Findings Of Fact John Taylor, III, Petitioner, owns property located at 1200 South Missouri Avenue in the City of Clearwater which is zoned CC (commercial center). The subject property consists of a mall and movie theater. On or about April 17, 1986, Michael Johnson, on behalf of Petitioner, applied for a variance to allow two message signs on the subject property and also to allow total message signage of 256 square feet. Without a variance, the subject property can have only one message sign which cannot exceed 192 square feet. The property presently has one message sign and total message signage of 176 square feet located on its marquee. At a meeting of the Development Code Adjustment Board on May 8, 1986, Petitioner's variance application was denied. The parties stipulated that Fusco Corporation is the manager of the mall located on Petitioner's property and further that Fusco is the owner of all improvements on the property. Further, Cineplex-Odeon has leased the theater located on the subject property and has renovated and expanded it from two to five movie theaters. Finally, Michael Johnson was employed by Cineplex-Odeon to install the changeable message sign which is the subject of this variance. The second message sign which is sought by this variance would be located 350 feet from Missouri Avenue, which runs north and south in front of the subject property. Specifically, it will be located in the front wall of the theaters next to the ticket counter, and will be 16 feet long by 4.4 feet high. The sign would actually be a display case, 6 inches deep, with five individual poster display cases, which would be used to display coming attraction posters. Each display case would have a hinged glass door, through which the poster could be seen. Coming attraction posters are 2 feet long by 3.3 feet high. The 6 inch depth of the display case extends equally into, and protrudes out of, the front wall of the theater. Petitioner has not established that a hardship would exist if this variance is not approved. Coming attraction posters can be, and in fact are, displayed in the theater lobby. During the renovation of the theater, the front wall could have been removed and a window installed to allow viewing of the lobby posters from outside the theater. Finally, the existing sign on the property could be used to advertise coming attractions, as well as movies which are currently playing. The display case for which this variance is sought on behalf of Petitioner is a "changeable message sign," as that term is used in Section 134.011(a), Land Development Code, since it would be a graphic communication or device which would be primarily used to convey information or advertise and would also be prominently visible from outside the theater.
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)
Findings Of Fact On October 19, 1983 the City of Jacksonville, Florida made application to the State of Florida, Department of Environmental Regulation for permission to replace an existing stormwater outfall structure discharging into the St. Johns River, in Duval County, Florida. The St. Johns River is a Class III waterbody within the meaning of Chapter 17, Florida Administrative Code. By this project the applicant would remove an existing 27 inch RCP outfall pipe and headwall and install a new 48 inch RCP outfall pipe with headwall. The project also envisions the construction of a 16 by 20 foot erosion protection mat. The system envisioned is a stepdown system as it approaches the St. Johns River. Approximately 117 cubic yards of material would be dredged, 38 cubic yards of which would be taken from an area below the mean highwater line. In association with the project 10 cubic yards of fill would be deposited landward of the mean highwater line. The purpose of this project is to provide more effective drainage of an existing residential development constituted of approximately 150-200 homes. This request was made in furtherance of a court mandate to improve the stormwater drainage within this residential area of the community. In the vicinity of the proposed project, the home sites have lawn grass and ornamental shrubbery and the upland vegetation is otherwise' dominated with hickory, pines and oaks with scattered hickory and magnolia. At the project site the river bank is approximately 15 feet high and terraced. Elephant ear dominates the shoreline vegetation along with some bald cypress and red maple. Eelgrass is common to the area but was not found at the exact location of the project site. The sediments in the area are predominantly sand with some silt and detritus. The site selected for this project was chosen after looking at a number of alternatives and presents the better choice of alternatives reviewed. With the advent of the change approximately five (5) times the amount of volume of water will be discharged as contrasted with the present discharge point. No significant increase in velocity is expected in the discharge system. Consequently increased erosion is not expected to occur, in that velocity not volume promotes erosion. Steps will be taken to insure against erosion of property adjacent to the outfall site to include protection of the bulkhead related to Petitioner Coltrane's property which is adjacent to the project site. Inspection of this site by permit assessment officials within the Department of Environmental Regulation established that minimal environmental harm or impact is expected if the project is permitted. The project would eliminate a small amount of river bottom and the associated biota and its available pollution filtering capacity and wildlife habitat. That loss is not significant on the subject of biological resources or water quality of the St. Johns River. The effects of turbidity will be adequately addressed from the point of view of the experts of the Department, whose opinions are accepted. The erosion is addressed by mats which constitute control structures. The area of land which is constituted of the property of the State of Florida at the site is approximately 20 by 15 feet. Although a certain amount of sedimentation will occur, that sedimentation is not significant and will tend to settle on the protection mats. No particular examination was made of the water quality of the stormwater being discharged through the pipe. 1/ The question of water quality was limited to an examination of the receiving waters in the St. Johns River. The volume and velocity of the stormwater being discharged was considered by the department and was not found to be a significant problem. As stated before this opinion on volume and velocity is accepted. 2/ This project will not interfere with conservation of fish, marine and wildlife or the natural, resources in a way that is contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, to include but not be limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, nor interfere with the established marine soil suitable for producing plant growth of a type useful as nursery or feeding ground for marine life. The project will not interfere with natural shoreline processes to such as to be contrary to the public interest. The project is not expected to create a navigational hazard or serious impediments in navigation or to substantially alter or impede the natural flow of navigable waters, such to be contrary to the public interest. Turbidity controls are contemplated to prohibit a turbidity problem exceeding 29 NTU's above background. The Petitioners Coltrane and Khosravi challenged the grant of the dredge and fill permit. Coltrane is concerned about problems of erosion, that the project will be unsightly in its appearance and that it will tend to disturb the river bottom while the construction is occurring. Khosravi speaks in terms of damage to the natural condition and ecological factors of the surrounding area on the banks of the St. Johns River. Both of these petitioners live adjacent to the project site on home sites by the St. Johns River. As described above, the concerns of the petitioners have been adequately addressed in the project design. Coltrane's testimony and depiction of the circumstance in another outfall of the City of Jacksonville in the vicinity of the project site, where adverse impact is shown, was not demonstrated to be sufficiently similar to the present project to cause alarm. See Coltrane's composite Exhibit No. 1 as admitted into evidence, photographs of that site. The City of Jacksonville has been granted an easement by the State of Florida, Department of Natural Resources for the use of the state owned submerged land.
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
The Issue Respondent Jacksonville Shipyards, Inc. (JSI) filed a permit application with the State of Florida, Department of Environmental Regulation, (DER), for permission to conduct maintenance dredging in a basin associated with its shipyard operation. This permit application was made in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. In the face of DER's statement of intent to grant this permit, George H. Hodges, Jr., (Petitioner), has petitioned in protest. Therefore, the issues to be considered in this dispute concern the entitlement of JSI to the grant of an environmental permit for maintenance dredging of its shipyard basin.
Findings Of Fact DER is an agency of the State of Florida charged with the environmental protection of waters within Florida. Its authority includes regulatory powers announced in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Certain activities involving state waters require permission from DER before they be lawfully undertaken. Among those activities are dredge projects such as contemplated by JSI in its pending request to be allowed to maintenance dredge as much as 66,000 cubic yards of material per year from its shipyard basin located in Jacksonville, Duval County, Florida. This is an undertaking which is envisioned by Chapter 403, Florida Statutes, related to the permit responsibility of DER. It is specifically addressed by Rule 17-4.28, Florida Administrative Code, in which is found the statement of permit requirements for dredge and fill activities. JSI, the applicant, operates a facility known as Bellinger Shipyard, which is engaged in the repair and maintenance of commercial and naval vessels. This enterprise includes the drydocking of vessels upon which repairs are effected, through the use of several drydock chambers in shipyard basin. In the course of the maintenance, a technique known as "gritblasting" is employed. The purpose of this "gritblasting" is to clean the ships in anticipation of repainting. On occasion the "gritblasting" would remove all coats of paint down to the metal finish of the ship. The paints being removed contain antifouling and anticorrosive materials. Those materials have, among other properties, the ability to repel marine organisms, causing their mortality. The "gritblasting" process utilizes a material known as "black beauty." This is a waste product from firing power plant boilers and it contains iron, silica, aluminum, titanium, magnesium, lime, penta oxide (P2O5), sodium oxide, sulfur trioxide and potassium oxide. The "black beauty" is applied through the use of a pressurized system which forces the material onto the treated surface under pressure of 70 to 85 pounds per square inch. After the preparation is made, vessels under repair are repainted, and similar paint with antifouling and anticorrosive properties is reapplied. During the "gritblasting" process, dust is generated and a portion of that material finds its way into the water within the basin. Other particles being removed drop to the deck surface of the drydock. When paint is reapplied to the surface of a vessel undergoing repair, it is given the opportunity to dry and the vessel is then refloated and removed from the drydock. To do this, the drydock itself is submerged. When the vessel has exited the drydock facility, the drydock resurfaces and is allowed to dry out. The material which has been removed from the surface of the repaired vessel is then shoveled into containers and transported to an offsite sanitary landfill for disposal. This material removed includes the "gritblasting" compound and paint which has been stripped from the surface of the vessel. When the drydock is submerged following vessel servicing, the inference can be drawn that a certain amount of the materials on the drydock deck surface will be introduced into the water within the basic before the drydock is resurfaced. The arrangement for refloating the vessel is the reverse of the technique employed in lifting the vessel out of the water for maintenance. When the vessel is brought in for service, it is guided into a submerged drydock. Water is then pumped out of the hollow drydock walls and deck to raise the vessel out of the water, allowing access to the vessel, which is completely above the water surface, as is the drydock work deck. The basin in which the business activities of JSI take place is located on the western shore of the Intercoastal Waterway. The Waterway and basin are part of an estuarine system, as these water bodies are tidally influenced. The basin and the Intercoastal Waterway constitute Class III waters of Florida. The configuration of the basin is as found in JSI Exhibit 16, an aerial photograph of the site. Moving from east to west within the basin, it is approximately one thousand feet from the Intercoastal Waterway to the back of the basin in its western-most extremity. In the back area of the basin the north- south axis is 250 feet. The interface between the basin and the Intercoastal Waterway on the eastern reach north-south axis is approximately 625 feet. There are no obstructions to the confluence of the Intercoastal Waterway and the eastern side of the repair basin. The southern-most reach of the basin is approximately 350 feet in length running east to west. On the eastern side of the basin there is a pier area which is roughly 360 feet north-south by 60 feet east-west. As described before, the pier is not a solid structure extending to the bottom of the water. Thus, water can be exchanged between the basin and the Intercoastal Waterway beneath the pier. JSI had acquired the Bellinger Shipyard in 1974. At that time environmental permits had been issued allowing for the maintenance dredging of the basin. These permits were valid through 1975. In 1975, JSI obtained a dredge and fill permit from the Florida Board of Trustees of the Internal Improvement Trust Fund, as well as a dredge and fill permit from the United States Corps of Engineers. These permits were for a ten-year period. They allowed maintenance dredging in the amount of 66,000 cubic yards per annum and for the disposal of the dredged material in an EPA-approved offshore site. In 1980 DER confirmed the dredge and fill permit that had been obtained from the Florida Board of Trustees. This permit by DER required JSI to conduct monitoring of turbidity during dredging, but did not require employment of turbidity screens. In 1979 the Army Corps had required JSI to conduct bioassay analysis in furtherance of the federal dredge and fill permit. In the face of the results obtained in that bioassay analysis, the Army Corps continued the dredge and fill permit to JSI dating from August 14, 1980. A subsequent extension of the federal permit was given through August 14, 1986. Contemporaneous with the present permit application before DER, JSI has requested further permission from the Army Corps related to the ability to excavate as much as 66,000 cubic yards of material on an annual basis. JSI has not been cited by any regulatory agency related to water quality violations associated with its dredging activity. The present DER permit application is for renewal of the 1980 Permit No. 16-21380 and is being processed under the DER File No. 161071139. This application for permit renewal was submitted on July 16, 1985. The application requests permission to maintenance dredge for a period of ten years. If granted, it is the intention of the applicant to use a closed clam shell bucket to excavate the material in the basin. This choice is in furtherance of the suggestion of DER and is a departure from the applicant's initial intention to use an open bucket to excavate. JSI also intends to employ turbidity curtains during the dredge activities. The applicant intends to transport the dredged material to the aforementioned EPA disposal site which is at sea. In doing so, a hopper barge is propelled by a towing vessel. Both the barge and towing vessel are inspected and certified by the United States Coast Guard. The crews involved in the transport of the material are qualified and licensed. In the past, transport of the material has been done under fair weather and smooth sea conditions, and it is intended that the transportation be done in that same setting if the permit is granted. The barge would not be loaded fully, thereby minimizing spillage. This was the arrangement in the past. The United States Coast Guard will be apprised of the departure time of the voyage in transport of the material, certain activities within that transport and upon return. The hopper barge has a bottom dump which is closed during transport and is opened at the bottom in disposing the dredge material. After satisfying DER about its proposal, JSI was informed that DER intended to grant the dredge permit requested. When Petitioner, George H. Hodges, Jr., the owner of real property adjacent to the site of the project, learned of the stated intention to grant the maintenance dredging permit, he offered a timely petition in opposition to the proposed agency action. This property of Petitioner is in Jacksonville, Duval County, Florida. It is located north of the JSI property at issue. Petitioner's real property is connected to the Intercoastal Waterway. Petitioner has filed this action in opposition to the grant of the permit upon the expressed belief that the dredging activity will cause pollution at his property. In particular, it is JSI's intention at various times in the calendar year to do maintenance dredging in the entire basin. In addition to using a closed clam shell bucket, a system of turbidity barriers or curtains will be employed in segmented dredge areas. Those several locations within the basin which are cordoned off with the turbidity curtains are as depicted in JSI's Exhibit 9 admitted into evidence. The design maintenance depths for the dredging project are set forth in JSI's Exhibit 4 admitted into evidence. They vary from -17 to -37.5 feet, with the greatest depth being contemplated under drydock number 1 in the northwestern corner of the basin. Near the Intercoastal Waterways the depth sought is -17 feet, transitioning to -21.5 feet moving toward the back of the basin at the western extreme and outside of the area dredged beneath drydock number 1. The depths sought under drydock numbers 2 and 3 are -26.5 feet and -20 feet respectively. These desired elevations correspond to conditions at mean low water. The tidal range in the Intercoastal Waterway adjacent to the basin, which would promote an influence in the basin proper, is in the neighborhood of 4-foot intervals, with two tidal cycles a day. This would mean, as example, that at the high tide range, the shallowest design depths for dredging of -17 feet become -21 feet in the transition from mean low water to mean high water. Those 4-foot variations would pertain to the other design depths contemplated in the dredging as described in the preceding paragraph as well. The turbidity barriers contemplated for use will extend from the surface through the water column to depths near the bottom. See JSI Exhibits 4 and 9. It is desirable, according to Dr. Gregory Powell, witness for JSI, a reliable expert in describing the effectiveness and use of turbidity curtains, to have those curtains extend to an area just above the bottom. Dr. Powell's education includes a Masters Degree in coastal and oceanographic engineering and a Ph.D. Degree in engineering mechanics, with emphasis on coastal and oceanographic engineering. In consideration of his remarks, under the influence of high tide there could be as much as a 4 foot gap between the curtain and the bottom. Powell and other experts who offered testimony agreed that turbidity screens can have effectiveness in areas of low current velocity, assuming the proper installation, maintenance and extension to a location near the bottom of the water body. If mismanaged, turbidity screens are not effective in controlling turbidity. Moreover, they are less effective in areas where significant current velocities are experienced. This would include the circumstance in which a foot and a half or more per second of flow was being experienced, according to Dr. Powell, whose opinion is accepted on this point. He also indicated that the quiescent areas in the basin, toward the back of the basin or western dimension of the basin, would show a flow regime in a rate of one centimeter per second. This expression is credited. Although, as described by Dr. Powell, the currents in the Intercoastal Waterway are moving at a rate approximating nine feet per second on ebb time at the bridge located on the Intercoastal Waterway to the south of the project site, these current velocities are not expected in the area where the dredging is occurring. Dr. Powell is correct in this assessment. As he describes, and in acceptance of that testimony, eddies from the current from the Intercoastal Waterway at peak flood tide could come into the basin and temporarily show velocities of one foot per second; however, these velocities are within the acceptable range of performance of the turbidity barrier. Dr. Powell's conclusion that wind would have no significant effect on the current velocity, given the depth of this basin, is also accepted. The remaining flow regime in the basin is not found to be a detriment to the function of the turbidity barriers. The use of turbidity curtains in this project is not found to be a "placebo" to placate DER as suggested by Erik J. Olson, engineering expert who testified in behalf of the Petitioner The monitoring that is intended in the course of the dredging activities would call for examination of background turbidity levels at three sites in the Intercoastal Waterway prior to commencing of dredging and twice daily at each of these sites during dredging. Should a violation of state water quality standards for turbidity be detected, dredging will cease until the problem with turbidity can be rectified. To provide ongoing assurances of compliance with water quality standards, JSI will analyze the sediment in the basin for the parameters of cadmium, copper, aluminum, lead, mercury, oil and grease every two years. Dr. Powell, expert in engineering and recognized as an expert in the matter of transport of the resuspended sediment associated with the dredging, as well as David Bickner, the project review specialist for DER, believe that the use of the closed clam shell bucket technique and employment of siltation screens or barriers, together with turbidity monitoring, will effectively protect against turbidity violations in the Intercoastal Waterway adjacent to the basin. This opinion is accepted. Bickner brings to his employment a Bachelor of Science degree in biology and a Master of Science degree in ecology. Bickner identified the principal concern of DER related to this project as the possibility of release of resuspended sediments into the Intercoastal Waterway. With the advent of the techniques described in the previous paragraph, only minimal changes in background conditions related to turbidity are expected. Although there would be turbidity violations within the confines of the areas where the dredging occurs, the principal influence of that turbidity will be confined in those regions. This speaks to dredge areas I, 2 and 3. According to Bickner, whose opinion is accepted, the turbidity changes within the dredge areas in relationship to background conditions do not require a mixing zone permit, nor do they constitute a basis for denial of the permit. As alluded to before, and as described by Dr. Powell, the basic nature of the basin in question is one of quiescent conditions with low current velocity. He points out that the layout of the basin is such that it is a sediment trap allowing the deposit of silt, in particular in the deeper sections of the basin near the western side. The greatest influence by resuspension of sediment in the dredging activities can be expected in the back portions of the basin and it is in this area that the silt barrier can be expected to be most efficient, based upon Powell's remarks. Dr. Powell indicated that there is the expectation of increased efficiency in turbidity control when a closed clam shell bucket is used, as opposed to the open style of clam shell bucket. Those efficiencies range from 30 to 70 per cent. There is some risk of increased turbidity near the bottom of the water column in the use of a closed clam shell bucket, and for that reason the applicant should monitor the activities of the operator of the excavation machinery to guard against inordinate disturbance of the area being excavated. On balance, the closed clam shell bucket is a superior technique to the open style of clam shell bucket excavation when those alternatives are compared. As Dr. Powell explained, the segmentation of the dredge area allows the resuspended sediment to be confined in more discrete circumstances and to be controlled. The location of the silt barriers behind the pier structure guard against the effects of eddying. The silt barriers can be properly anchored and will not be unduly influenced by current velocity. Dr. Powell believes that the use of silt barriers, taking into account a low velocity of current in the basin, and the proper deployment of the siltation screen could bring about a reduction of the resuspended solids by 80 to 90 per cent on the outside of the barrier. To calculate the influence or the environmental significance of that remaining 10 to 20 per cent of resuspended solids at the Intercoastal Waterway, Dr. Powell testified that the suspended load behind the silt curtain resulting from the dredging is expected to average from 100 milligrams per liter to a peak amount of 500 milligrams per liter. He believes that, depending on which methods of calculation is used, the dilution factor in the Intercoastal Waterway ranges from 330:1 to 600:1. In using an environmentally conservative assessment, that is 80 per cent effectiveness of the silt curtain with a 330:1 ratio, Powell calculated that the release of resuspended materials into the Intercoastal Waterway would be approximately .3 to 1.5 milligrams per liter. This translates to less than 1 NTU against background conditions. This result would not exceed the 29 NTU limit against background that is described as the standard for turbidity control. Dr. Powell's opinion of turbidity results based upon the dredge activity is accepted. There is exchange of water between the basin and the Intercoastal Waterway and to accommodate this influence, the turbidity curtains would be placed in such a fashion that they would not compete with the ebb and flow of the tide. Dr. Powell's assessment of the circumstance in describing the effectiveness of turbidity barriers takes into account the tidal conditions and the inappropriateness of trying to have the silt curtains prohibit the flow conditions during these tidal changes. In order to promote maximum effectiveness of the turbidity barriers during the entire course of excavation of materials, the length of, the silt screen must be adjusted as desired elevations are approached. Erik J. Olson is an expert in civil engineering with an emphasis on hydraulics and the holder of a Masters Degree in coastal and oceanographic engineering. As alluded to before, he questions the validity of the use of siltation barriers as an effective protection against the implications of turbidity. He properly points out that the curtains will not extend to the region of the interface of the basin and the water column at all times. He describes the exchange of water between the basin and the Intercoastal Waterway, to include the unrestricted sediment transport beneath the turbidity curtain. He believes that wind can cause changes in current velocity as great as .2 foot per second, activities within the basin an additional .3 foot per second, and eddying .3 foot per second. All of these taken together do not exceed the range of effective response of the turbidity barriers. On balance, Olson's criticism of the benefit of turbidity curtains is unconvincing. Arlynn Quinton White, Jr., who holds a Bachelor of Science Degree, a Master of Science Degree in biology and a Ph.D. in matters related to marine biology, offered his testimony in support of Petitioner. He believes that as much as 2 to 3 per cent of the resuspended sediment related to the dredging activities would reach the Intercoastal Waterway under the best of conditions. It is difficult to translate that testimony into a measurement of changes in turbidity levels against ambient conditions in the Intercoastal Waterway. In any event, as already indicated, the changes in turbidity levels are not expected to exceed 29 NTU against background. It is evident that the turbidity curtains are necessary and their proper use must be assured to protect against problems associated with turbidity and the implications of the constituents of the resuspended particulate matter related to possible toxicity. Therefore, the close monitoring suggested in the statement of intent to grant the dredge permit is viable. Another matter associated with the implications of turbidity pertains to the fact that when the dredge material has been resuspended, as much as two days could pass before the basin returns to background conditions, given the high content of silt with its attached metals. This becomes significant given the uncertainty of the location of the dredge equipment during the course of excavation, i.e., inside the barrier or outside the barrier. Final choice about the placement of the dredge equipment will have to be made at the time of the excavation. Should the dredge equipment be inside of the cordoned area while excavation is occurring, it would be necessary to allow turbidity conditions to achieve background levels before opening up the barrier for the exit of the hopper barge which contains the excavated material. Otherwise, the estimates as to the influence of the dredging activities in the Intercoastal Waterway are unduly optimistic. Likewise, if the excavation platform is placed outside of the work site, that is to say, on the outside of the siltation curtain, extreme caution must be used to avoid spillage of the excavated material when being loaded onto the hopper barge. The occasions in which the excavation is being made from this side of the barrier should be minimized. These safeguards are important because any changes in sediment loading within the Intercoastal Waterway promote an influence in the area immediately adjacent to the basin and other sites within the Intercoastal Waterway as well. The subject of the use of a hydraulic dredge as an alternative to excavation by use of a closed clam shell bucket was examined in remarks by the witnesses appearing at hearing. Olson believes that there are hydraulic dredges which can achieve the design depth contemplated by the project and which equipment could fit inside the basin area. This is contrary to the opinion of witnesses for the applicant and DER who do not believe that the hydraulic dredging equipment which would be necessary to achieve the design depths would fit into the basin area. On balance, the record does not establish that such equipment with the appropriate capability and size does exist. More importantly, the proposed method of excavation is environmentally acceptable when examined in the context of the permit sought in this case. Finally, it was not essential for the applicant to make a detailed investigation of availability of hydraulic dredging equipment and it is not determined that failure to make this investigation warrants the denial of the requested permit. Although an hydraulic dredge is more desirable from the standpoint that it causes less turbidity through resuspension of sediments, it is not the only plausible method of excavation in this instance. Raymond D. Schulze testified in behalf of JSI. He holds a Bachelor of Science Degree and a Master of Science Degree in environmental engineering sciences. In particular, he established the fact that the amount of resuspended solids that would be introduced into the Intercoastal Waterway associated with the dredging activity would not result in the smothering of organisms or to clogging of gills of fish. In addition to the possible problems with turbidity, there is the additional issue of violation of water quality standards in the several parameters associated with concentrations of metals in the water column within the basin and in the sediments or related parameters such as dissolved oxygen and biological integrity. Having considered the testimony, the facts do not point to water quality violations for any parameters occurring in the Intercoastal Waterway as a result of the dredging. To arrive at this factual impression, the testimony of Dr. Pollman and Schulze is relied upon. Water quality sampling done by JSI in locations within the basin and in the Intercoastal Waterway, that by Dr. Pollman and Schulze, supports their impression of the acceptability of the dredge activities. This water quality data was admitted as JSI's Exhibit 18. Additionally, the field conditions existing at the time of testing, to include water temperature, weather conditions, tidal cycle, ph and dissolved oxygen were also made known. This water quality data and other information examined by these witnesses points to the fact that no increases in concentrations of metals are occurring within the Intercoastal Waterway as a result of the business activities of the applicant, nor are they to be expected while dredging operations are under way. Dr. Pollman correctly identifies the fact that there will not be significant degradation of water quality, above DER's minimum standards, related to the Intercoastal Waterway based upon the dredging activities within the basin, dealing with the water quality parameters of mercury, zinc, cadmium, chromium, lead, aluminum, iron and copper, substances which are within the basin. Dr. Pollman also examined sediment data collected by DER, and that data tended to confirm his assessment of the influences of the dredging activity related to these parameters. Dr. Pollman does not believe that metal concentrations contained in the sediment of the basin are leaching into the water column in quantities sufficient to cause violation of water quality standards. His opinion is accepted. Pollman had collected water quality samples in the two locations where the greatest siltation rate was expected and as a consequence the greatest concentration of metals would be expected. The water quality samples were taken at several depths to reach an opinion as to the matter of leaching of metals into the water column and the possibility of those metals dissolving in the water column. If leaching had been occurring, a concentration of metals expressed as a gradient would be expected. The greatest concentration in this instance would be near the sediment interface with the water column. No such gradation was detected and the idea of leaching was ruled out. Bickner's testimony established that testing for the exact amount of iron present at the dredge site was not required, given the nature of the iron source being introduced into the water within the basin. Bickner did not find that type of iron to be toxic. As stated before, Pollman agrees that no violation of state water quality standards as a result of the presence of iron associated with the maintenance dredging should be expected. There is some data which shows water quality violation for mercury in the basin and the Intercoastal Waterway. Subsequent water samples collected by Schulze in the westerly portion of the basis did not show detectable levels of mercury. Moreover, data taken by Pollman and Schulze and compared with the DER sediment data shows that the concentration levels of mercury are greater in the Intercoastal Waterway than in the basin, thereby suggesting that there is no concentration gradient for mercury which would lead to the belief that the basin contributes to the amount of mercury found in the Intercoastal Waterway, nor is the mercury believed to be leaching into the water column in the basin. The explanation of the differences in measurements of the amount of mercury in the basin, depending upon the point in time at which analysis was made, may be attributable to a natural phenomenon, given numerous sources of mercury within the environment. Whatever the explanation of these changes, Dr. Pollman does not believe that the release of mercury associated with the resuspended sediments that may find their way into the Intercoastal Waterway would show a violation of the state water quality standard for mercury in that water body and his opinion is credited. Data collected by Pollman and Schulze did not show water quality violations for aluminum and the DER test data described before indicated aluminum levels lower in the basin than in the Intercoastal Waterway. Some data collected by Technical Services, Inc., an environmental consulting firm in Jacksonville, Florida, which was reviewed by Pollman, Schulze, and Bickner showed a substantial violation of the water quality standard related to aluminum in sediment sampling that was done. The origin of that amount of aluminum found on that occasion was not clear. It is possible, as described by Bickner, Pollman and Schulze, that the level detected In the Technical Service report could have occurred based upon natural phenomena such as storm water runoff from uplands. Bickner also questioned the findings of Technical Service and felt like the determination might be influenced by some intervening circumstance which would promote the need for re-analyzing that parameter. Whatever the explanation of the findings in the Technical Service report, it does not point to any water quality violation of the standard related to aluminum based upon the dredging activities, given the limited amount of total suspended solids that would be introduced into the Intercoastal Waterway. Schulze, in his assessment of the implications of metal concentrations in the sediment transported to the Intercoastal Waterway, did not find them to cause concern about toxicity to marine life in the Intercoastal Waterway. This point of view is accepted. In trying to understand the implications of metal concentrations, Schulze believed that the biologically available fractions of those metals in the sediment is not very high, and when the dilution of the sediments which occurs in these circumstances is examined, no toxicity is expected. Moreover, as Dr. Pollman described related to the parameter aluminum, it is not a toxic material at the ph levels found in the basin, and the resuspension during dredging will not cause it to gain toxicity. This opinion of Dr. Pollman is supported by Bickner and Schulze. The opinion of Dr. White that the amount of aluminum, copper and zinc within the sediment found in the basin would eventuate in the violation of water quality standards for those parameters when introduced into the Intercoastal Waterway is rejected. The information available to Pollman, Schulze and Bickner which describes their opinion about water quality standards was sufficient to reach an opinion, the position of Petitioner's witness Sanford Young, holder of a Bachelor of Science Degree in civil engineering and a Master of Science Degree in zoology notwithstanding. As Bickner indicated in his testimony, it is essential that an applicant give reasonable assurances of compliance with all parameters listed in Chapter 17-3, Florida Administrative Code, dealing with water quality. However, this does not mean that testing must be done for each parameter set forth in that chapter. Reasonable assurance has been given that water quality parameters as identified in that chapter will not be violated. Bickner indicates the biological integrity standard is not one of concern in that given the nature of business operations within the basin, there is no expectation of a stable benthic community which might be disturbed by dredging. From the remarks of Schulze, there is no prospect of danger to benthic communities within the Intercoastal Waterway. These impressions by Bickner and Schulze are accepted. Under the facts of the case, the failure of the DER permit appraisers to discover benthic organisms in the sample grabbed at the site is not unexpected. There is also some question about whether that sample is representative of the circumstance at the site, given the limited sampling. On the topic of normalization of the DER data which was described in the course of the hearing and is identified by Dr. Pollman, the value of that information is seen as establishing the relative quantities of certain metals within the basin as compared with other sites throughout the Intercoastal Waterway. Twenty-one different locations were involved in this analysis. Concentration ratios using aluminum to normalize the data are as reflected in JSI's Exhibit 17 admitted into evidence. The significance of this information as it grossly describes whether the basin routinely contributes to increases in the amounts of these metals within the Intercoastal Waterway. Overall, basin activities are not shown to have promoted such an outcome. This normalization comparison does not address the issue of site specific water quality violations; however, no such violations are expected associated with the dredging activities within the basin as it relates to violations in the adjacent Intercoastal Waterway. Schulze had made sampling related to dissolved oxygen within the basin and the Intercoastal Waterway. As Schulze describes, the levels of dissolved oxygen seem to be at their lowest point just prior to the dawn hours. Sampling which he did was done at 5:00 a.m. in order to obtain the lowest dissolved oxygen readings. Three sites were sampled within the basin and an additional site was sampled in the Intercoastal Waterway. Readings were taken at varying depths at each site to gain an impression of the overall water column. The mean reading for the circumstance was in excess of the required range for state water quality, that is 4.0 per million. Having considered the evidence, no problems with dissolved oxygen are expected in that deficit contribution is in the range of .1 milligram per liter, per Pollman. In addition, Dr. Powell, through modeling, examined the implications of long-term dredging activities on the topic of dissolved oxygen. He employed field data gathered by Schulze in this assessment. This modeling established that decreases in dissolved oxygen levels would range from .1 to .15 milligrams per liter. Given the average of 4.5 parts per million oxygen in the basin at present, the incremental decreases in dissolved oxygen levels related to the dredging would not pose a problems with state water quality standards for dissolved oxygen other than short-term effects in the immediate vicinity of the dredge area, which is an acceptable deviation. As the Petitioner urges in its fact proposal, a 1983 report of Technical Services, Inc., JSI Exhibit 4, and a 1985 report of that firm, JSI Exhibit 7, were made available as part of the application. Officials within Technical Services, Inc. did not appear at the hearing and offer testimony related to the specific findings found in those reports. This information was used by the experts who did testify on behalf of the applicant, in particular Dr. Pollman, as data to question, his assumptions made about the implications of the project in terms of water quality concerns. Pollman also utilized DER data taken from a source known as Storette, and this pertains to the 21 sampling stations involved in the preparation of JSI Exhibit 17, the graphing document related to concentrations of various metals. Again, this was in furtherance of the basic underlying opinion which Pollman had about the project. The Storette data as such was not offered into evidence. Witnesses for the Petitioner, namely Olson and White, were aware of the two reports of Technical Services, Inc. and the use of the DER Storette data and offered their criticism of the project taking into account this information. Petitioner points out that there is no indication as to how far below the sediment/water interface the Technical Services, Inc., and DER sediment samples related to reports of the consultant and the Storette information of DER were extracted. Therefore, it only reflected one portion of the sediment at a depth of extraction. A more complete understanding of the sediment characteristics would have been shown through a core sample, especially in the area to be dredged, but that understanding was not essential. The suggestion by the Petitioner that it was inappropriate to normalize data for purposes of describing the relative concentrations of the metals parameters is not accepted. The preparation of JSI's Exhibit 17 does not point to abnormally high amounts of aluminum, such that the use of aluminum as a known commodity in carrying out the normalization would be contraindicated. As identified by the petitioner in its proposal, sediment sizes within the strata found in the basin depicts higher percentage of silt and clay-size sediments in the back end of the basin with lesser amounts of the silt- and clay-size sediments in the southern reach of the basin and at the intersection of the basin with the Intercoastal Waterway. The smaller the particles, such as silt and clay, will remain suspended for a longer period of time and have a tendency to promote bonding with heavy metal. Nonetheless, this information does not change the impression that the turbidity barriers will be effective. The 1983 Technical Services, Inc., information related to the settling of resuspended sediment and similar information imparted in the 1985 report by that organization tend to confirm that approximately two days should be necessary to allow the area of excavation to return to background conditions related to turbidity. This is in corroboration of remarks by Dr. Powell. These time projections are not found to be inadequate when taking into account other factors such as tidal changes, boat traffic, other activities within the basin, wind and weather events. As White described, the antifouling properties of the paint involved in the business activity of the applicant can be expected to adversely impact any larval forms of marine organisms when introduced into the basin. Nonetheless, this toxicity is not expected to pose a danger to marine organisms in the Intercoastal Waterway given the percentage of resuspended sediment that will escape capture by the sediment barriers and the dilution factor before introduction of those resuspended sediments into the Intercoastal Waterway. Petitioner questions the acceptability of evidence of the findings set forth by E G & G Bionomics, a firm which performed an examination to determine existing diversity of benthic macroinvertebrates. Those results are reported in Petitioner's Exhibit 13, a 1980 report. They were not accepted as evidence of the specific findings within that report in that they were not the subject of discussion by persons who authored that report. The use was limited to corroboration of the opinion by Dr. Pollman and Schulze as to water quality considerations and they were not Crucial to their opinions. Moreover, it was not necessary for the applicant to perform a more recent bioassay in order to give reasonable assurance to DER concerning water quality matters or to establish the implications of the influence of contaminants within the sediment found in the basin related to benthic macroinvertebrates. The biological integrity of the basin area was at risk prior to the proposal for maintenance dredging. The relevant inquiry is the influence of the dredging activities on the biological integrity in the Intercoastal Waterway and those activities do not place organisms within the Intercoastal Waterway in peril. Any synergistic aspects of metals which act as toxins, for example, the increase in the aggregate value of the toxicity of zinc and cadmium, compared to their individual implications as toxins, will not present problems with water quality in the Intercoastal Waterway. Petitioner takes issue with the proposed disposition of the dredge material at an ocean site. While an appropriate upland disposal site would be preferred, it is not mandated. The approved EPA disposal site within federal jurisdiction is acceptable. Petitioner in its fact proposals found at paragraphs 36-39 (incorporated by this reference) points out violations of water quality standards for cadmium, mercury, and aluminum, and other possible violations of the standard for mercury. This information does not cause a change of opinion about the acceptability of the project in terms of reasonable assurances. There is no indication that oils and greases will present a problem related to water quality standards. The project is not contrary to public interest in that: (a) the project will not adversely affect the public health, safety, welfare or the property of others; (b) the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat; (c) the project will not adversely affect navigation or the flow of water or cause harmful erosion of shoaling; (d) the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; (e) the project will be of a temporary nature; (f) the project will not adversely affect significant historical and archaeological resources under the provisions of s. 267.061; (g) the project is in no other way contrary to the public interest. The purpose of this fact finding does not include the issue of whether there are ongoing violations of state water quality standards associated with the business activity of the applicant, that not being the subject of the hearing. In any event, the testimony of Dr. Pollman established that the operations of JSI are not causing water quality problems associated with the parameters of cadmium, copper, aluminum, mercury, lead, chromium, tin, zinc or iron related to the Intercoastal Waterway. The influences of the business activities associated with those parameters within the basin are not understood when the evidence presented is examined but are not found to be essential to the resolution of this dispute.
Recommendation Having considered the facts, and the conclusions of law, it is, RECOMMENDED: That DER issue a final order which grants the requested maintenance dredging permit in keeping with the safeguards described in the fact finding of this recommended order. DONE AND ORDERED this 16th day of October 1986 at Tallahassee, Florida. CHARLES C. ADAMS, 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 16th day of October 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0365 Having examined the proposed facts submitted by the parties, those proposals have been found as fact with the exception of the following which are distinguished: Petitioner's facts Paragraph 1: Subordinate to fact finding. Paragraph 2: The first sentence in this paragraph is rejected because the fact is not found within the indicated exhibits, nor can that fact be fairly inferred. Paragraphs 9, 10, 11, 14, and 15: Except for the last sentence in that latter paragraph are subordinate to facts found. Paragraph 15: The last sentence: Contrary to facts found. Paragraph 18: The last sentence: Subordinate to fact finding. Paragraphs 21, 22, 23, 24, 25 and 26: Subordinate to fact finding. Paragraph 27: Contrary to facts found. Paragraphs 28, 29, 30 and 31: Subordinate to fact finding. Paragraph 32: Not necessary to dispute resolution. Paragraphs 33 and 34: Subordinate to fact finding. Paragraph 35: Contrary to facts found. Paragraphs 40, 41 and 42: Subordinate to fact finding. Paragraphs 44, 45: Not necessary to dispute resolution. Paragraph 47: The first two sentences are information that is not sufficiently credible to allow application to the issues of the present case. Paragraphs 48, 49, 50 and 51: Not necessary to dispute resolution. Paragraph 52: Reject as fact. Paragraph 54: Contrary to facts found. Paragraph 55: Not necessary to dispute resolution. JSI and DER facts Paragraph 2: Pertaining to sentence 8 and the last phrase within sentence 11; Not necessary to dispute resolution. Paragraph 3: As to the first sentence, fourth sentence and seventh sentence; Not necessary to fact resolution. Paragraphs 4, 5 and 6 to the colon in paragraph 6: Not necessary to dispute resolution. The remaining portions of paragraph 6 are subordinate to fact finding. Paragraph 10: as to the last two sentences; Not necessary to dispute resolution. Paragraph 13: As to the next to the last sentence; Not necessary to dispute resolution. Paragraph 14: As to the fourth sentence and the last sentence; Not necessary to dispute resolution. Paragraphs 16, 17, 18 and 20: Subordinate to fact finding. Paragraph 21: Sentence 3 is subordinate to fact finding sentence 4 is not necessary to dispute resolution; sentences 5 and 6 are subordinate to fact finding. Paragraph 22: Next to the last sentence; Not necessary to dispute resolution. Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38 and 41: Subordinate to fact finding, except the comments in the last sentence of paragraph 41 related to the operations of JSI causing or contributing elevated concentrations of parameters within the basin which is not found as fact. Paragraphs 42, 43 and 44: Subordinate to fact finding. COPIES FURNISHED: Kenneth G. Oertel, Esquire Chris Bryant, Esquire OERTEL AND HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Thomas M. Baumer, Esquire Deborah Barton, Esq. GALLAGHER, BAUMER, MIKALS, BRADFORD, CANNON AND WALTER, P.A. 252-5 Independent Square Jacksonville, Florida 32202 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner owns Lot 5 on Saddlebunch Key in Monroe County, Florida. The lot is approximately 24 acres in size. It is located in a pristine area devoid of any exotic species. From west to east, Petitioner's property consists of: an approximately one acre low hammock, uplands area inhabited by buttonwood trees; a transition area slightly lower in elevation than the uplands area; a salt marsh area with key grass; a narrow mangrove area with mangroves between four and six feet tall; and an open water area. The first two hundred feet or so of the open water area has small coral sponges, sea grasses and algae on the bottom. Further out, the bottom is sandy with a minimal amount of vegetation. Among the species of birds that inhabit Petitioner's property and the surrounding area are the Little Blue Heron, White Ibis and Reddish Egret. The area is also the home of two endangered species, the Silver Rice Rat (which requires large expanses of undisturbed habitat such as that presently found in Saddlebunch Key) and the Lower Key Marsh Rabbit (which inhabits areas such as the transitional and marsh areas found on Petitioner's property). 1/ On April 20, 1992, Petitioner submitted to the Department an application for a permit to build a 1200 feet long/12 feet wide dock (hereinafter referred to as the "Proposed Dock") extending east from the uplands area of his property on Saddlebunch Key out into the open waters where the water depth is approximately four feet. The Proposed Dock will enable Petitioner (and his family, as well as visitors, both invited and uninvited) to more easily access the uplands area of his property, on which he plans to build a vacation home for his and his family's use. 2/ As a result of the closure and barricading of Sugarloaf Boulevard, there is no longer a route over dry land that Petitioner can take to get to the uplands. To reach the uplands, he must either walk through wetlands or navigate a boat through the shallow waters adjoining the uplands. Regardless of which means of access he chooses, the bottom (the mud and muck in which he steps when he travels by foot and the coral sponges, sea grasses and algae against which his boat scrapes when he travels by boat) is disturbed. 3/ The Proposed Dock will be located in a Class III, Outstanding Florida Water. On May 6, 1992, the Department, by letter, advised Petitioner that it had received his application and determined that it was incomplete. The letter specified the additional information and materials Petitioner needed to supply to make his application complete. On July 8, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its May 6, 1992, letter. By letters dated July 20 and 21, 1992, the Department advised Petitioner that it had received his July 8, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letters specified the additional information and materials Petitioner still needed to supply to make his application complete. On August 10, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its July 20 and 21, 1992, letters. By letter dated August 18, 1992, the Department advised Petitioner that it had received his August 10, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letter specified the additional information and materials Petitioner still needed to supply to make his application complete. On September 9, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its August 18, 1992, letter. In his letter Petitioner requested that the Department "process [his] application." Less than 90 days later, on December 7, 1992, the Department issued a Notice of Permit Denial. Petitioner has not provided reasonable assurance that the Proposed Dock will not degrade the quality of the water in and around the project site, nor has he provided reasonable assurance that the Proposed Dock is clearly in the public interest. Turbidity will occur during the construction of the Proposed Dock. When the holes into which the dock pilings will be placed are bored, the excavated material will become suspended and, if not contained, will flow with the current. The containment required will be substantial. The use of turbidity curtains is an accepted means of limiting turbidity. Although Petitioner has indicated that he will use turbidity curtains during the construction of the Proposed Dock, he has not indicated where they will be placed, how long they will remain in place and how they will be used. Turbidity has an adverse impact on the transparency of water (that is, the degree to which sunlight is able to penetrate the water). In and around the project site there is submerged vegetation that requires sunlight. If turbidity is not properly contained during construction, there will be a decrease in the transparency of the water in and around the project site and a resultant adverse impact on the biological function of the submerged vegetation in that area. Moreover, the Proposed Dock, when completed, will block sunlight and prevent this sunlight from reaching the submerged vegetation beneath the dock. Such shading will occur even though Petitioner has agreed to have one inch separations between the boards that will comprise the Proposed Dock's walkway. These separations will allow only a limited amount of sunlight to come through the dock. The amount of shading produced by the Proposed Dock will be substantial because the Proposed Dock will have an east/west alignment and therefore the sun will always be directly above it. 4/ Because the Proposed Dock will deprive the submerged vegetation beneath it of needed sunlight, the dock will have an adverse effect on such vegetation, as well as on the organisms that feed on such vegetation, and it will therefore reduce the diversity of life in the area. The reduction of the area's diversity of life will, in turn, adversely affect the biological integrity of the area. The activity associated with the construction and presence of the Proposed Dock and the vacation home that Petitioner will build if he is permitted to construct the Proposed Dock 5/ will flush birds that now inhabit Petitioner's property and the surrounding area, including the Little Blue Herons, White Ibises and Reddish Egrets, from their present habitat. This activity will also adversely affect other wildlife in the area, including, most significantly, the Silver Rice Rat and the Lower Key Marsh Rabbit, both of which are endangered species that will suffer from the invasion of the exotic species that will accompany the development of the area. In addition, the construction of the Proposed Dock will result in a loss of habitat for the Lower Key Marsh Rabbit. 6/ The Proposed Dock is intended to be a permanent structure and therefore its post-construction impacts will be of a long-lasting nature. It is reasonable to expect that other property owners in the vicinity of the Proposed Dock will seek a permit to construct a dock like Petitioner's if Petitioner is permitted to construct the Proposed Dock. These other projects, if they too are permitted, will have environmental consequences similar to those produced by the Proposed Dock. Although the Proposed Dock will enable Petitioner and his family to reach the uplands area of Petitioner's property without creating a disturbance on the bottom of the adjoining shallow waters, on balance, the Proposed Dock will have an adverse environmental impact on the uplands and surrounding area. The Proposed Dock's environmental disadvantages outweigh its environmental benefits. Petitioner has expressed a general willingness to make those modifications to his proposed project that will make the project permittable, but he has yet to make the modifications that will minimize the project's adverse environmental consequences. Mitigation of these consequences is a possibility. In the past, the Department has accepted both on-site and off-site mitigative measures. 7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to construct the Proposed Dock. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1995. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
