveaboards, boat cleaning, hull maintenance, nor fish cleaning will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the special conditions established by DER, the following special conditions are necessary: All craft docked at the marina shall be prohibited from pumping bilges and sewage into the waters of the lagoon. Ownership and use of the boat slips, or any of the marina facilities, shall be limited to those person(s) who own condominium unit(s) at the Surf Colony complex, to wit: Vanderbilt Surf Colony I, Vanderbilt Surf Colony II, Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Leasing or any other use of the boat slips, or the marina facility, by any person(s) other than the actual owner thereof shall be prohibited. Since the facility is small, and a full-time dock master is not proposed, limiting ownership and use of the boat slips to owners of condominium units at the Surf Colony complex will provide reasonable assurances that the conditions imposed on the requested permits will be complied with. Prohibiting the pumping of sewage and bilges will provide reasonable assurances that DER standards for bacteriological quality will not be violated. Protestors suggest that oils and greases, including lead found in marine fuels, could cause a degradation of water quality and affect the biota in the area. Protestors presented evidence through Dr. Nancy Nicholson, an expert in marine ecology and marine biology, that oils, greases, and lead could reasonably be expected to be ejected into the water column from boats occupying the marina, and that such pollutants, after entering the sediments, could be expected to enter the food chain. Protestors offered no evidence of the quantities of oil, greases or lead which could be expected to be injected into the water column, or to enter the food chain, other than "they are not large." Petitioner offered no evidence that the oils, greases or lead emitted by the boats occupying the marina would cause or contribute to a degradation of water quality below DER standards, or impact marine resources to such an extent as to be contrary to the public interest. Juxtaposed with the opinion of Protestors' expert is the empirical testimony of DER's witnesses, Terri Kranzer, an expert in water quality and aquatic biology, and Douglas Fry, an expert in dredge and fill impacts on water quality and aquatic biology, that the proposed facility and its operation will not cause or contribute to a degradation of water quality below DER standards and will not impact marine resources to such an extent as to be contrary to the public interest, so long as the Applicant complies with the permitting conditions. Protestors also suggest that turbidity, caused by boats operating from the marina, could cause a degradation of water quality and affect the biota in the area. Protestors' witness, Dr. Nicholson, testified to observing boats increase turbidity within the lagoon. She further performed a Secchi depth test, which measures the distance to which light will penetrate water, in the lagoon area. The background was measured at 42 inches. After the passage of a motorboat through the subject lagoon, the Secchi depth was reduced to 27 inches, and returned to the background level in 2-1/2 to 3 hours. Dr. Nicholson further testified that if the sediments "kicked up" were of an oxygen poor material, that they could scavenge dissolved oxygen from the waters. Protestors offered no evidence, however, which equated the Secchi depth test with the tests and standards established by DER for turbidity and transparency. There was no evidence, assuming turbidity did increase during boat activity, that DER standards for turbidity and transparency would be violated. Further, no evidence was introduced that such turbidity would cause or contribute to a degradation of the dissolved oxygen levels of the lagoon below DER standards. Contrary to the testimony of Dr. Nicholson, Protestors' other witness, William Doherty, a resident of the Surf Colony complex testified that he had operated his own 28 foot boat in the lagoon, and observed other boats operating in the lagoon, and never observed any increased turbidity. Terri Kranzer testified to the same effect. The depth within the lagoon is adequate for navigation, and there should be no increased turbidity caused by boats operating in the lagoon unless they venture into the shallow cove in the northwestern part of the lagoon. Designating the lagoon as a "No Wake" zone, and prohibiting navigation within the shallow cove, would provide reasonable assurances that there would be no increased turbidity associated with the proposed facility or its operation. Finally, Protestors suggest that if the proposed facility is permitted, DER's standard for Biological Integrity, Rule 17-3.111(4), F.A.C., will be violated. Dr. Nicholson conducted a sampling of benthic macroinvertebrates on the bulkhead of the lagoon and on the bulkhead of a nearby yacht basin, in order to calculate a Shannon-Weaver diversity index for both areas. The Shannon-Weaver index for the yacht basin reflected a level of benthic macroinvertebrates of less than 75 percent of that measured in the lagoon. The results of Dr. Nicholson's sampling are not, by her own admission, statistically significant. The lagoon and yacht basic are entirely dissimilar. The lagoon, with its diverse mangrove forests and large opening into Water Turkey Bay flushes well and is an area rich in biology. The yacht basin, on the other hand, is connected to Water Turkey Bay by a small channel and is completely bulkheaded. No valid comparison can be drawn between the lagoon and the yacht basin.
Findings Of Fact The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
The Issue The issues to be resolved in this proceeding concern whether the applicant for the dredge and fill permit at issue has provided reasonable assurances that the project involved will comport with state water quality standards and public interest standards for purposes of Section 403.918(1)&(2), Florida Statutes. Specifically, it must be demonstrated that the applicant has provided reasonable assurances that the project is clearly in the public interest for purposes of Section 403.918(2), Florida Statutes, and related rules; whether Citrus County has standing to challenge the project; and whether the Department is required or authorized to enforce the provisions of the Citrus County Comprehensive Plan.
Findings Of Fact Kline filed an application for grant of a permit to construct a private boat dock with a roof, designed to cover a boat, in the Withlacoochee River. The Department has permitting jurisdiction, pursuant to Chapter 403, Florida Statutes, and related rules, inasmuch as the Withlacoochee River is a natural water body designed as Class III waters of the state, as well as an Outstanding Florida Water. The landward extent of the Department's jurisdiction is the wetland line depicted in Kline's exhibits 1 and 2 in evidence and in the testimony of Rose Poynor. The proposed installation consists of a private boat dock with boathouse or cover measuring 22 feet by 43 feet mounted on 12-inch diameter pilings. The boat cover roof would be approximately 14 feet above the surface of the Withlacoochee River at mean high tide. Portions of a presently- existing dock will be removed, leaving behind a walkway and terminal platform 6 feet wide and extending 6.5 feet from the wetland jurisdictional line out to the boat cover facility. The dock presently extends 6.5 feet from the wetlands jurisdictional line riverward. The existing dock shades the shoreline, including a non- jurisdictional area on the top of the bank. Kline proposes to remove a portion of this existing dock consisting of an area 10.75 feet by 12 feet on one side of the line and approximately 10.75 feet by 5 feet on the other side. This will include removing portions of the existing dock landward of the jurisdictional wetland line. The shoreline area that will be exposed upon removal of portions of the existing dock will be replanted with native plant species. The entire length of Kline's shoreline along the top of the existing bank will be cleared of nuisance species and planted with the required number of native plant species delineated in specific condition #18 of the intent to issue. More plants will be planted as necessary in order to maintain a 90 percent survival density of the required plants over a five-year period as specified in specific condition #21. Kline will also grant a perpetual conservation easement to the Department for the entire length of the shoreline extending a minimum of 4 feet waterward from the top of the bank. The conservation easement will insure protection of the planted shoreline and prevent any opportunity of shoreline hardening through construction of a seawall or other structures. The project will be constructed using best management practices for erosion control, including having the pilings driven from a barge over a period of three to five days so as to minimize the generation of turbidity. A floating turbidity curtain will also be used so as to surround the entire project area to prevent migration of turbidity off the site and which will not interfere with navigation. The total construction time is estimated to be three weeks. During construction, specific actions will be taken to avoid any impacts to manatees traveling the Withlacoochee River near the property. A turbidity curtain will not block manatee entry or exit from essential habitat and will be made of material in which manatees cannot become entangled or injured. Boats in the project area will operate at "no wake/idle speeds" at all times. Upon the sighting of a manatee, all construction activities will cease until the manatee has left the project area. Logs and details of manatee sightings will be maintained and reported to the Department's Marine Mammal Section. During construction, temporary signs will be installed and maintained; and after completion of the project, permanent signs and a permanent informational display will be located in areas specified by the Department's Marine Mammal Section. The specific actions to be taken to avoid impacts to Manatees during construction were developed by the Department's Marine Mammal Section and are imposed on the proposed project in specific condition #13 of the intent to issue as a condition upon a grant of the permit, and Kline has agreed to these conditions. Kline's property is located on the Withlacoochee River in Inglis, Levy County, Florida. The proposed project extends waterward of Kline's shoreline and the waterward portion of the project is located within the boundaries of Citrus County. Kline's property is approximately 7 to 8 miles from Yankeetown, which is downstream on the Withlacoochee River from Inglis. Yankeetown is located on the lower reaches of the Withlacoochee River near the point where it enters the Gulf of Mexico. The U.S. 19 Highway bridge is 900 to 1,000 feet upstream of the Kline property. Kline's shoreline is relatively steep with areas of exposed limestone. Vegetation along that shore consists of red maple, laurel oak, and other identifiable wetland species. Water depth drops off relatively quickly varying from 6 to 10 feet at the edge of the existing dock. The river is approximately 121.5 feet wide at the project site. The project's construction will extend approximately 21.7 percent of the width of the river at the project site after completion. On the opposite shore from the Kline property and project site, there is also a boat dock with a small boat basin which was dredged landward into the river bank at some time in the past. On the opposite shoreline, a fallen log projects into the river which does impede navigation to some extent on that side of the river but it is an easily removable obstruction. The log presently remains just below the water surface at high tide. The Cross Florida Barge Canal and spillway are located approximately 2 miles upstream from the Kline property and eastward from the U.S. 19 bridge. An island exists in the river around a bend downstream from the Kline property. The island prevents the passage of boats larger than 16-foot beam around the island and upriver toward the Kline property. The Withlacoochee River is a slow-moving, tannic-acid tinged river and historically was extensively shaded by a tree canopy. In the last half century or so, many of the trees have been removed to accommodate shoreline development which is characterized primarily by vacation homes, weekend retreats, and retirement homes with attendant docks, boathouses, seawalls, and similar private river and boat access facilities serving residential owners. The docks and boathouses existing in the river occur on both sides of the river from the Gulf of Mexico up at least as far as the U.S. 19 bridge. The historical character of the river has thus changed in the last several decades such that extensive numbers of docks, seawalls, boathouses and residences presently characterize the river margin. Water Quality Impacts The water quality impacts of this project will be minimal. The dock and boathouse installation will be placed upon pilings inserted into the river bottom. Installation of the pilings during construction will cause some temporary turbidity. The temporary turbidity that may be occasioned as a result of installation of the pilings will last only a few days at most, and a turbidity curtain will be used to control the turbidity, to prevent it from disbursing over a large area of the river. Turbidity curtains are a well- recognized, proven method for minimizing short-term water pollution violations due to turbidity occasioned by the setting of pilings for such projects. Requiring the applicant to re-vegetate the shoreline and maintain the natural vegetation will enhance natural shoreline pollution up-take processes, as well as erosion prevention. Water quality will be maintained, therefore, and possibly improve somewhat at the site after the re-vegetation of the shoreline and littoral margin. No other water quality parameters were shown to be potentially violated by the installation proposed. So long as no boat maintenance operations which involve the potential spillage of oils and greases, solvents, or bottom paint into the water are practiced, no violations were shown to potentially occur. The permit, if granted, should be restricted against such activities. Public Interest Standards and Considerations The issues and inquiry concerning the public interest standards as to this project related to the question of impacts on recreational uses of the river and navigational uses, as well as the issue of any impacts on manatees. The Department's biology expert, as well as manatee experts presented by the Intervenor, established that the Withlacoochee River is frequented by manatees, but is not a warm-water habitat for manatees. Manatees use the Withlacoochee River during the spring and summer months, but rarely during the winter because it is not a warm-water habitat. The river has been designated as an essential habit for manatees, however. This means that the area is used by them as a food source and as a breeding and rearing area. Although manatees have been seen throughout the length of the river and the immediate vicinity of the project site, the animals mostly use the estuarine mouth or lower reaches of the river. The project on the Kline property is approximately 8 miles upstream from the mouth of the river. There is no question that boats pose definite hazards to manatees through striking manatees with boats and propellers. Boats have been the cause of manatee deaths in Citrus County in the past. Manatees are an endangered species. The Withlacoochee River currently has speed zone regulations involving the requirement of boat operation with no wake, and Citrus County imposes certain dock design criteria on residents seeking to construct new boat docks. The Intervenor's manatee experts participated in the development of these dock design criteria and agree that general adherence to these criteria minimizes potential impacts on manatees. The expert witnesses produced by the Intervenor were mainly concerned with projects of this type causing possible impacts on manatee travel patterns if the dock projects too far from the shore, as well as potential loss of food sources from shading of the water bottom and the question of attendant boats adhering to speed zone regulations. The evidence establishes that the proposed dock will not exceed in a significant way the dock design criteria which the manatee experts agree would minimize any potential impacts on the animals. The experts testifying for the Intervenor had never visited the proposed project site and are unable to do more than make general observations and conclusions regarding any potential adverse impacts to manatees that the proposed project might have. One of the Intervenor's witnesses agreed, however, that the removal of portions of the existing dock structure would help revitalize aquatic vegetation to increase sunlight penetration which would benefit shoreline vegetation and the manatee habitat. The proposed project was shown not to affect manatee travel patterns and it will not have adverse shading impacts on aquatic vegetation due to the design of the facility, which will allow maximum sunlight penetration of the water column. Appropriate speed zones will be maintained during and after construction with the aid of signage warning Kline and the boating public of the need to adhere to "manatee friendly" boat operation practices. The testimony of both Kline and the Petitioner's witnesses establishes that both residents along the river and visitors frequently boat on the Withlacoochee River and there is a significant amount of boat traffic. Certain geographical restrictions such as river width, already existing dock and boathouse structures, the U.S. 19 Highway bridge, and the island between the Kline's property and the mouth of the river at Yankeetown act to limit the size of boats that can traverse this section of the river, as well as their speed. The witnesses agreed that two 16-foot beam boats could safely pass each other in front of the Kline dock even after completion of the project. The proposed project will be visibly marked with reflectors around its entire parameter with a minimum of one reflector on each piling as required by specific condition #15 in the intent to issue the proposed permit. Testimony from licensed boat captains presented by both the Petitioner and Kline establishes that reflectors are a normal requirement and are adequate for structures of this type and size. Kline presented evidence from a longtime native of Inglis, Bill Hart, that a structure with similar dimensions to the proposed project is located in the river at a point where the river is only 95 feet wide, significantly narrower than the width at the project site and yet does not obstruct navigation. That structure also is marked with reflectors and was shown not to pose a hazard to navigation. Witnesses adduced by Petitioner expressed concern that during high tide, the Kline's boat would be moored outside the boat cover and further decrease the river width available for navigation. The evidence showed, however, that Kline's boat would only be moored at the designated mooring location as required by specific condition #14 of the intent to issue. If necessary, Kline will be required to move the boat and anchor it down the river in an area of sufficient width if it should prove that his boat cannot be accommodated under the boat cover during some high tide conditions. Petitioner's witnesses also expressed concern that boats could not turn around in front of the Kline property when the installation is completed. The evidence showed, however, that boats can travel downstream and turn at the island or travel upstream to the U.S. 19 bridge. The U.S. 19 bridge pilings are approximately 20 feet apart which allows easy boat passage between them. The presence of Kline's boat will not represent any increase in boating traffic on the river. The previous owners of the same property used an existing dock to moor their boat. The evidence establishes that the proposed project will not cause a serious impediment to navigation more than is already the case and will not constitute a navigational hazard. The Petitioner's witnesses also expressed fears concerning reduction in the aesthetic quality of the view of the river and its banks. The river still enjoys some portion of tree canopy but is now largely characterized by man-made structures along both banks. Most residents in the vicinity of the Kline property already have docks, seawalls and/or boathouses. The installation of the proposed dock and boathouse or cover will not in any significant degree further impair the aesthetic quality of the view of the river and its banks from its present character. Cumulative Impacts Testimony from the Intervenor's expert witnesses showed concern regarding cumulative impacts of the proposed project on manatees and the "precedent" of granting Kline a permit. The Intervenor's witness feared that many people would apply for more boat docks on the Withlacoochee River and that Kline's project would set a bad precedent, if granted, as to cumulative impact. No evidence was presented to substantiate these concerns, however, and there was no showing that more such permit applications are pending before the relevant regulatory agency. The Department's expert witness established that no cumulative impacts could be expected from this project with regard to water quality, as well as the various public interest standards embodied in Section 403.918(2),(1-7), Florida Statutes. The Department itself has not received any other applications for similar projects in the vicinity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection directing that the Respondent/applicant, William Kline's application for the above-referenced dock terminal platform and boat cover be granted under the conditions found hereinabove and contained in the intent to issue. DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-264 Petitioner's Proposed Findings of Fact The Petitioner does not state separate proposed findings of fact. Any proposed factual findings are inextricably entangled with extensive argument on the quantity and quality of testimony and other evidence and attempts to argue the Petitioner's position from the standpoint of documents referenced in the proposed findings of fact without an indication whether those documents are admitted into evidence or not. The Recommended Order can only be based upon testimony and evidence actually admitted and subject to cross-examination at hearing. The relevant and material issues raised in this case are delineated in the Recommended Order and have been fairly addressed and ruled upon and to the extent that the Petitioner's proposed findings of fact are in agreement with the findings of fact enunciated by the Hearing Officer, they are accepted. To the extent that they are not they are subordinate thereto and not supported by preponderant evidence and are rejected. Citrus County (Intervenor) Proposed Findings of Fact 1. Accepted to the extent not inconsistent with the findings of fact made by the Hearing Officer concerning standing. 2. Accepted to the extent not inconsistent with the findings of fact made by the Hearing Officer concerning standing. 3-7. Accepted. 8. Rejected, as irrelevant and immaterial. This is a de novo proceeding and the evidence adduced by a party, including the Department of Environmental Regulation, now known as the Department of Environmental Protection, at hearing and subject to cross-examination, is the only evidence or information upon which findings of fact and conclusions of law may be made. 9-10. Rejected, as irrelevant and immaterial. This is a de novo proceeding and the evidence adduced by a party, including the Department of Environmental Regulation, now known as the Department of Environmental Protection, at hearing and subject to cross-examination, is the only evidence or information upon which findings of fact and conclusions of law may be made. 11. Rejected, as not in accord with the preponderant weight of the evidence and for the reason that these are de novo proceedings and the quantity, quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding. 12. Rejected, as not in accord with the preponderant weight of the evidence and for the reason that these are de novo proceedings and the quantity, quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding. 13-14. Rejected, as immaterial and irrelevant in this de novo proceeding involving Chapter 403, Florida Statutes, and rules promulgated thereunder. Accepted, but not itself materially dispositive of the issues to be adjudicated in this proceeding. Accepted, but not materially dispositive of the issues material and relevant to adjudication of this proceeding. Rejected, in accordance with the ruling on motion in limine in this proceeding as immaterial, as not supported by the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact. The competent, substantial evidence of record adduced at the hearing shows that the water quality considerations and public interest considerations embodied in Section 403.918(1)&(2), Florida Statutes, Section 403.919, Florida Statutes, and rules promulgated thereunder will be complied with by the project, as it is described in the evidence adduced at hearing. Rejected, as contrary to the preponderant weight of the credible evidence. Respondent Kline's Proposed Findings of Fact Any proposed findings of fact contained in the "Recommended Order" submitted by Respondent Kline cannot be separately and independently ruled upon. The document denominated "Recommended Order" submitted by Respondent Kline contains discussion and argument concerning the quantity and quality of the testimony in evidence, legal argument and, at best, is a discussion of the testimony of various witnesses, rather than coherent proposed findings. Therefore, the proposed findings of fact submitted by Respondent Kline to the extent they are proposed findings of fact are rejected as being incapable of coherent, cogent, separate rulings. Respondent Department of Environmental Regulation's Proposed Findings of Fact The proposed findings of fact submitted by the Department of Environmental Regulation, now known as the Department of Environmental Protection, to the extent they are consistent with the proposed findings of fact of the Hearing Officer are accepted. To the extent that those proposed findings of fact are inconsistent with those made by the Hearing Officer on the same issues and subject matter, they are rejected as being subordinate thereto or immaterial or not in accord with the preponderant weight of the evidence. COPIES FURNISHED: Mrs. Sarah Berger Post Office Box 83 Inglis, Florida 34449 William A. Kline, Jr. 398 South Inglis Avenue Inglis, Florida 34449 Francine M. Ffolkes, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard W. Wesch, Esquire Assistant County Attorney 107 North Park Avenue, Suite 8 Inverness, Florida 34450 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.
Findings Of Fact Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.
The Issue The issue is whether Respondent Koreshan Unity Foundation, Inc., is entitled to a environmental resource permit for the construction of a wooden footbridge over the Estero River east of U.S. Route 41 and authorization to obtain by easement a right to use sovereign submerged lands.
Findings Of Fact Respondent Koreshan Unity Foundation, Inc. (Koreshan) is a not-for-profit corporation dedicated to the preservation of the Koreshan heritage. Koreshan derives its heritage from a largely self-sufficient community that occupied land in south Lee County. For several years, Koreshan has owned a parcel of 14.56 acres at the southeast corner of U.S. Route 41 and the Estero River. This parcel is bounded on the south by Corkscrew Road and contains an amphitheater and historical house, midway between the river and Corkscrew Road. The south end of this parcel contains a museum and parking area with access to Corkscrew Road. The approximate dimensions of the 14.56-acre parcel are 544 feet along the river, 496 feet along Corkscrew Road, and about 1273 feet along the west and the east property lines. The west property line is U.S. Route 41. The right-of-way for U.S. Route 41 is wider at the southern two-thirds of the parcel than the northern one-third of the parcel. A sidewalk runs on the east side of U.S. Route 41 from north of the river, across the U.S. Route 41 bridge, along the west boundary of Koreshan's property, at least to an entrance near the middle of the 14.56-acre parcel. In October 1996, Koreshan acquired 8.5 acres of land at the northeast corner of the U.S. Route 41 and the river. The purpose of the acquisition was to provide parking for persons coming to Koreshan-sponsored events, such as music performances, at the 14.56-acre site. Koreshan rents a small portion of this northerly parcel to a canoe-rental business, which operates where the bridge and river meet. To assist their visitors-some of whom are elderly and disabled--in gaining access to the 14.56-acre site, on November 26, 1996, Koreshan filed an application for a permit and authorization to construct a wooden footbridge across the Estero River about 315 feet east of the U.S. Route 41 bridge. The source of the Estero River is to the east of the U.S. Route 41 bridge and the location of the proposed bridge. After passing under the U.S. Route 41 bridge, the river runs along the Koreshan state park, which is a short distance east of U.S. Route 41, before it empties into the Gulf of Mexico at Estero Bay, which is a state aquatic preserve. The portion of the river at the site of the proposed bridge is an Outstanding Florida Waterway (OFW) and a Class III water. The river is popular with canoeists and kayakers. Persons may rent canoes and kayaks at the canoe rental business operating on the 8.5-acre parcel or the Koreshan state park. Although most canoeists and kayakers proceed downstream toward the bay, a significant number go upstream past the U.S. Route 41 bridge. Upstream of the bridge, the river narrows considerably. Tidal currents reach upstream of the U.S. Route 41 bridge. At certain tides or in strong winds, navigating a canoe or kayak in this area of the river can be moderately difficult. Even experienced canoeists or kayakers may have trouble maintaining a steady course in this part of the river. Less experienced canoeists or kayakers more often have trouble staying on course and avoiding other boats, the shore, vegetation extending from the water or shoreline, or even the relatively widely spaced supports of the U.S. Route 41 bridge pilings, which are about 30 feet apart. Mean high water is at 1.11 feet National Geodetic Vertical Datum. The deck of the proposed footbridge would be 9 feet, 6 inches wide from rail to rail and 16 feet wide in total. The proposed footbridge would extend about 180 feet, spanning 84 feet of water from shore to shore. The bridge- ends would each be about 50 feet and would each slope at a rate of 1:12. The proposed footbridge would rest on nine pilings: four in the uplands and five in the submerged bottom. The elevation of the bottom of the footbridge from the water surface, at mean high water, would be 8 feet, 8 inches. The distance between the centers of the pilings would be 14 feet, and each piling would be of a minimum diameter of 8 inches. According to a special permit condition, the pilings would be treated with chromated copper arsenate, as a preservative, but they would be wrapped in impermeable plastic or PVC sleeves so as, in the words of the proposed permit, "to reduce the leaching of deleterious substances from the pilings." The proposed permit requires that the sleeves shall be installed from at least 6 inches below the level of the substrate to at least 1 foot above the seasonal highwater line and shall be maintained over the life of the facility. The proposed permit also requires that the footbridge be limited to pedestrian traffic only, except for wheelchairs. The permit requires the applicant to install concrete-filled steel posts adjacent to the bridge to prevent vehicles from using the bridge. The proposed permit requires that Koreshan grant a conservation easement for the entire riverbank running along both shorelines of Koreshan's two parcels, except for the dock and boat ramp used by the canoe-rental business. The proposed permit also requires Koreshan to plant leather fern or other wetland species on three-foot centers along the river banks along both banks for a distance of 30 feet. The proposed permit states that the project shall comply with all applicable water quality standards, including the antidegradation permitting requirements of Rule 62-4.242, Florida Administrative Code. Respondents did not raise standing as an affirmative defense. It appears that Petitioners or, in the case of corporate Petitioners, members and officers all live in the area of the Estero River and use the river regularly. For instance, Petitioner Dorothy McNeill resides one mile south of the proposed bridge on a canal leading to the Estero River, which she uses frequently. She is the president and treasurer of Petitioner Estero Conservancy, whose mission is to preserve the Estero River in its natural state. Petitioner Ellen W. Peterson resides on Corkscrew Road, 300-400 feet from the proposed footbridge. For 26 years, she has paddled the river several times weekly, usually upstream because it is prettier. She formerly canoed, but now kayaks. The record is devoid of evidence of the water- quality criteria for the Estero River at the time of its designation as an OFW or 1995, which is the year prior to the subject application. Koreshan has not provided reasonable assurance that the proposed footbridge would not adversely affect the water quality of the Estero River. Although the site of the proposed footbridge is devoid of bottom vegetation and there is no suggestion that this is anything but a natural condition for this part of the riverbottom, there is evidence that the proposed footbridge would adversely affect the water quality in two respects: turbidity caused by the pilings and leaching from the chromated copper arsenate applied to the pilings. The turbidity is probably the greater threat to water quality because it would be a permanent factor commencing with the completion of the installation of the pilings. The leaching of the heavy metals forming the toxic preservative impregnated into the pilings is probable due to two factors: damage to the PVC liner from collisions with inexperienced boaters and high-water conditions that exceed 1 foot over mean high water and, thus, the top of the liner. Both of these factors are exacerbated by flooding, which is addressed below. Koreshan also has failed to provide reasonable assurance that the proposed footbridge is clearly in the public interest under the seven criteria. The proposed footbridge would adversely affect the public health, safety, or welfare and the property of others through exacerbated flooding. South Lee County experienced serious flooding in 1995. In response, Lee County and the South Florida Water Management District have attempted to improve the capacity of natural flowways, in part by clearing rivers of snags and other impediments to flow, including, in the case of the Imperial River, a bridge. One important experience learned from the 1995 floods was to eliminate, where possible, structures in the river, such as snags and pilings, that collect debris in floodwaters and thereby decrease the drainage capacity of the waterway when drainage capacity is most needed. Longer term, the South Florida Water Management District is considering means by which to redirect stormwater from the Imperial River drainage to the Estero River drainage. The addition of five pilings (more as the river rose) would exacerbate flooding. On this basis alone, Koreshan has failed to provide reasonable assurance. Additionally, though, the HEC II model output offered by Koreshan does not consider flooding based on out-of-banks flows, but only on the basis of roadway flows. In other words, any assurances as to flooding in the design storm are assurances only that U.S. Route 41 will not be flooded, not that the lower surrounding land will not be flooded. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect the conservation of fish and wildlife, for the reasons already stated with respect to water quality. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect navigation or the flow of water. The flow of water is addressed above. Navigation is best addressed together with the next criterion: whether the proposed activity would adversely affect fishing or recreational values or marine productivity in the vicinity of the activity. Despite the presence of only two public launch sites, boating is popular on the Estero River. Reflective of the population growth of Collier County to the south and the area of Lee County to the north, the number of boaters on the Estero River has grown steadily over the years. The canoe- rental business located on the 8.5-acre parcel rented canoes or kayaks to over 10,000 persons in 1996. Many other persons launched their canoes or kayaks for free from this site and the nearby state park. Lee County businesses derive $800,000,000 annually from tourism with ecotourism a growing component of this industry. The Estero River is an important feature of this industry, and the aquatic preserve at the mouth of the river and the state park just downstream from the proposed footbridge provide substantial protection to the scenic and environmental values that drive recreational interest in the river. It is unnecessary to consider the aesthetic effect of a footbridge spanning one of the more attractive segments of the Estero River. The proposed footbridge and its five pilings effectively divide the river into six segments of no more than 14 feet each. This fact alone diminishes the recreational value of the river for the many canoeists and kayakers who cannot reliably navigate the U.S. Route 41 bridge pilings, which are more than twice as far apart. As to the remaining criteria, the proposed footbridge would be permanent and the condition and relative value of functions being performed by areas affected by the proposed activity is high. There is conflicting evidence as to whether the proposed footbridge would adversely affect the remnants of an historic dock, but it is unnecessary to resolve this conflict. The mitigation proposed by Koreshan does not address the deficiencies inherent in the proposed activity.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner Council of Civic Associations, Inc., and denying the application of Respondent Koreshan Unity Foundation, Inc., for an environmental resource permit and authorization to obtain an easement for the use of sovereign land. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Kathy Malone Vice President and Treasurer Council of Civic Associations, Inc. Post Office Box 919 Estero, Florida 33919-0919 Reginald McNeill Dorothy McNeill, President Estero Conservancy, Inc. 26000 Park Place Estero, Florida 33928 Mark E. Ebelini Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Phyllis Stanley, President 12713-3 McGregor Boulevard Fort Myers, Florida 33919 Cathy S. Reiman Cummings & Lockwood Post Office Box 413032 Naples, Florida 34101-3032 Francine M. Ffolkes Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of 5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner. DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed findings None submitted. Respondent's Proposed findings 1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, legal conclusion. 10.-11. Accepted. Rejected, unnecessary. Accepted. Rejected, unnecessary. 15.-22. Accepted in substance. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Foster F. Burgess, Route 1 Box 97-C4 Freeport, Florida 32439 Donna M. LaPlante Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the application of Respondents Linda J. and Shirley Ann Brooks for a dredge and fill permit at property located in Levy County, Florida, should be approved, pursuant to Chapters 253 and 403, Florida Statutes, and PL 92-500. At the hearing, the applicants presented the testimony of two witnesses and submitted four exhibits in evidence. Petitioners presented the testimony of four witnesses and submitted five exhibits in evidence. Respondent Department of Environmental Regulation called two witnesses and submitted ten exhibits in evidence. Petitioners and Respondents (applicants) have submitted posthearing final argument which include proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact On January 30, 1984, a Joint Application of the Department of the Army/Florida Department of Environmental Regulation was filed by Shirley Ann Brooks and Linda J. Brooks to construct an 8 foot by 25 foot deck to a proposed addition to a one-bedroom residential building on their water front property on Jackson Island which is located within the city limits of Cedar Key, Florida. The existing house had a deck over the intertidal zone and a dock extending out from the deck approximately 44 feet. The applicants' father, Bernard T. Brooks, Jr., had sought building permits from the local zoning officials of Cedar Key in 1983, which brought the project to the attention of Petitioners Grover S. and Pearl J. Book and Richard M. and Lola Roppel who own property across from but inland of the applicants' lot. They attended the local zoning hearings involving the project. Roppel also observed the applicants' contractor, Floyd Taylor, cutting vegetation and piling it on Roppel's adjacent leasehold area. Complaints from Roppel to DER prompted one of the agency's environmental specialists, Gene Medley, to meet with Bernard Brooks and Taylor in January 1984 concerning the need for permits and to designate the departmental line of jurisdiction based on its regulatory vegetative index. He determined that the line of jurisdiction was at a point five feet landward of the waterward end of the existing deck and made it known to Brooks that the proposed project would require a departmental permit. The water classification of the project area is Class III. (Testimony of B. Brooks, Medley, Taylor, Roppel, DER Exhibits 1, 7, Respondent's Exhibit 2) In February 1984, the applicants obtained the local building permits and the contractor cleared the land and commenced construction. Medley visited the site on March 26, 1984, to inspect the project and prepare a permit application appraisal. He found that construction had already begun on the house and that one piling had been placed for the proposed new deck which was located about ten to fifteen feet beyond the existing old deck. Medley told the contractor to stop construction since a permit had not been issued. Although Taylor, the contractor, agreed to the request, when Medley visited the property again on April 23, he observed that a concrete retaining wall had been constructed. In addition, sand fill material in an indeterminate amount had been placed on the project site. Prior to this visit, Medley had recommended that the project be disapproved in that the construction of a deck over the existing intertidal marsh vegetation would reduce primary productivity by the limitation of light available for photosynthesis. He had found that the vegetation inhabitating the intertidal zone at the project site consisted of a fifteen to twenty foot band of spartina alterniflora and sparse numbers of black mangrove and black rush at the landward edge of the spartina. Above the spartina, he had observed a ten to fifteen foot band of sea purslane forming a dense ground cover. Such vegetation along the shoreline served several ecological functions by stabilizing the land to prevent erosion and providing an energy source in the estuarine food web, plus a habitat for aquatic and semiaquatic organisms. Medley had further found that water quality would be adversely impacted by the construction of the deck since the plants and organic sediments trapped by the plants assimilate and filter pollutants from upland runoff as well as pollutants found in the water column. This recommendation was adopted by the Department which issued an Intent to Deny notice to the applicant on April 12, 1984. The Department of Natural Resources expressed no objection to the project in its letter of March 13, 1984. However, a representative of the Corps of Engineers visited the site on April 10, 1984, and found that a retaining wall and fill material had been placed below the mean high waterline to an extent of approximately 6 to 8 feet, and that pilings had been placed inside the wall. The contractor was informed that this was a violation of pertinent law and that all work should be stopped. Thereafter, by letter of April 17, 1984, the Corps of Engineers issued a Cease and Desist Order to the applicants to preclude them from further activity involving the placement of a building and fill material in a wetland as well as navigable waters. The applicants! permit application was returned by the Corps of Engineers with the statement that it would not be processed until the enforcement matter had been resolved. On April 30, 1984, representatives of DER and the Corps of Engineers met with Mr. Brooks and the contractor. The applicant agreed to remove the retaining wall and all fill material, and grade the area to the adjacent wetland elevation. The retaining wall was thereafter moved and the sand fill placed in the upland area. A small amount of the footing of the wall was not removed. The wall was reconstructed at a point some 5 feet landward from its original position. Although the building overhang is within the jurisdiction of DER, it does not impact significantly on the vegetation in that sufficient light is available to permit photosynthesis. In the opinion of DER experts, the project will eliminate some 75 square feet of transitional vegetation, but this loss will not degrade water quality or other natural resources to such an extent as to be contrary to the public interest. Petitioner Roppel is of the opinion that the shaded area is considerably more extensive than that calculated by Departmental personnel, but the latter's estimate and conclusions are accepted as more persuasive in the light of all the circumstances. Petitioner Roppel also submitted photographs showing that fill material had been removed from the project site and claimed that it had migrated into the adjacent waters to such an extent as to affect water depth at his nearby dock. Although it is evident that some unstabilized fill material was washed into the water, there was insufficient evidence provided as to the extent of the erosion or as to any impact it might have had on water quality or marine resources. At the time of hearing, the area in front of the new wall had revegetated to some extent. Petitioners' expert, Dr. Howard T. Odum, is a recognized authority on the subject of wetlands ecology. However, his brief visit to the site on the day before the hearing resulted only in an opinion that shading had done "some impacting," but he was unable to state if the project violated state water quality standards. Although his opinion as to the cumulative adverse impacts of small projects on marine life is undoubtedly correct, insufficient evidence was presented as to the extent of such impacts at the project area to warrant a finding in this regard concerning the instant project. (Testimony of B. Brooks, Taylor, Medley, Melberg, Roppel, Odum, Tyler, DER Exhibits 2, 4-5, 7-10, Respondents' Exhibits 3-4, Petitioners' Exhibits 1-5) As a result of the applicants' revision of its application on May 1, 1984, which eliminated the concept of a new deck and left only a 3 foot by 25 foot portion of the new residential building within state waters, DER issued a Notice of Intent to issue the requested permit/water quality certification for the revised project on May 18, 1984. The notice reflected that the part of the new addition to be waterward of the apparent mean high waterline would be supported by three pilings and result in covering by the structure of approximately 75 square feet of sparse marsh vegetation. The notice further stated that although such shading would impact the vegetation, it would not eliminate it or its function of maintaining water quality by its assimilative capacity. The notice further indicated that the Department was satisfied that reasonable assurances had been provided that the short-term and long-term effects of the proposed activity would not result in the violation of cater quality standards, or interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, or create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. Finally, the notice indicated that the permit would be issued with conditions to provide for turbidity controls during construction and that all fill placed on uplands should be stabilized in a manner to prevent any erosion into waters of the state. On June 4, 1984, the Corps of Engineers issued its permit to the applicants for the placement of 3 support pilings and construction of a residential structure extending 4 feet waterward of the mean high waterline. (Testimony of Medley, Tyler, DER Exhibit 6, Respondent's Exhibit 1)
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should issue to Century Realty Funds, Inc. (Century) Environmental Resource Permit (ERP) No. 44000227.002 (the ERP), which would modify Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 (the Permit) and Stormwater Exemption No. EO1481, issued by the District to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park located in Mulberry, Polk County, Florida.
Findings Of Fact The District issued Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park (MHP) located in Mulberry, Polk County, Florida. Angler’s Green MHP Angler’s Green MHP is an 83-acre residential golf course development of approximately 385 homes located off of State Road 37 near Mulberry. Residents at Angler’s Green own their own mobile homes and lease the residential lots pursuant to annual leases expiring December 31 of each year, with guaranteed renewal conditioned upon owner compliance with the terms and conditions of the lease. Prior to being developed as a mobile home park, the property which is now Angler’s Green MHP was part of a phosphate mining operation and was reclaimed under a phosphate mining land reclamation plan approved by the Florida Department of Natural Resources and a reclamation contract dated September 4, 1984. Final contours of the Angler’s Green site were made in accordance with the approved reclamation plan. After reclamation contouring, a 23-acre manmade (former phosphate mine pit) lake remained in the northeast quadrant of the Angler's Green site. The resulting lake had a finger arm (bay or cove) extending from the southwest corner of the main body of the lake, oriented in a north-to-south direction and located west of a peninsula of land extending into the northwest part of the lake from the north. The lake also had a short, narrow canal leading into the main body of the lake from the south; the canal connected at a right angle to longer narrow waterway to the south of and extending parallel to the main body of the lake in an east-to-west orientation. There also were two smaller ponds on the property after reclamation contouring. After reclamation, surface water onsite generally flowed westerly and discharged from the property to a railroad ditch along the western boundary of the property. The recorded post-reclamation, pre-development water level for the 23-acre lake, as indicated on the site grading plans, was around 127.1 to 127.8 feet above Mean Sea Level (M.S.L.). The 1985 Permits On July 10, 1985, the District issued MSSW Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century to authorize the construction of a surface water management system for Angler’s Green. The MSSW Permit had an expiration date of July 10, 1988. As designed, the permitted Angler’s Green surface water management system was to route internal stormwater runoff to swales, detention ponds, and catchment areas before discharging through a sidebank sand filtration system (a berm approximately 300 feet long containing an 8” perforated drain pipe covered by a filter fabric and sand filter material) to receiving waters at the northwest corner of the property. The permitted system was designed with five drainage areas known as Basins A through E. Basin A was in the southeast quadrant of the site; Basin B was to its east in the southeast quadrant of the site; Basin E was to the north of Basin A and included the 23-acre former phosphate mining pit reclaimed as an artificial lake, which was referred to as “Lake E” or sometimes “Pond E"; Basin C was to the west of Basin E; and Basin D was to the west of Basin C and to the north of Basin B. The two smaller ponds on the property were designated Pond C-1 and Pond B-1 and were located in Basin C and Basin B, respectively. Basin D was in the northwest corner of the site; the discharge structure was in the northwest corner of Basin D. As the system was designed, stormwater from Basin E would appear to sheet flow naturally into Lake E; stormwater from Basin A would appear to flow naturally to the southwest, away from Lake E, but the system routed the water from the southwest corner of Basin A to the western end of the waterway on Lake E through an underground pipe. Stormwater from Basin B was to flow to and be retained in Pond B-1; as the system was designed, surface water was not designed to discharge offsite from Basin B. As designed, Lake E served as a detention pond for water from Basin E and Basin A. It was to have a control structure (CS-1) in the arm of Lake E that would produce a seasonal fluctuation range of two feet, from 127.5’ above M.S.L. to 129.5’ above M.S.L. Stormwater discharging from CS- 1 was to be conveyed by pipe to Pond C-1, where it was to mingle with surface water draining from Basin C. When full, Pond C-1 would cascade into the golf course area in Basin D and, as necessary, in a portion of Basin B. After catchment and detention in the golf course area, overflow was eventually and ultimately to discharge offsite through the side-bank sand filtration system in the northwest corner of Basin D. In this manner, the Angler’s Green surface water management system was designed to accommodate the 24-hour, 25- year storm event, which was estimated to produce approximately 8 inches of water in a 24-hour period. It also was designed to comply with the water quality requirements as specified in Florida Administrative Code Chapter 17-25 (1985 Ann. Supp.) by detaining the first half-inch of runoff before discharging it offsite through the sidebank sand filtration system in the northwest corner of Basin D. (All rule citations are to the Florida Administrative Code.) Omission of the Stangls During the review process, the District noted from drawings submitted as part of Century's MSSW Permit application that the project area did not include approximately the eastern third of the main body of Lake E. District staff brought this to Century's attention in a request for additional information (RAI) and stated: "If possible, you should obtain a perpetual right to operate and maintain the lake from other owners." In response, Century falsely represented to the District that L. Kirk McKay, a joint venture partner of Century, was the only riparian owner on Lake E and that Century had obtained from him a perpetual right to operate and maintain Lake E as part of the MSSW Permit. In fact, the Stangls owned property on the east side of the lake, including approximately 500 feet of lakefront and contiguous lake bottom. The Stangls and two partners purchased the property from McKay himself in 1979. The Stangls bought out their partners in 1984. The District relied on Century's misrepresentation. The District would not have issued the MSSW Permit to Century if the District had known that Century did not own or control all the land being used for the Permit--specifically, including all of Lake E. See Rule 40D-4.101(1)(d) and (2)(d)6. (1985) (application must include "evidence of ownership or control"). In addition, because the District was unaware of the Stangls' ownership of a portion of Lake E, the District did not require Century to give the Stangls direct, actual notice of the Century's permit application. Instead, the District only required that Century publish notice of the District’s receipt of the permit application. Notice was published on April 3, 1985, in the Lakeland Ledger, a newspaper of general circulation qualified under the terms of Section 50.011, Florida Statutes. But the Stangls did not see the published notice, were unaware of the permit application, and did not ask to participate in the permitting process. The Stangl property adjacent to Angler’s Green remained undeveloped and unoccupied until 1999, when the Stangls' son, John, established a business on the site. Prior to 1999, the Stangls visited the property a couple times a year. They were fully aware of the construction and operation of Anglers Green as a mobile home park across Lake E. During this time, Century leased 385 lots with guaranteed annual renewal conditioned only upon compliance with lease terms and conditions. Amenities under the leases included clubhouse and golf course privileges. At no time before 2000 did the Stangls take any action to challenge the validity of Century's 1985 MSSW Permit. 1985 Surface Water Management Permitting Requirements In 1985, permitting requirements for surface water management systems were divided between two regulatory schemes. Surface water management permits in Polk County were issued by the District under Chapter 373, Florida Statutes, and Rule Chapters 40D-4 and 40D-40, which addressed water quantity and flooding issues for projects greater than and less than 40 acres, respectively. Water quality permits or exemptions from water quality permitting requirements were issued by the Department of Environmental Regulation under Chapter 403, Florida Statutes, and Rule Chapter 17-25 to address water quality concerns. It was not until 1988 that permitting requirements were consolidated into the MSSW regulatory program administered by the District under Rule Chapters 40D-4 and 40D-40. In 1985, the District did not have a Basis of Review (BOR) to specify system design requirements for applicants to provide reasonable assurances that the conditions for issuance of surface water permits were satisfied. Standards and criteria for the design and performance of surface water management systems were contained in Rule 40D-4.301(2) (1985) Under subsection (2)(i) of that rule, projects designed to meet the requirements of Chapter 17-25 [Regulation of Stormwater Discharge] were presumed to meet applicable State water quality requirements. There were no requirements for wet detention pond littoral zones. 20. Under Rule 17-25.03(2)(b) (1985 Ann. Supp.), stormwater management systems for projects with drainage areas less than 100 acres that provided retention or detention with filtration of the first half-inch of runoff were exempt from the permitting requirements of Rule Chapter 17-25. 21. In 1985, District Rule 40D-4.301(2)(j) (1985) allowed for natural areas and existing water bodies to be used for stormwater retention or detention purposes when not in conflict with environmental or public use considerations. Areas that could be considered for this purpose included previously-degraded areas or man-made areas (such as borrow pits). Apparently, the District allowed Century to use Lake E as a detention pond under this provision. Deviations from MSSW Permit Angler’s Green MHP was constructed in two phases, with the first phase completed in 1985, and the second phase completed in 1987. Construction of at least the part of the surface water management system to serve the first phase took place prior to 1985; it was not clear from the evidence whether construction of the part of the surface water management system to serve the second phase also took place prior to 1985, but it clearly took place prior to construction of the second phase in 1987. Condition No. 4 of Century's MSSW Permit required the submittal of a certification that the system was constructed in accordance with the approved and permitted design. But Century did not provide any such certification. Century also never certified to the District that its new stormwater discharge facility, as constructed, continued to qualify for exemption from State water quality requirements. Although the surface water management system was constructed and operating, the District never transferred the 1985 Permit to the operation phase. In several respects, the Angler’s Green surface water management system was not constructed as designed, approved, and permitted in 1985. The pipe to convey stormwater from the southwest corner of Basin A back to the Lake E waterway apparently never was constructed; instead, stormwater from Basin A was routed to Pond B-1. (There also was a berm constructed in Basin A near the southern boundary of the site; but that berm apparently was a visual berm, and there was no evidence that it affected performance of the surface water management system.) Control structure CS-1 (which was supposed to be located in the arm or bay of Lake E) and the pipe to convey overflow from there into Pond C-1 also never were constructed. By the early 1990's, Angler's Green was experiencing flooding in the golf course area in Basin D and B for extended periods of time. In November 1993, the District responded to a complaint of flooding in that vicinity. Upon investigation, the District determined that malfunction of the surface water management system serving Reservation Lakes (now known as Paradise Lakes), a development to the north and downstream of the Angler's Green system, was causing water to back up through the wetlands and the sand filtration system in the northwest corner of the Angler’s Green project. As a result, water overtopped the discharge structure, equalized at levels above the top of the discharge structure's berm, and flooded the golf course for extended periods of time. At some undetermined point in time, an unpermitted pond was dug in Basin D, apparently in an attempt to alleviate flooding of the golf course. In addition, possibly for the same purpose, a pump was installed in Basin D near Pond C-1, and a pipe was installed to convey stormwater from there into Lake E. The sidebank sand filtration system designed to provide filtration of stormwater prior to discharge from the northwest corner of the site does not appear to exist today. It may be present but difficult to see after 15 years of plant growth; or it may have been removed or disturbed as a result of re-grading in the area. However, the evidence proved that the discharge structure was present in 1993, and there is no reason to believe that it was not installed during construction of the surface water management system--i.e., by 1987 at the latest. In addition, at some undetermined point in time, a pipe was installed at the northeast corner of Lake E to convey overflow from Lake E eastward to a drainage ditch located alongside SR 37 to the north of the Stangls' property. No witnesses could testify as to when the pipe to the SR 37 ditch was installed or its elevation. (The District and Century state in their PRO that Map No. 2 in P/I Exhibit 14--an aerial map/survey submitted to the District by Century on August 13, 1990, as part of Century's 1990 Water Use Permit No. 209993.000 application--notes the pipe's elevation as 127.95 feet above M.S.L.; but no such finding could be made from review of the exhibit.) Roads in Angler's Green have inverted crowns to convey runoff from roads, driveways, and roofs away from mobile home lots. Some runoff from these impervious surfaces appears to be directed into a swale on the east side of the site; this swale leads to Lake E. In addition, approximately 12 drains have been installed in or near roads in Angler's Green that convey water through pipes directly into Lake E or Pond C-1. Under current Rule Chapters 40D-4 and 40D-40, road drains connecting impervious surfaces to Lake E would have to be shown on application construction drawings, and separate stormwater calculations would have to be provided in an application. But in 1985 this was not required. Century's calculations, together with flow arrows on drawings showing the direction of stormwater flow towards the detention ponds, were considered sufficient--especially since Century's calculations used a relatively high runoff co-efficient. As a result, the existence of these drains and pipes are not considered to be substantial deviations from the original, approved design. Similarly, approximately 64 roof drains and pipes conveying water from roofs directly into Lake E and Pond C-1 would not be considered substantial deviations from the original, approved design. In addition, these apparently were installed by mobile homeowners over the years, not by Century. From 1985 to 2000, the District did not have occasion to address regulatory concerns at Angler’s Green, except for the complaint of flooding in the golf course area that occurred in November 1993 and a more recent complaint about an area of the golf course that was designed to flood under certain conditions. Otto Stangl’s Complaint and the District’s Response Around November 1999, John Stangl noticed a fish kill in the ditch along SR 37 near the Stangl property. He also was contacted by a governmental compliance officer concerning the fish kill. Upon investigating, John Stangl saw the unpermitted pipe leading from Lake E that was discharging into the SR 37 ditch where the fish kill was observed, as well as the unpermitted pump that was pumping water from the Angler’s Green golf course area through a pipe that discharged into Lake E. In February 2000, Otto Stangl complained to the District about the fish kill and the existence of the unpermitted structures associated with Lake E. Upon receiving Otto Stangl’s complaint, District staff conducted site visits of the Angler’s Green project. Staff observed the unauthorized pump and pipe conveying water from Pond C-1 to Lake E and the unauthorized pipe conveying water from Lake E to the SR 37 ditch. Staff also observed that the Lake E control structure was missing, the pipe to convey stormwater from Basin A to Lake E was missing, and Basin D had been re-graded. In February 2000, the District also became aware of the fact that Century did not have full ownership or control of Lake E. On March 15, 2000, the District issued Century Notice of Non-Compliance and directed Century to either construct the system as designed and permitted or to seek a permit modification. On May 8, 2000, Century submitted a letter application to modify the original MSSW Permit No. 400227.000 by constructing the originally permitted Lake E control structure and pipe conveying water from Lake E to Pond C-1, but in a different location in Lake E than originally permitted due to the existence of homes at the location where these structures were originally planned. The application was subsequently amended to be a formal modification upon Century’s request for further modification to allow Basin A stormwater to flow to Pond B-1 and to expand Pond B-1 and add a control structure and an effluent filtration system. Despite having actual knowledge since at least February 2000 that the Angler's Green surface water management system was built partially on their property, the Stangls did not ask for a hearing on the 1985 Permit. Instead, they awaited the District's consideration of Century's modification application and sought to challenge the District's notice of intent to grant the modification permit issued on October 29, 2001. The District’s Regulatory Compliance Practices In the 1980's, the District appeared to pay little or no attention to construction of permitted projects or submission of required post-construction certifications. Many projects permitted by the District in the 1980’s, such as Angler’s Green, were built and operating although no certifications had been submitted; as a result, the permits issued for these projects never were transferred to the operation phase. Eventually, some projects not built in compliance with issued permits came to the attention of the District, typically through third-party complaints about drainage problems and flooding. By this time, there was a large backlog of issued construction permits for which no required post-construction certifications had been submitted. The backlog of these older projects was so large that the District decided not to initiate an aggressive, systematic, and comprehensive review of all permits for which no required certifications had been submitted. Instead, projects were checked on an ad hoc basis as complaints regarding the functioning of their surface water management systems were registered. When it came to the attention of the District in this manner that a project had been built under an MSSW permit but that no required certifications had been submitted, the District first attempted to secure the required certifications in the form of certified as-built construction drawings and a Statement of Completion, as required by BOR 2.7. In so doing, it was common practice for the District to accept certifications beyond the expiration date on a permit. If projects were substantially completed, the District would not deem the permit as expired simply because the required certifications had not been submitted before the expiration date; and such projects did not lose their status as being permitted. It should be noted that, according to the testimony of the District's expert, William Hartmann, this agency practice was not based on an interpretation of Rule 40D- 4.321(1)(b) (1985) (on duration of construction permits). Rather, the agency practice was to ignore the expiration of the construction permit under those circumstances. In addition, it does not appear from the evidence that the District ever before has faced the situation presented in this case--where a person on whose property part of a surface water management system was built without the person's consent opposes modification and asserts the construction permit has expired. In cases where the agency's practice was applied, if the required certified as-built construction drawings and Statement of Completion could not be provided because the project was not built in accordance with the MSSW permit, the District would require the permittee to either bring the system into compliance with the approved permit designs or obtain a modification of the construction permit. Letter modifications would be accepted when the requested modification would not substantially alter the permit authorization, increase the authorized offsite discharge, impact the environmental features of the project, decrease the required retention/detention, decrease the required flood control elevations for roads or buildings, or decrease pollution removal efficiency. See Rule 40D-4.331(2)(b) (1985). (The current version of the rule adds renewal or extension of the existing permit duration.) Alterations meeting the threshold requirements for a letter modification would be presumed to meet the conditions for issuance for a permit. Otherwise, formal permit modifications would be required. When application is made for a permit modification, the District’s practice is to evaluate those aspects of the surface water management system being modified. Review generally would not extend to the entire system. Permittees seeking to modify their surface water management systems generally are not required by the District to bring the unmodified portions of the system into compliance with current design criteria. Proposed ERP Permit Modification ERP Application No. 44000227.002 seeks authorization to modify portions of the Angler’s Green surface water management system. The specific alterations for which approval is sought are: permanent removal of the existing, unpermitted 18-inch pipe between Lake E and SR 37 roadside ditch; permanent removal of the pump and associated piping conveying water from Pond C-1 to Lake E; installation of the control structure (CS-1), together with installation of pipe to convey water from the control structure to Pond C-1, as designed and approved in the 1985 Permit but different location in the northwest corner of the main body of Lake E; re-grading of the northwesterly portion of the golf course to more closely conform to the original permitted plan and help keep Basin B separate from Basin D; reconstruction of the side-bank sand filter system in the northwest corner of the property, as designed and approved in the 1985 Permit but with a slightly higher invert elevation (122.04 feet above M.S.L.) to prevent water from backing up into Angler's Green from Paradise Lakes again, and with a concrete flume and spreader swale between Pond C-1 and the berm of the side-bank sand filter system; enlargement of Pond B-1; installation of a control structure on Pond B-1; and installation of 100 feet of 6-inch side-bank sand filter discharging to the southwest corner of the property from Pond B-1. By removing the unpermitted pipe to the roadside ditch along SR 37 and by constructing control structure CS-1, with the same control elevations as in the 1985 Permit (albeit at a different location in Lake E), and connecting CS-1 by pipe to Pond C-1 as envisioned in the 1985 Permit, the function of Lake E should approximate its function under the design approved in 1985. Modifying the permitted design to authorize Basin A to flow to Pond B-1 instead of Lake E results in less water flowing to Lake E; these changes will not increase water quantity or quality impacts to Lake E, as compared to the 1985 Permit. As compared to reclamation conditions prior to implementation of the 1985 Permit, water quantity and quality impacts to Lake E would be expected both under the system as designed and permitted in 1985 and as proposed to be modified, by virtue of the similar use of Lake E as a detention pond under either system. Pond B-1 is being enlarged to better accommodate the flow from Basin A. The control structure being added at Pond B-1 will control flow into the swale to the west so as to address water quantity impacts in that area. Stormwater calculations for the revised Pond B-1 demonstrated that the post-development discharge rate will not exceed the pre- development discharge rate, so that there are no concerns for adverse water quantity impacts to receiving waters or adjacent lands or flooding impacts to on-site or off-site property. The historical flows to the west are still maintained. The discharge structure being added at Pond B-1 will account for treatment of the Basin A flow. Based on calculations for revised Pond B-1, the enlarged pond will retain and percolate half an inch of stormwater runoff from the contributing area in 36 hours (which is consistent with current BOR design requirements). The proposed Pond B-1/Basin B modifications, including the routing of Basin A stormwater to Pond B-1, will not adversely affect the quality of receiving waters in that vicinity such that state water quality standards would be violated. Angler's Green is located in the Southern Water Use Caution Area of Polk County. No surface or groundwater levels or surface water flows have been established for this area under Section 373.042, Florida Statutes. The proposed modifications do not involve any works of the District. The proposed modifications are based on generally accepted engineering and scientific principles and employ treatment methods of effluent filtration which involve commonly accepted designs that can be effectively performed and function as proposed. There are no concerns about Century’s financial, legal, or administrative capability to undertake the proposed modifications as specified in the permit, if issued. There are no applicable special basin or geographic area criteria established for this area. Environmental Concerns As with its review of the proposed permit modification for water quantity impacts, the District's review of environmental concerns was limited to review of impacts from the proposed modifications to the original permitted design; unmodified portions of the original permit were not reviewed for compliance with current requirements. An approximately 20 square-foot permanent impact is proposed to Lake E due to the placement of the control structure (SW-1) in the water. A 379 square-foot temporary impact is proposed to Lake E due to the placement of a cofferdam to facilitate construction of the control structure. Temporary impacts to Lake E resulting from the construction of the control structure would be addressed through the use of sediment and erosion controls to prevent possible sedimentation and turbidity that may arise during the construction activity. The placement of a control structure in Lake E would create very minor permanent impacts resulting from the loss of the footprint of the control structure. These impacts would be insignificant. Due to the very minor nature of these proposed impacts, no mitigation would be required, and no loss of wetlands would be required to be recorded on the Wetlands/Surface Water Table. Construction of SW-1 would not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District. No secondary impacts would be expected from construction of SW-1. No unacceptable cumulative impacts upon wetlands and other surface waters would be expected to occur as a result of construction of SW-1. The project area includes .71 acre of herbaceous/forested wetlands (WL-1) in the northwest corner. The potential for secondary impacts is addressed by an existing fence surrounding WL-1, which eliminates concerns for secondary impacts to this wetland area. No adverse impacts would be anticipated to occur to these wetlands, and no adverse secondary impacts to the water resources would be expected to occur as a result of the proposed modifications themselves. The proposed modifications would not cause unacceptable cumulative impacts to wetlands and other surface waters. Class II or Class III waters would not be affected by the proposed modification project. Therefore, Rule 40D- 4.302(1)(c) is not applicable. No seawalls, lagoons or estuaries are involved in this project. Therefore, Rule 40D-4.302(d) is not applicable. The proposed modifications would not be contrary to the public interest. Relocation of a control structure and enhancement of the Basin B portion of the system would create no significant change in impacts. The proposed modifications constitute a slight improvement over water quality from the original permitted design. No threatened or endangered species were identified for Angler’s Green. The proposed relocation and construction of the Lake E control structure, preservation of onsite wetlands in the northwest corner, and re-design of Pond B-1 present no environmental concerns. Consequently, the proposed modifications do not create any potential for adverse effects regarding the conservation of fish and wildlife, including endangered or threatened species or their habitats. The proposed modifications do not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The project area does not involve navigable waters and does not affect the flow of water or cause harmful erosion or shoaling. Hence, Rule 40D-4.302(1)(a)(3) does not apply to this permit modification application. There are no significant historical and archaeological resources involved in this Project. Therefore, Rule 40D-4.302(1)(a)(6) is not applicable to this permit modification application. The proposed modifications would not be contrary to the public interest; they would not adversely affect the public health, safety or welfare or the property of others. No adverse impacts are anticipated to occur as a result of the proposed modifications. The proposed modifications maintain the historic water elevation for Lake E and maintain historic flows for the project area. The modified system should also provide some improvement in water quality.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying Century's permit modification application designated ERP No. 44000227.002. DONE AND ENTERED this 8th day of July, 2002, in Tallahassee, Leon County, Florida. ________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2002. COPIES FURNISHED: Joseph D. Magri, Esquire Merkle & Magri, P.A. 5510 West LaSalle Street Tampa, Florida 33607-1713 Joseph P. Mawhinney, Esquire Clark, Campbell & Mawhinney, P.A. Post Office Box 6559 Lakeland, Florida 33802 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
