The Issue The issue concerns the entitlement of GJPS Lukas, Inc. to be granted a consumptive use of water permit from the St. Johns River Water Management District. See Chapter 373, Florida Statutes, and Chapter 40C-2, Florida Administrative Code.
Findings Of Fact On December 7, 1990, the Applicant applied for a consumptive use of water permit under application no. 2-127-0808AN as submitted to St. Johns. The Applicant asked that it be allowed to withdraw water from the Floridian aquifer to irrigate a 240 acre sod farm by the use of four wells and a pipeline ditch irrigation system. This was a new use. On January 9, 1991, St. Johns prepared a technical staff report recommending approval of the application. Petitioner was provided notice of this pending disposition on January 15, 1991 leading to his protest to the grant of the permit. Petitioner's property is adjacent to the Applicant's property. Petitioner has a well which he uses for domestic water needs which is in the vicinity of the proposed project. He also has a commercial fish operation with a number of fish ponds including fresh water ponds. Both these uses may potentially be affected by the proposed consumptive water use contemplated by the Applicant. St. Johns calculated that the irrigation of 240 acres of sod, by calculation using the modified Blaney-Criddle formula pertaining to evapotranspiration, calls for a maximum extraction of 169.4 million gallons a year. In any one month the amount withdrawn should not exceed 37.4 million gallons. The Floridian aquifer at the place where the Applicant proposes to draw water is capable of the production of 169.4 million gallons of water per year and 37.4 million gallons per month without promoting environmental or economic harm. Extraction of this water for purposes of irrigation is an acceptable arrangement in that no wastewater treatment plants are within a five mile radius of the site of the proposed use. Therefore it would not be economically, technically or environmentally feasible for the Applicant to use reclaimed wastewater as a source for its irrigation needs. The aquifer in that area is stable. There was no showing in the hearing by competent evidence that saline water intrusion problems now exist in the area of the proposed site of withdrawal. There was no showing that the withdrawal of as much as 169.4 million gallons per year would cause a saline water intrusion problem. The fields where the Applicant intends to apply the extracted water for irrigation purposes are surrounded by a system of ditches and water control structures to confine the water as applied to the sod and any mixing of that water with any surface or subsurface waters that are contributed by rain events. The ditches and control structures keep the water on the property and prevent flooding downgradient of the subject property. As a consequence flood damage on adjacent properties is not to be expected. On a related issue, the ditches and control structures will prevent water from discharging into receiving bodies of water and thereby degrading water in those receiving bodies such as the fish ponds operated by the Petitioner. The water quality of the Floridian aquifer will not be harmed by the activities of the Applicant in withdrawing this water. In the worse circumstances the well used by the Petitioner will be affected by the Applicant extracting the water from the aquifer to the extent of .25 to .4 drawdown in feet in the well the Petitioner uses. This is not a substantial impediment to the Petitioner's ability to withdraw needed water from the well he uses. The Floridian aquifer in the area in question is semi-confined. The four wells that would be used in withdrawing water for the Applicant's purposes will extract the water at 110 feet below the surface. Between that level and the surface are three confining areas of clay totaling approximately 40 feet in thickness. Those confining units of clay would protect the water at the surface when the Applicant withdraws water and induces a gradient. In particular, the nature of the stratification in the soils in the area in question and the topography are such that the Petitioner's fish ponds, when taking into account the distance between the Applicant's operation and those fish ponds, the clay confining units and the gradient between the Applicant's property and the Petitioner's fish ponds, would not lead to a reduction in the water levels of the Petitioner's fish ponds when the water was extracted by the Applicant. The proposed use by the Applicant would not require invading another use reserved by a permit issued from St. Johns. St. Johns has not established minimum levels or rates of flow for the surface water in the area where the Applicant proposes to extract the water. Nor has St. Johns established a minimum level for a water table aquifer or a minimum potentiometric surface water for an aquifer in the area where the Applicant proposes to extract the water. The surficial aquifer water table beneath the property where the Applicant intends to apply the extracted water should not be raised inordinately should the Applicant follow the best management practice as recommended as special condition No. 9 to the Consumptive Use Technical Staff Report pertaining to this project. Nonetheless if the water table beneath the Applicant's property were to be raised to a level which is too high or if the activities by the Applicant would result in excessive surface water runoff the ditches and water control structures that isolate the Applicant's property would prevent the water level in the Petitioner's fish pond from being increased by the Applicant's proposed activities. The application of the extracted water and the expected flow pattern of water applied to the surface and control of that water is set out in St. Johns' Exhibit No. 5 and described in the testimony of Jack Caldwell Lawrence, Jr., employee of St. Johns and an expert in geology and hydrology. See pages 61 and 62 of the transcript. Concerning water quality in the Petitioner's fish pond, it will not be affected by the Applicant's proposed activities in extracting the water. The gradients and distances between the Petitioner's fish pond and the Applicant's fields do not allow surface water or water in the surficial aquifer, which is groundwater above the confining clay unit, to flow from the Applicant's fields into the Petitioner's fish ponds. Again the ditches and control structures related to the project offer additional protection against a compromise to the water quality in the Petitioner's fish ponds. The Technical Staff Report on this project is an apt description of the project and the necessary conditions to granting a permit which would protect the public and environment. One modification has been made to that report and that modification is appropriate. It changes the intended disposition from one of allowing surface water from the onsite management system to be used as the primary irrigation supply with the Floridian aquifer serving as a supplementary source to one in which the Applicant would not use the onsite management system as a water supply source but would use the onsite management system simply as a discharge holding area.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which approves the application for consumptive use of water subject to the conditions set forth in the Technical Staff Report, excepting the need to have the Applicant utilize water from the onsite management system as the primary source of irrigation of its sod. DONE and ENTERED this 4th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is made of the suggested facts set forth in the proposed recommended orders. Petitioner's Facts Paragraphs 1-6 are subordinate to facts found. Concerning Paragraph 7, Petitioner does not have standing to take issue with the quality of notice provided to other adjacent landowners. As to Paragraph 8, the witness had sufficient understanding of the location and nature of the surficial or sand aquifer and the clay confining units to have his testimony credited. As to Paragraph 9 the fact that the witness is unaware of the exact depth of the Petitioner's fish pond does not cause his testimony to be disregarded in deciding that the fish ponds would not be negatively impacted by the activities contemplated in this permit application. As to Paragraph 10, this proposed fact is inconsequential given the de novo nature of this proceeding. As to Paragraph 11, see discussion of Paragraph 7. As to Paragraph 12, it is rejected. As to Paragraph 13, that knowledge was not necessary in determining the outcome here. As to Paragraph 14, it is accepted in hypothetical terms, however, no showing was made that chlorides would increase in this instance and adversely affect the Petitioner's fish based upon the evidence adduced at hearing. As to Paragraph 15, the soil samples from Petitioner's property are inclusive and less reliable that the description of soil in the general area as set forth by the witness for St. Johns. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, Mackintosh, Julian, Colbert, Whigham and Simmons, P.A. 200 West First Street, Suite 22 Sanford, FL 32772-4848 Michael D. Jones, Esquire 996 Westwood Square, Suite 04 Oviedo, FL 32765 Michael D. Jones, Esquire Post Office Box 3567 Winter Springs, FL 32708 Eric T. Olsen, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Ameraquatic, Inc., Applied Aquatic Management, Inc. and Aquatic Systems, Inc., are Florida corporations engaged in the business of maintaining lakes and other waterbodies by controlling or eradicating noxious aquatic weeds. Petitioner, Boliden Intertrade, Inc., is a manufacturer of heavy industrial chemicals, six of which are copper sulfates used for aquatic plant control. Petitioner, Applied Biochemists, Inc., is also a manufacturer of herbicides used for the control of aquatic plants, including copper-based herbicides. On March 5, 1993, respondent, Department of Natural Resources (DNR), published notice of its intent to adopt substantial revisions to Chapter 16C-20, Florida Administrative Code. That chapter sets forth DNR's aquatic plant management policies, including permit application requirements, exemptions from permitting, review criteria to be used by DNR in determining if a permit should be issued, management method criteria and standards, public notification requirements, and penalties for violation of the chapter. Many of the proposed rules codify existing DNR informal policies. All of the rules cite, at a minimum, Sections 369.20, 369.22 and 369.251, Florida Statutes, as the statutes implemented while they cite the same statutes (and others) as the statutory authority for their adoption. On March 26, 1993, petitioners filed their petition challenging various portions of the proposed rules. As grounds for invalidating the rules, petitioners contended that certain rules (a) exceeded the rulemaking authority or modified, enlarged or contravened the specific provisions of law implemented, (b) were vague, failed to establish adequate standards for agency decisions, and vested unbridled discretion in the agency, and (c) were arbitrary and capricious. Standing Ameraquatic, Inc., Aquatic Systems, Inc. and Applied Aquatic Management, Inc. are in the business of lake management, including the control of aquatic plants to meet lake management objectives. As such, these petitioners are subject to DNR's regulatory authority and must comply with the requirements of the proposed rules. They are accordingly affected by the agency action. Applied Biochemists, Inc. and Boliden Intertrade, Inc. are both foreign corporations and manufacture herbicides used for the control of aquatic plants, including copper-based herbicides. Although Applied Biochemists, Inc. has not registered to do business in the state, it distributes products through independent distributors and sales representatives throughout the state. Even so, by law it is not authorized to maintain an administrative action in this state, and thus it lacks standing to participate. As to Boliden Intertrade, Inc., the proposed rules place limitations on the use of herbicides for aquatic plant control, including copper-based herbicides, and its substantial interests are affected. An Overview of the Process There are over 7,700 lakes in Florida greater than ten acres in size, each with its own individual characteristics. There are also more than 300,000 natural ponds and other waterbodies under five acres in size. Aquatic plants are found in most, if not all, of these waterbodies. Statutory law defines aquatic plants as including all floating, emersed, submersed and ditch bank species of plants growing in the aquatic environment. Although the scientific community is not in total agreement as to the benefit of aquatic plants, it is commonly believed that aquatic plants are beneficial in a lake's ecosystem, providing a substrate for animals, protection from predators and changing the chemical composition of the water. Aquatic plants also provide a nursery area for small fishes, as well as carbon and food for water fowl and other vertebrates. Even so, aquatic plants may be noxious, that is, they have the potential to hinder the growth of beneficial plants, interfere with irrigation or navigation, or adversely affect the public welfare or natural resources of the state. Accordingly, DNR has been given the duty of administering the Florida Aquatic Weed Control Act and Florida Nonindigenous Aquatic Plant Control Act, as codified in Part II of Chapter 369, Florida Statutes. Under these acts, DNR has the responsibility of controlling, eradicating and regulating noxious aquatic weeds in waters of the state in such a manner as to protect human health, safety and recreation, and to the "greatest degree practicable", prevent injury to plant and animal life and property. To carry out this statutory mandate, DNR has been given the authority to adopt rules and regulations, which are now codified in chapter 16C-20. Aquatic plant control can be accomplished by chemical, biological or mechanical means. As is relevant here, it includes the application of chemical products (herbicides) used to chemically control or regulate aquatic plant growth. DNR administers the control of aquatic plants through a program of contracts and permits with various public and private entities. Under current rules, before any persons (except those having a contract) can engage in the activity of controlling noxious aquatic plants, they must make application for a permit. However, DNR has exempted from permitting requirements control activities in certain types of waterbodies. They include, among others, all waterbodies less than ten acres in size not connected to Waters of Special Concern. The rules also prescribe the general criteria to be used for reviewing permit applications, operation requirements for licensees, including conditions for applying herbicides, and penalties for violating the chapter. The existing and proposed rules apply not only to professional pesticide applicators, such as petitioners, but also to members of the general public who can purchase and apply them as lay persons. Registration of Herbicides Because herbicides are chemical poisons, they are regulated by the Federal Insecticide, Fungicide and Rodenticide Act, as amended. This act requires the Environmental Protection Agency (EPA) to assure that products entering channels of trade in the United States do so with no unreasonable adverse effect on man or the environment. The registration process of herbicides with EPA is a long, expensive and arduous one. Among other things, a company wishing to register products must conduct studies involving acute toxicity, chronic toxicity, environmental effects, effect on non-target organisms, and a chemistry package on how the product is formulated or synthesized. These studies, which must be conducted in accordance with EPA protocol, are then reviewed by the EPA staff. Once a manufacturer registers a product with EPA and has its product label stamped "Accepted", this means the product can be manufactured, distributed and sold within the channels of trade. The labeling is designed to ensure that the product, if used as directed, will cause no "unreasonable adverse effect on man and the environment" and will not reduce the quality of water below the classification established for it. It is noted that aquatic herbicides fall rather low on EPA's priority for product review. This is because they rank below other chemicals reviewed by EPA in terms of toxicity and exposure. If data submitted to the EPA indicates that when a product is used as directed it may affect either the habitat of an endangered species or the endangered species, the registration application is referred to the U. S. Fish and Wildlife Service for a jeopardy opinion. If jeopardy exists, the EPA must then review the registration packet and address these concerns, and the label is thereafter modified to protect the endangered species or its habitat. A chemical either passes the test as to environmental risk or it doesn't. There is no ranking within that determination. Therefore, two or more products may be registered for the same use without a determination as to which would be the safer of the two. None of the aquatic plant control herbicides have restricted use labels and there are no special requirements on persons who use them. Besides federal registration requirements, pesticides must be registered with the Department of Agriculture and Consumer Services (DACS) before being sold and distributed for use in Florida. For the purpose of making recommendations to the Commissioner of Agriculture regarding the sales, use and registration of pesticides, a Pesticide Review Council (PRC) has been established by the legislature and includes representatives from the Department of Health and Rehabilitative Services (HRS), DNR, DER, DACS and the Game and Fresh Water Fish Commission (Commission). In this way, DACS brings each agency's expertise to bear in determining solutions to pesticide problems. DACS does not make a comparative determination between products as to their relative safety or rank them according to safety. Also, it does not try to duplicate EPA's efforts. Rather, it assesses pesticides from the perspective of issues specific to Florida, such as groundwater and soil content, that may not have been addressed or assessed by EPA during that agency's registration process. Finally, there is nothing in law that prevents a state from imposing more restrictive uses on herbicides than does the EPA. Indeed, Florida and many other states have done so. Are the Rules Invalid? In their petition initiating this action, petitioners have challenged more than thirty proposed revisions to chapter 16C-20 on the theory they violate Subsections 120.52(9)(b)-(e), Florida Statutes. Although no objection or request for clarification was made by DNR, the petition is vague in some respects because it alleges that a "rule" is invalid for various reasons but gives no citation to the specific rule or part thereof being challenged. There is also no document filed in this case which sets out with specificity all of the language which petitioners find offensive. In addition, petitioners' proposed order does not address all matters raised in the initial petition, and it contains argument regarding the invalidity of certain rules or parts thereof which were not addressed in the initial petition, and argument that certain rules are invalid for different reasons than originally alleged. At the same time, the agency's proposed order does not provide a response to many of the allegations and argument in the petition. This has made a difficult task for the undersigned even more so. In an effort to simplify what is otherwise a factually complicated case, the undersigned has grouped what he perceives to be the challenged rules into the following broad areas of subject matter. Manatees Manatees are an endangered species in this state and must by law be accorded a very high level of protection. They are herbivores and eat more than forty species of plants and vegetation. Although relatively slow-moving, manatees are highly mobile and move as much as twenty to thirty miles in a twenty-four hour period. They are also migratory in nature, generally moving south in the winter and north during the warmer months. In an effort to provide protection to manatees from potentially harmful chemicals used in controlling aquatic plants, DNR has proposed to adopt several new rules which restrict the use of chemicals in areas where manatees congregate. These areas are known as "manatee aggregation sites" and are defined in section (14) of proposed rule 16C-20.0015 as follows: (14) "Manatee aggregation site" means a spe- cific area within a waterbody or canal system where a significant number of manatees peri- odically congregate, as identified by the department. Petitioners complain that the definition is vague and lacks definitive guidelines for the agency to use in determining whether an area constitutes a manatee aggregation site. However, for the following reasons, it is found that it would be impractical to identify specific sites, as petitioners suggest, or to provide more definite standards. To begin with, manatees tend to congregate at specific sites depending on environmental conditions and the availability of food sources. Therefore, the sites will vary as environmental conditions and food sources change from time to time. In addition, manatees have changing habits and "wide-ranging movements" and, except for a few well-known sites such as Crystal River, the areas in which significant numbers aggregate are not static. Because these sites are dependent on a number of constantly changing variables, it would be impractical, if not impossible, to name specific sites or place more definitive standards in the rule. In subparagraph (1)(a)8. of proposed rule 16C-20.0055, DNR has restricted the use of herbicides in manatee aggregation sites in the following manner: 8. Control activities using herbicides may be permitted in manatee aggregation sites at a time and in a manner specified in the permit. In addition, the last sentence in proposed rule 16C-20.0035(2) reads as follows: Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above rules generally track and codify the informal policy used by DNR since 1990. Petitioners contend that subparagraph (1)(a)8. is vague, fails to establish adequate standards, or vests unbridled discretion in DNR. They also assert that the last sentence in proposed rule 16C-20.0035(2) vests unbridled discretion in DNR and is arbitrary or capricious. Because manatees are an endangered species, they will never be tested, as other animals are, to determine the impacts of chemicals. Therefore, there is insufficient evidence to determine the impacts of herbicides on the species. Also, there are no documented cases of manatees dying from chemical toxicity. Indeed, the primary cause of death to manatees is from boating accidents. However, manatees have a long life span, and to the extent chemicals are used in waterbodies that they frequent, they will suffer exposure to chemicals for a long period of time. For this reason, DNR has proposed to allow herbicides to be used in manatee aggregation sites only after prior DNR approval is obtained. Since each area is site specific, and the conditions that might be imposed in a permit could vary depending on a waterbody's individual characteristics, it would be impractical to be more precise in subparagraph (1)(a)8. The effect of copper on manatees is not known at this time. Thus, scientists do not know the normal copper level for a manatee. For the last three years, DNR has imposed a moratorium on the use of copper in systems frequented by manatees. An examination of manatees' liver tissues since 1990 reveals lower copper levels than those found in earlier studies. This suggests a correlation between the copper levels in manatees and the use of copper-based herbicides in waters that they frequent. However, it should be noted that copper is not considered to be a cumulative systemic poison. Like subparagraph (1)(a)8., rule 16C-20.0035(2) does not prohibit the use of copper-based herbicides in exempt waters that connect to waterbodies designated as manatee aggregation sites. Rather, it requires prior approval by DNR before copper- based chemicals can be used in these waters. Given the uncertainty at this time as to the long-term effects of copper on manatees, such a safeguard is consistent with the agency's mandate that, to the greatest degree practicable, it prevent injury to plant and animal life and property, and that it give special protection to the manatee. Therefore, the last sentence in proposed rule 16C-20.0035(2) is not arbitrary or capricious nor does it vest unbridled discretion in DNR. Interagency agreements Proposed rule 16C-20.0011(2) incorporates by reference an interagency agreement between DNR and DER and a memorandum of agreement between DNR and the Division of State Lands. Section (3) of the same rule incorporates by reference an interagency agreement between DNR and the Commission. In addition, proposed rule 16C-20.0055(2)(b) incorporates by reference an interagency memorandum of understanding between DNR and DACS. These agreements and memoranda are necessary for two reasons. First, the legislature has specifically directed the agencies to enter into such agreements. Second, the legislature has directed that DNR "guide and coordinate the activities of all . . . agencies . . . charged with the control or eradication of aquatic weeds and plants." Thus, as to matters pertaining to the quality of waters in the state, sovereign lands, pesticide registration and fish and wildlife habitat management, DNR has the statutory authority to coordinate these activities to the extent they impact on aquatic plant management. The rule merely carries out this mandate and, contrary to petitioners' claim, does not deviate from the statutes implemented. To the extent petitioners quarrel with the validity of the language in the underlying agreements, these issues were not raised in the initial petition and need not be addressed. Among other things, rule 16C-20.0055(2)(b) authorizes DNR employees, pursuant to the memorandum of understanding with DACS, "to remove samples from spray tanks to ascertain compliance with the terms of this chapter, and permit conditions." Under this rule, DNR employees would be able to inspect and sample spray tanks used by persons engaged in herbicide control activities to ascertain whether the user was complying with the requirements of the chapter and his permit. The source of authority is found in paragraph 11, page 9 of the DACS memorandum executed by the signatories on May 8, 1985. It provides in relevant part as follows: DACS, under authority of Section 487.13, F. S., grants to DNR authority, as agents of DACS, to enter upon and inspect vessels and vehicles for purposes of collecting informa- tion and samples necessary to determine com- pliance with provisions of pesticide product label or labeling relating to application of pesticides (herbicides) to waters of the state for aquatic plant control. DNR, in conducting inspection under authority granted by this agreement, shall adopt inspection, evidentiary and custody procedures as specified by DACS. Since the memorandum authorizes DNR to "collect . . . samples", and the rule allows DNR to "remove samples from spray tanks" for inspection purposes, the rule is consistent with the memorandum and does not exceed the grant of authority in that document. Potable water setbacks In an effort to protect potable water sources from the harmful effects of chemicals, DNR has proposed to place certain restrictions on the use of herbicides within specified distances of potable water sources. These restrictions are in the form of setbacks and vary in distance depending on whether the waterbody is a lake or river, the plants to be removed are floating or submerged, and the activity takes place upstream or downstream from the water source. The EPA has established three types of restrictions on aquatic herbicide products which are applied to potable water sources. First, there is a setback requirement which establishes a distance between potable water intake and treatment areas. Such a restriction has been imposed by EPA when it determines that the chemical is at too high a concentration for potable water. These restrictions appear on the product label. However, there are no setback requirements on copper-based chemicals because EPA considers them to be free of environmental risk when used at the prescribed rates. The second restriction is a time delay, which requires that after being treated with herbicides, the water not be used for a specified period of time. Most of the aquatic herbicides registered with EPA have time delay restrictions for swimming, fishing or irrigation. The last restriction is a tolerance restriction, which requires a monitoring program to sample water collected at the intake valve. It is noted that of the eight most commonly used aquatic herbicides, only two have setback restrictions, while the remaining six have either tolerance or time delay restrictions. Proposed rule 16C-20.0055(1)(a)2.-4. establishes setback requirements for herbicides with labels which do not indicate a potable water intake setback distance. In other words, for those products without an EPA setback requirement on the label, DNR intends to prescribe specific setback requirements for using herbicides in potable water sources. In choosing this type of restriction, DNR decided against using a tolerance or monitoring type of restriction due to vigorous opposition made at a workshop by a member of the scientific community, and its concern over the lengthy amount of time required to obtain results through a monitoring system. The proposed setback distances have been in use on an informal basis since 1985. They were established at that time through a collective effort by representatives of DNR, DER, DACS and the Commission to determine a reasonably safe distance between potable water sources and the use of chemical herbicides. The rule implements in part the DER interagency agreement which mandates that, when EPA has no setback requirement, DNR establish a "setback distance area based on available water quality monitoring data" and "with input from DER." DNR readily concedes that the proposed setback distances are not supported by scientific literature. However, they represent the best scientific judgment of four state agencies and, because the EPA does not consider Florida-specific issues during its registration process, the rule takes into account Florida's special drinking water concerns by placing restrictions on the use of herbicides in and near drinking water sources. Then, too, there is no credible evidence that the setback distances are unreasonable. Finally, the rule is in accord with the statutory mandate that DNR address by rule standards for "chemical . . . control activities", and the statutory requirement that it "protect human health, safety, and recreation and, to the greatest extent practicable, prevent injury to plant and animal life and property." Selection of herbicides Proposed rule 16C-20.0055(1)(a)5. relates generally to herbicide control activities and provides that When more than one herbicide is registered for use in an aquatic site, the department shall require the use of the herbicide which it determines has the least adverse effect upon human health, safety, recreational uses, non-target plants, fish, and wildlife. In determining which herbicide shall be used, the following criteria shall be considered: Which herbicide will provide the greatest protection to human health, safety, and recreational uses. Which herbicide will provide the greatest protection to non-target and animal life. Which herbicide will be most effective at controlling the targeted species. Under the terms of this rule, when more than one herbicide is registered for the same use and site, which is not an unusual occurrence, DNR will make a determination, based on the criteria enumerated in subparagraphs a.-c., as to which herbicide has the least adverse impact upon humans, vegetation, recreational uses, fish and wildlife. Petitioners contend that the rule goes beyond the statutory grant of authority, contravenes the statutes implemented, is vague, fails to establish adequate standards and vests unbridled discretion in the agency, and is arbitrary and capricious. Because most registered aquatic herbicides have some type of use restriction, DNR will evaluate each herbicide registered for a site to see which product provides "the greatest protection to human health, safety and recreational uses", or provides "the greatest protection to non-target plant and animal life", or which is the "most effective at controlling the targeted species". For example, an applicator may request to use a herbicide that would prevent the public from fishing for food in that waterbody for a specified number of days. If another registered product can effectively control the plants without such a restriction, DNR would approve the second product on the ground it provided "the greatest protection to human health". Similarly, if water hyacinths are intermixed with bulrush, a beneficial native plant used for fisheries, DNR would approve a herbicide that kills the water hyacinths but does not harm the bulrush. This decision would conform with the requirement that the herbicide selected offer "the greatest protection to non-target plant(s)." Finally, if a registered product is the only one that will control the targeted plant, under the last criterion DNR would have to take this factor into account in approving one of several registered products. It is noted that the criteria in subparagraphs a.-c. track the language in section 369.20 and thus do not exceed the statutory authority or enlarge, modify or contravene the statute implemented. In making a determination under the rule, DNR does not intend to review the toxicologist data for herbicides because EPA has already done so. Thus, there is no need for special in-house expertise in this area. Also, DNR will continue its existing practice of allowing the decision to be made by a DNR regional biologist in consultation with the Tallahassee office. Although the decision may be subjective to a certain extent, the guidelines in the rule merely track the language in the statute implemented and thus are not vague or otherwise lacking in standards. Given the fact that most aquatic herbicides have some type of use restriction, DNR's proposal to require the use of the least restrictive herbicide is not arbitrary or capricious. Finally, the contention that DNR lacks funding and staff to carry out its responsibilities is not a ground for invalidating the rule. Definitions Proposed rule 16C-20.0015 contains twenty-four definitions to be used in applying and interpreting the various provisions within chapter 16C-20. Of these, sections (1), (5), (11), (14) and (23) are subject to challenge on various grounds. In section (1) of the proposed rule, DNR has defined the term "aquatic plant" as follows: "Aquatic plant" means any plant, in- cluding a floating, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant. This includes those species listed in s. 369.251, F. S. (Emphasis added) Section 369.251 lists five species of plants that fall within the category of "invasive nonnative plants". Since the more credible evidence shows that these five species are wetland and upland species of plants and are not considered to be aquatic plants, they have been improperly included within that definition. Section (5) of the rule defines the term "classes of surface water" as follows: (5) "Classes of surface water" means the classification of surface waters as defined by the Department of Environmental Regula- lation, pursuant to Rule 17-302.400, F.A.C. By its terms, section (5) adopts the same water classifications as are used by DER. Therefore, the rule does not contravene any statutes. Although the rule will obviously have to be amended at a future time if DER changes these classifications, this is not a ground to invalidate the rule. Further, by adopting this definition, DNR has not delegated its rulemaking authority to DER. Section (11) defines the term "eradication program" as follows: (11) "Eradication program" means a method for the control of non-indigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt to kill all the target aquatic plants on a permanent basis in a given geographical area. Petitioners contend that the definition is invalid because it modifies the law being implemented. That is to say, DNR has limited the eradication program to non-indigenous plants, thus excluding all indigenous plants. However, the law implemented (s. 369.20) directs the agency to control all noxious plants, whether indigenous or not. By limiting the rule in this manner, DNR has modified the implementing statute. Section (14) of the rule defines the term "manatee aggregation site". For the reasons given in finding of fact 15, the definition is not deemed to be vague or overly imprecise. Finally, section (23) of the rule defines "waters" as follows: (23) "Waters" mean rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and all other bodies of water. This rule tracks verbatim the definition of "waters" found in subsection 369.22(1)(g), one of the statutes cited as the specific authority and statute implemented. Therefore, DNR has not exceeded its grant of rulemaking authority nor contravened the statute implemented. Permits - applications Under the current permitting scheme established in existing rule 16C- 20.002, all persons engaged in aquatic plant management activities, except those doing so in exempt waters, must file with DNR an application for a permit. Upon issuance, the permit is valid for a period of one year and may be subsequently renewed for a second year. The application now requires a listing of the acreage of the treatment site, the targeted plants, the acreage of the targeted plants, and the chemicals proposed for use. It also requires the applicant to submit a map of the water body, indicating the location of the vegetation desired for control. The existing rule does not call for the applicant to submit proof of ownership of the property being treated nor a drawing of the riparian owner's boundaries and boundary dimensions. In its revisions to rule 16C-20.002, DNR proposes to modify certain existing requirements and to add new requirements for obtaining a permit. The application form itself has not been formulated as of this time but will be filed with the Department of State upon these rules becoming effective. Petitioners contend that proposed changes in the last sentence of section (2) and paragraphs (3)(d), (5)(a) and (6)(b) of the rule are invalid for a number of reasons. The apparent offending language in paragraph (3)(d) requires that (d) All applications, except for those from government agencies, research institutions, and wastewater treatment facilities approved by the Department of Environmental Regulation, shall be in the name of and signed by the riparian owner who shall, upon request, provide proof of riparian ownership. (emphasis added) As noted above, DNR does not currently require proof of ownership of the property being treated. In addition, it is not a practice of the industry to require proof of ownership while contracting for lake management services. Indeed, the industry says it does not ask if a person owns the property being treated or where the property boundaries are. Rather, it assumes that a person would not contract and pay for such services unless he owned the property. DNR now proposes to require such proof but will do so only in rare instances and under unusual circumstances. For example, when "border wars" erupt between adjoining property owners over who owns aquatic vegetation, and one owner does not want the vegetation to be controlled, DNR would request "proof of riparian ownership" to resolve this type of dispute. When these disputes have arisen in the past, DNR has been required to ascertain the same information that it now proposes to require by rule. Given the agency's valid need for this information, and the fact that this provision in the rule will be employed sparingly, the offending language is neither arbitrary or capricious. In paragraphs (5)(a) and (6)(b) DNR proposes to add the following provisions: (5)(a) All conditions of the permit shall be stated on the permit. (6)(b) Following notice to the permittee, the department is authorized to amend a permit issued pursuant to this chapter during the term of the permit to restrict or limit the scope of the permitted activity. This shall be done if necessary to ensure the protection of human health, safety, recreation, plant and animal life, and property. Petitioners complain that paragraph (5)(a) is invalid because it fails to identify the "conditions" that may be stated on a permit. This contention overlooks the fact that it would be impractical to list every possible condition that could be stated on a permit or when that condition might be imposed. Then, too, an applicant need only review the other provisions in the chapter to learn when specific conditions may be warranted. As to paragraph (6)(b), this provision allows DNR to add conditions after a permit is issued when human health, safety, recreation and other similar issues come into play. Since the circumstances under which conditions may be imposed track the statutory language in section 369.20, the rule does not contravene the statute implemented. Further, by utilizing the statutory criteria, the rule contains adequate standards for the agency to follow. Finally, the last sentence of section (2) of the rule reads as follows: As a condition of the permit, any aquatic plants removed pursuant to an aquatic plant control permit may be required to be relocated in the control area to maintain habitat or for other environmental benefits. Petitioners contend there are no standards or criteria in the rule for determining under what conditions relocation of vegetation may be required. They also argue that the rule is arbitrary and capricious. As to the latter contention, they point to a research project performed for DNR by Dr. Canfield, a University of Florida professor, which examined the relationship of plants to fish and determined the amount of vegetation that should remain in a controlled area. Some sixty lakes were included in the study, and Dr. Canfield concluded that there is no relationship between aquatic macrophytes and fish. In other words, in those lakes with macrophyte coverage between 15 percent and 85 percent, the sport fish population was uniformly good while the population was unpredictable in lakes having below 15 percent coverage and above 85 percent coverage. The study also indicated that the effect on the population may not be the direct result of vegetation because of other factors. The study further found no strong correlation between birds and aquatic macrophytes. Rather, lake trophic status was the dominant factor. In another study performed for the EPA by Dr. Haller, also a faculty member at the University of Florida, he evaluated the effect of grass carp, mechanical harvesting and the use of herbicides on fish population in twenty-four experimental Florida ponds. This study revealed that the removal of aquatic plants was immaterial to the fish populations. Finally, experience derived from the Polk County lake system shows that the clearing of lake front does not destroy the environment on that part of the lake but simply results in a different group of species utilizing that area. DNR concedes that the Canfield study "provide(s) some broad generalities that are helpful." However, DNR chose not to accept Dr. Canfield's conclusions and instead relied upon other literature, not identified in the record, to support its theory that a correlation exists between vegetation and fish population and thus the proposed rule is justified. Since the more credible evidence supports a finding to the contrary, the last sentence of section (2) of proposed rule 16C-20.002 is deemed to be arbitrary and capricious. Permits - Criteria to be used Proposed rule 16C-20.0045 sets forth the criteria for issuing, modifying, or denying a permit application. Petitioners allege that the second and third sentences of section (1), a part of paragraph (2)(b), subparagraphs (2)(c)2. and 6., subparagraphs (2)(d)2. and 3., subparagraph (2)(e)2., paragraph (2)(h) and section (4) are invalid because they exceed the statutory authority or statute implemented in some respect. In this regard, it is noted that the rule implements sections 369.20, 369.22 and 369.251 while the general authority is found in the same sections and section 370.021. Petitioners also contend that section (2) is invalid in its entirety because it fails to establish adequate standards or vests unbridled discretion in the agency. The criteria in question are somewhat lengthy, and because they are found in petitioners' exhibit 1 received in evidence, they are not repeated here. Although proposed rule 16C-20.0045 has been substantially reworded, the criteria for issuing, modifying or denying a permit application are essentially unchanged from prior policy, and they generally track the criteria found in section 369.20. Thus, they do not exceed the rulemaking authority or contravene the statute implemented. While no specific weight has been assigned to each criterion, to do so, as petitioners suggest, would be impractical. Finally, the rules contain seven categories of criteria, some with subcategories, and are precise and understandable. Therefore, the section embodies adequate standards and does not vest unbridled discretion in the agency. Exempt waters Proposed rule 16C-20.0035 describes the waters in which no permit is required in order to engage in aquatic plant control activities. The petition initiating this proceeding suggests that four portions of the rule are invalid. They read as follows: (1)(a) Waters wholly owned by one person, other than the state, provided there is no connection to Waters of Special Concern. * * * (c) In all waters, except aquatic preserves designated in Chapter 258, F.S., where riparian owners physically or mechanically remove aquatic plants to create an access corridor of sufficient length waterward from the shore to allow access for a boat or swimmer to reach open water. This access corridor shall not exceed a total of 25 feet in width. All unvegetated areas shall be cumulatively considered when determining the exempt access corridor . . . * * * (e) In waters of ten surface acres or less provided there is no connection to Waters of Special Concern. The acreage of waters in systems with any connections shall be calculated for each individual water rather than collectively as a system. Natural connections between non-exempt waters shall be considered part of those waters. * * * (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. As to paragraph (1)(a), petitioners complain that it is illogical and without reason to exempt only "waters owned by one person" and not waters owned by more than one person. Since the record does not contain any evidence to support a finding that this distinction is reasonable or logical, the rule is deemed to be arbitrary and capricious. As to the cited portion of paragraph (1)(c), petitioners first point out that in the second sentence the access corridor to the riparian owner's property is only twenty-five feet in width and is unreasonably small. They suggest that a larger corridor is necessary for an owner wishing to build a dock and park his boat. As to this requirement, DNR's witness Caton acknowledged at hearing that a reasonably sized access corridor would be more like fifty feet. Since the proposed access corridor is not supported by facts or logic, the second sentence in section (1)(c) which reads: "This access corridor shall not exceed 25 feet in width" is deemed to be arbitrary. Petitioners also suggest that the first and third sentences in section (1)(c) are invalid on the grounds they are vague or impermissibly imprecise in standards or criteria. Since reasonably intelligent persons should be able to understand the requirements of the rule, the two sentences are not vague. Further, they are not so imprecise as to be invalid. Finally, paragraph (1)(e) exempts from DNR permitting requirements all waterbodies smaller than ten acres in size that do not connect to Waters of Special Concern. This exemption is logical and reasonable given the fact that most waterbodies of this size are artifically created and do not connect to other waterbodies. In section (2), DNR proposes to require applicators to adhere to label instructions and public notification requirements even when spraying herbicides in exempt waters. It also proposes to prohibit activities in exempt waters involving herbicides or mechanical harvesting equipment when manatees are observed. These requirements are consistent with the enabling statute which requires DNR to protect human health, recreational uses, animal life and property in all waters of the state, whether such waters are classified exempt or not. Therefore, the rule is not arbitrary or capricious, and it does not modify the law implemented. The allegation that the last sentence in section is invalid is discussed in other findings of fact and need not be repeated here. The use of copper-based herbicides As a part of their case, petitioners presented extensive testimony on the issue of whether copper-based products are safe for use in waterbodies of this state. They contend that these products should not be subject to any additional restrictions over and beyond those already imposed by the EPA. They point out that EPA product registrations for copper-based herbicides do not restrict water use in any way, and they are labeled for use in drinking water reserviors, fish hatcheries, and crop and non-crop irrigation. Indeed, copper has been in use as a fungicide for at least 5,000 years. Also, no alternative products for the control of algae exist that do not have water use restrictions. In the opinion of one of petitioners' experts, the copper ion used in aquatic herbicides which causes the toxicity to the treated plants is very short-lived and very rapidly complexes with other elements of the aquatic environment so that it is immobilized and no longer toxic. In addition, petitioners rely on the fact that the application rate for copper-based herbicides is less than the tolerance level set by the Food and Drug Administration for finished drinking water. Finally, petitioners cite to studies performed on sheep and apple snails which support their position that there should be no restrictions on the use of copper-based products. In 1990, DNR instituted a policy of limiting the use of copper-based herbicides in natural waterbodies and in areas frequented by manatees. Besides reserving the right to select the least harmful herbicide [rule 16C- 20.0055(1)(a)], and establishing potable water setbacks (rule 16C- 20.0055(1)(a)2.-4.), DNR also intends to codify at least a part of its existing policy as section (2) of proposed rule 16C-20.0035. That section reads as follows: (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above policy does not prohibit the use of copper in natural and non-degraded waters. Indeed, the evidence reveals that DNR has occasionally allowed the use of such products when the circumstances permitted. The underlying reason for DNR's policy, as expressed in the rules, is that copper is a very toxic metal and can migrate to areas where its level is lower, and its effect on organisms in a lake can range from death to sublethal and long term effects. Some organisms are more sensitive to copper than others and the normal levels of copper vary from organism to organism. There are many factors which affect the tissue concentration of copper in any organism, and copper may become available to organisms and aquatic plants by various mechanisms. Bioavailability means that the element is readily available to the biological organisms within a system. Since scientists have not yet determined whether copper is bioavailable, DNR has chosen to take a more cautious approach toward the use of copper until more data is available. The restrictions on copper imposed by the rule do not affect the use of copper-based herbicides in waterbodies where these herbicides have historically been used or in highly degraded artificial waters. This is borne out by the fact that each year chapter 16C-20 licensees apply approximately 21,000 pounds of copper-based products to control aquatic plants. Given the uncertainty of the scientific community as to the long-term effects of copper-based products on manatees and other species, it is not unreasonable for DNR to place restrictions on the use of copper herbicides, particularly when manatees are present, potable water sources are close by, or less restrictive herbicides are available. Moreover, because the EPA registration process does not consider Florida-specific issues, it is reasonable for the state to impose more stringent restrictions than does the EPA on the use of copper products. Accordingly, the rule is not arbitrary or capricious. j. Penalties The final revisions being challenged are found in proposed rule 16C- 20.0075, which authorizes DNR to take disciplinary action against a licensee, assess penalties for violations of the chapter, and require violators to revegetate an affected area pursuant to an approved plan. It also authorizes all law enforcement officers of the state to enforce this chapter. The relevant portions of the rule are set forth below: Following proper notice, the department is authorized to modify, revoke, suspend, annul, or withdraw any permit granted by it, or deny or modify any permit request, if the department determines that the following actions were committed by the permittee or applicant: (grounds omitted) A person violating this chapter may be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or 775.083, F. S. The department is authorized to require any person who violates the provisions of this chapter, by controlling plants without a permit, or controlling more plants than permitted (such as a person controlling plants in non-exempt waters without a permit), to reestablish vegetation in the affected area pursuant to a revegetation plan developed and approved by the department. * * * (5) All law enforcement officers of this state and its agencies with power to make arrests for violations of state law are authorized to enforce the provisions of this chapter. As to section (1), there is no authority in the implementing statutes [ss. 369.20, 369.22, 369.251 and 403.088] for DNR to discipline a licensee. As to section (2), it essentially tracks the language found in Subsection 369.25(5)(a), Florida Statutes, which pertains to aquatic plants. However, that statute is not cited as a source of authority, and none of the cited statutes authorizes DNR to impose by rule the same penal provisions as are found in the general law. Likewise, there is no authority in the statutes for DNR to require by rule that a violator reestablish vegetation pursuant to a plan. Finally, the statutes do not authorize DNR to adopt a rule allowing all law enforcement officers in the state to enforce this chapter. Therefore, sections (2), (3), and (5) are invalid. However, for the reason stated in the conclusions of law, section (1) is not invalid.
The Issue Two issues, one of fact and one of law, are raised in this case as follows: Was the fill material placed in the waters of the state? Is the Petitioner estopped to assert its regulatory powers against the Respondent by the issuance of a permit by the county in which the site is located?
Findings Of Fact In early 1986 the Respondent caused approximately 663 cubic yards of fill material (See Petitioner's Exhibit 4) to be placed on the property at Lake Jackson containing approximately .73 acres (hereafter referred to as the site) described briefly as Section 32, Township 2 North, Range 1 West, Leon County, Florida. Respondent did not deny placing or causing the fill to be placed on the site. Respondent asserted that the point at which the fill was placed was not "waters of the state." In 1980, a predecessor in title to .47 acres of the .73 acres owned by Respondent applied for and received a permit from Leon County for filling on the .47 acres of the present site. This permit provided in part "Additional permits may be required by other regulatory agencies for the proposed projects. Any other required permits should be secured prior to initiation of any excavation or fill activities on these projects." Neither Respondent nor any of its predecessors in interest made application for or received a permit from the Florida Department of Environmental Regulation (DER) to place fill material in waters of the state on the site. When Respondent placed or caused the fill material to be placed on the site in 1986, the Respondent did not implement any of the special conditions or directives contained in the 1980 permit issued by the county. In February 1986, two months after the fill material was placed on the site, the county notified the Respondent by mail to remove the fill because it violated Leon County Ordinances and did not have the required DER dredge and fill permit. See Petitioner's Exhibit 9. Lake Jackson is located in Leon County, Florida. Its waters are waters of the state. The water level of Lake Jackson rises and falls, and would have submerged periodically the original elevation of the site at the point at which the fill was placed. See photographs of area taken in 1980, 1986, and 1987. On March, 1980 David Bickner visited the site. Bickner, a DER Field Inspector, observed and photographed a concrete and stone wall which had been built on the site roughly parallel to U.S. Highway 27. During the period of Bickner's inspection, the water level of Lake Jackson was lower than the elevation of the site; however, willows (Salix spp.) were growing landward of the wall. See Petitioner's Exhibit 8. In February and March of 1986 Roger Menendez visited the site. Menendez, a DER Field Inspector, observed and photographed the wall described above and the fill which had been placed landward of the wall, between the wall and U.S. Highway 27, and in the area north of the line of hay bales. Juncus Effusus, Nymphaea and willow, plant species identified by rule as submerged wetland species, were observed and photographed growing in the filled area and on the area adjacent to it. See Photographs, Petitioner's Exhibit A and B. In late 1986 and the week before the hearing, Todd Campbell visited the site. Campbell, a DER employee with degrees in zoology and ecology, observed the plant species growing in the undisturbed area adjacent to the filled area. All the plants (90-100 percent of the ground cover) were submerged species. Willows were observed by Campbell growing on the fill itself. Campbell made test borings on the fill site in many locations. The borings revealed that the soil beneath the fill was hydric soil typical of the soil immediately adjacent to the filled area. See Petitioner's Exhibits 6 and 7. It was Campbell's opinion based upon his observations of plant species and test borings of soil type that similar vegetation had grown at the original elevation of the site prior to the introduction of the fill. The 88 foot contour line has been established as the ordinary high water line for Lake Jackson based upon the agency's prior experience. All of the area filled was below the 88 foot contour line. See Petitioner's Exhibit 1. The site upon which the fill was placed is waters of the state based upon vegetation observed and photographed by Bickner, Menendez and Campbell. This finding is consistent with the fill being placed below the 88 foot contour line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED That the Notice of Violation and Orders for Corrective Action should be made final against the Respondent. DONE and ORDERED this 30th day of March 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1987. COPIES FURNISHED: Richard L. Windsor, Esquire Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ben H. Ervin, Esquire ERVIN & REICHMAN Post Office Box 41 Monticello, Florida 32344 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 CASE NO. 86-4761 RECOMMENDED ORDER ADDENDUM "A" LEGAL DESCRIPTION Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on the Southerly boundary of a 30 foot roadway thence with said Southerly Boundary run North 87 degrees 56 minutes 04 seconds West 1449.67 feet to a point of curve to the right on the Northeasterly right of way line of State Road No. 63 (U.S, No. 27), thence with said right of way line run with a radius of 11,519.20 feet, through a central angle of 03 degrees 00 minutes 46 seconds for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 613.60 feet to the POINT OF BEGINNING, thence North 52 degrees 20 minutes 01 seconds East 66.06 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 37 degrees 24 minutes 12 seconds West 149.48 feet, thence leaving said Meander Line run South 52 degrees 20 minutes 01 seconds West 82.29 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees 36 minutes 52 seconds East 150.00 feet to the POINT OF BEGINNING, containing 0.255 acres, more or less. Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section, run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on the Southerly boundary of a 30 foot roadway, thence with said Southerly boundary, run North 87 degrees 56 minuets 04 second West 1449.67 feet to a point of curve to the right; to North easterly Right of Way of State Road No. 63 (U.S. No, 27), thence with said right of way run with a radius of 11,519.20 feet through a central angle of 03 degrees 00 minutes 46 seconds, for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 763.60 feet to the POINT OF BEGINNING. From said POINT OF BEGINNING run thence North 52 degrees 20 minutes 01 seconds East 82.29 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 36 degrees 24 minutes 12 seconds West 218.24 feet, thence leaving said Meander Line run South 52 degrees 20 minutes 01 seconds West 105.99 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees 36 minutes 52 seconds East 219.00 feet to the POINT OF BEGINNING, containing 0.47 acres, more or less.
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
Findings Of Fact The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida. The majority of owners of lots in the Hollerich Subdivision are in favor of the gate. The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east. Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds. Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not. The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds. The odor causes nausea, sore throats, and sneezing. Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards. The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels. The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality. The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red. The amount of wrack entering the canal and accumulating there has been increasing over the last five years. The proposed structure will stop wrack from entering the canal and will function as a weedgate. The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety. Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement. DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property. The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest. Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences. DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0599, 86-0600, 86-0601, 86-0954, and 86-0955 l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and 29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22 as being immaterial to the issues herein; and 24-27 as being subordinate. 2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12, 14 and 15 as not being supported by the evidence in this cause. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John H. Voorhees Route 1, Box 612 F Big Pine Key, Florida 33043 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Dale Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The Department of Environmental Protection seeks to impose costs and specific restoration requirements resulting from unpermitted dredging and filling by Respondent. Inherent in that issue are the following: Whether the property at issue was within the Department's dredge and fill jurisdiction at the time the property was filled; and The amount of the Department's costs, if any.
Findings Of Fact The parties' stipulated to the following facts: Petitioner agency has the authority to administer and enforce Chapter 403 F.S. and the rules promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C. Respondent is the developer of a parcel of real property located in Section 10, Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de St. John Subdivision, located at the northwest corner of the intersection of South Main and Southwest 6th Terrace. The property is a wetland area. On February 13, 1992, agency personnel inspected and found fill material had been placed on two areas of the parcel: an area approximately 88 feet by 83 feet for residential development (area 1) and an area approximately 83 feet by 25 feet for an access driveway (area 2). The fill material was placed by Respondent without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92- 0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never applied for a permit and has proposed no mitigation for the filling done without a permit. Jack Dunphy is the supervisor of Petitioner's dredge and fill enforcement section for its Northeast District. He earned a B.S. in biology and has taken postgraduate courses in plant morphology, plant taxonomy (the identification of plants) and wetlands ecology. He has had further annual training by the agency in wetland plant identification. He was accepted as an expert in the identification of wetland species and agency enforcement procedures. At all times material, Mr. Dunphy used the version of Chapter 17-301 F.A.C. accepted as Joint Exhibit B in making his determination that the agency has dredge and fill jurisdiction of Lot 85. The Respondent contended that the agency had no dredge and fill jurisdiction because Lot 85 is an isolated wetland. At all times material, the rules did not place isolated wetlands within agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were amended effective July 1, 1994 to give the agency jurisdiction over isolated wetlands. Both parties place substantial reliance upon Rule 17-312.030(2)(d) F.A.C. which provided in pertinent part: For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for waters exempted by [rule], which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below: * * * (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in [statute]. Standard hydrological methods shall be used to determine which streams constitute intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge and fill permitting unless there is a continuation of jurisdiction as determined pursuant to [rule]. The agency used the procedures outlined in Chapter 17-301 F.A.C. to determine whether Lot 85 was connected either vegetatively or hydrologically to a named water body. Chapter 17-301 F.A.C. lists both the wetland plants and the method for determining dominance of those species. It is undisputed that, under the applicable rules, an area is connected vegetatively to a state water if there is a domination of wetland plants connecting the area to a named water body. It is undisputed that, under the applicable rules, an area is connected hydrologically to a state water if there is an open water connection from the area to a named water body. On the ground, an area may be physically connected to a state water either vegetatively (dominant named species) or hydrologically (by water). On the ground, an area may be physically connected vegetatively and hydrologically. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to establish a jurisdictional connection if an area is connected by a combination of water and vegetation. Respondent contended this is a clear misinterpretation of the agency's own rule. The agency's standard operating procedure at the time Respondent placed the fill was to interpret its rules in para materia to require that its personnel "ground truth" the area in question by first identifying surface waters (a named water body, in this case, Mason Branch and its unnamed tributaries) and proceed landward, by ground, to establish the connection. As long as there was water or dominant jurisdictional vegetation, the agency pronounced a jurisdictional connection. Mr. Dunphy determined that Lot 85 was dominated with wetland vegetation and that the water on that parcel flowed through a culvert under South Main Street and off to the east of the property. South Main Street is a dirt road which has been in place for approximately twenty years. South Main Street physically separates Lot 85, which contains jurisdictional vegetation, from jurisdictional vegetation growing to the east of South Main Street. It does not separate Lot 85 from the lot immediately north of Lot 85, which is also covered with jurisdictional vegetation. The water on Lot 85 and this adjacent lot drains through the same culvert, (hereafter culvert A) under South Main Street to the east. Mr. Dunphy drove through the area and identified what he considered to be an hydrologic connection between Lot 85 and an unnamed tributary of Mason Branch. There is no dispute that Mason Branch is a water of the state. It appears on maps going back to the nineteen-sixties. The unnamed tributary was identified on P-3, the United States Department of the Interior Geological Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to admit that the unnamed tributary could not be described as a "bubbling stream," witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground what they were able to identify as, "an unnamed tributary of Mason Branch." As one responsible for enforcing the agency's dredge and fill rules, Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps, and aerial photographs to determine jurisdiction. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in red ink approximately how Lot 85 is connected to the Mason Branch tributary. In general, water flows from Lot 85 to the lot north of Lot 85 (designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85 and under South Main Street, then through a wetland area marked by jurisdictional vegetation east of South Main Street where it connects to an excavated ditch. The excavated ditch turns to the north where it empties into another wetland area marked by jurisdictional vegetation, and then through culvert B under another dirt road. From there, the water flows through jurisdictional vegetation to the unnamed tributary connecting to Mason Branch. The water course from the end of culvert A to the beginning of the excavated ditch cannot be seen on P-2, an aerial photograph, because of the canopy of the wetland trees. The western beginning of the ditch is indicated by a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2 in a circle. Mr. Dunphy visited the vicinity of Lot 85 eight times between the agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995. Each of the eight times Mr. Dunphy visited the site, water was flowing through culvert A running under South Main Street and Lot 85 was inundated. Water also was running through culvert B. On his first visit to the area, Mr. Dunphy walked from the eastern side of South Main Street, opposite Lot 85, into the woods and saw a small, approximately seven foot wide, defined channel where the water flowed over jurisdictional vegetation east to the ditch. He saw quite a bit of water through this area and water flowing through the channel prior to reaching the ditch. According to Mr. Dunphy, the area east of South Main Street but west of the ditch contained cypress and tupelo trees with buttressed (expanding out) trunks and water lines, lichen lines and moss lines which appeared to be above the level of the street due to periodic inundation of the area. This is the type of hydrologic indicator from which scientific judgment may conclude that inundation or saturation is frequent, whether or not a specific agency rule to that effect is in place. Indeed, it is fairly simple cause and effect logic, and therefrom the undersigned infers, that water in the area has frequently stood higher than the road and may have overflowed the road. Also, on a visit in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt roads in the area were heavily washed out in places by high water. Mr. Dunphy's walking the parcel and tracing the runoff constituted "ground truthing." Because Respondent challenged agency jurisdiction, Mr. Dunphy requested that the agency's Jurisdictional Evaluation Team from Tallahassee also make a determination as to whether or not Lot 85 was within the agency's dredge and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency has assigned them the responsibility for making similar jurisdictional determinations around the state. As an expert in enforcement procedures, Mr. Dunphy regularly relies on the team's opinion concerning jurisdiction. He went to the area with the team during their ground-truthing inspection and relied on the team's report. The report also explains and supplements Mr. Dunphy's direct evidence. That October 26, 1993 report concluded from a visit to the site on October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the vegetation which connects Lot 85 to the unnamed tributary of Mason Branch. The report states, in pertinent part, as follows: The . . . property was inspected 19 October 1993. The property had been timbered recently and most of the canopy trees were gone. Those trees remaining were the same species as the trees on adjacent properties on all sides . . . which were covered with mature swamp hardwood forest. Many of the stumps on the . . . property were sprouting, so they could be identified to species and these were also the same as those on adjacent properties. The dominant canopy species on the adjacent properties were black gum (Nyssa sylvatica var. biflora) and bald cypress (Taxodium distichum). Other species present included dahoon holly (Ilex cassine), red maple (Acer rubra), and slash pine (Pinus elliottii). The gum and cypress tended to make up 80 to 85 percent of the areal coverage of the canopy, with dahoon and maple being the majority of the remainder. Much of the groundcover vegetation . . . consisted of invader species which had moved into the areas of fill. All other species present were wetland plants. A list of the plants found on this property is attached . . . The property was inundated at the time of the inspection. Water exited the property at its north- west corner through a culvert under South Main Street, flowing east into the swamp on the other side of the street. This swamp ran northeast and where it ended a ditch approximately 7 ft. wide turned north to connect to another swamp near Southeast Second Avenue. Water from this swamp passed under Southeast Second Avenue through another culvert and continued into another swamp on the north side of the road. This swamp ran north, turning gradually to the east where it connected to a tributary of Mason Branch. This point of connection was by means of a ditch which flowed through a wet hardwood hammock forest. Flow in all of these waterways was brisk at the time of the inspection and all points of connection were visited and inspected. Mason Branch is a water of the State, therefore all waterways and wetlands connected to it are also waters of the State . . . The property is vegetated by plant species which are currently listed in Sections 17-301.400(2) and Florida Administrative Code. (emphasis supplied) The agency concluded that Lot 85 is within the headwaters of a larger wetland area that constitutes the headwaters of the unnamed tributary of Mason Branch, a water of the state. In 1991, the Respondent had employed Mike Adams to analyze its property for purposes of planned development and to render advice as to what state and federal permits would be required. He visited the area six times and Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts of the subdivision were located in wetlands subject to the jurisdiction of Petitioner agency and the Army Corps of Engineers, and that development required permitting by both those agencies and possibly by St. John's Water Management District. Mr. Adams has a B.A. in biology and an M.S. in environmental management. At the time of formal hearing, he was a Natural Resources Manager for the Florida National Guard. He is a Certified Environmental Professional. He was accepted as an expert in wetland plant identification. In his work as a private consultant for the Respondent, Mr. Adams had determined that Lot 85 was within the Department's jurisdiction. In making that determination, he analyzed whether or not Lot 85 was dominated by wetland plants. Then he determined whether or not the vegetative composition of the wetland plants on Lot 85 extended off-site. In determining that wetland plants were dominant both on-site and off- site, Mr. Adams employed the plant species and the method for determining dominance set out in the Department rules in effect at all times material. Lot 85 was covered with jurisdictional wetland plants such as cypress, sweet gum, black gum and red maples. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and fill jurisdiction because it was part of a headwater wetland. In formulating his opinion, Mr. Adams walked the entire length of the connection between Lot 85 and the waters of the state, starting at culvert A crossing under South Main Street, through the wetlands to the east of South Main Street, along the excavated ditch, across the street to the north and as far as the unnamed tributary of Mason Branch. Mr. Adams drew the path of the connection beginning at the west end of the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85" in it and the culvert under South Main Street with the letter "A". The aerial photograph and oral testimony clearly demonstrated jurisdictional vegetation dominates between culvert A and the west end of the ditch, from the east end of the ditch to culvert B, parallel to both sides of the ditch for the entire length of the ditch. Mr. Adams also drew in green the path of the connection and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map. Exhibit P-3 as printed by the Department of the Interior does not show a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad sheets like P-3 are not 100 percent accurate in identifying water courses. Mr. Adams never relies solely on quad sheets for determining and advising clients concerning Petitioner state agency's jurisdiction. In his expert opinion, the information on the quad sheets must be ground-truthed. In response to questioning as to why various exhibits did not show all the intervening property between Lot 85 and Mason Branch as "wetlands," Mr. Dunphy testified that the USGS maps only depict wetlands in a general way, both because of the scale and how they are created. The USGS Quad Map itself contains a disclaimer stating that its information is not field checked. "Field check" is synonymous with "ground truth." Mr. Dunphy further testified and pointed out that the National Wetlands Inventory Map created by the United States Department of the Interior (R-3) contains a similar disclaimer which specifically provides that map is not an indication of wetland extent as determined by other federal, state and local regulations. Mr. Adams determined that there was an intact vegetative connection for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch was full of water and that the excavated ditch and/or the spoilage (earth thrown up parallel on either side of the ditch when it was dug) was also dominated with wetland plants covered by agency rule. More specifically, although the excavated ditch appears to start at the edge of the wetland area to the east of South Main Street on P-2, Mr. Adams' green markings demonstrated that it actually starts some distance into the wetland area. The ditch feathers out at both its west and east ends, but identifiable wetland vegetation links up to the hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain of wetland vegetation from Lot 85 to the tributary of Mason Branch except for the roads, where the water (a hydrologic connection) flowed through culverts under the roads. At the time Mr. Adams walked the connection route, the area to the east of South Main Street had pockets of standing water but did not have water flowing through it. Although water was not flowing through the area, Mr. Adams concluded that water typically did flow through that area because of the depth of the standing water which initially caused him not to notice culvert A, which was overgrown, and because the plants present in that area were wetland plants. Admittedly, Mr. Adams was less than articulate when examined about the effects of seasonal rains, intermittent rains, and intermittent flow of the water on the ground, but he eventually made himself clear. He first testified that he thought the flow of water from Lot 85 was "intermittent," but he later clarified that he was not using that word as contemplated by the statute and rule. At one point, he testified that by "intermittent," he intended to mean "seasonal," but did not intend to also indicate that the connection met the definition of "intermittent stream" in the statute or rule. He was perfectly candid that the ditch on the east side of the road did not connect water body to water body but connected vegetation to vegetation and water ran through the ditch from vegetation to vegetation. He agreed that if "hydrologic connection" can only mean "water connecting to water" then there is no hydrologic connection between Lot 85 and the unnamed tributary. However, from the whole of his testimony, it is apparent that surface and ground waters are both involved; water flow depends upon rain regularly depositing water upland, and the water stands, flows slowly, or flows rapidly, dependent upon how deep the water gets, to the tributary; there is probably an exchange of waters with the tributary; this is not dependent upon a specific wet season but during drought periods, no flow will be observed. These explanations do not alter or diminish Mr. Adams' opinion that, applying standard scientific indicators of soil, vegetation composition and hydrology, there is a regular connection by surface and ground water between Lot 85 and the unnamed tributary. He was also definite that there was standing water in the whole area when he was there and that he interprets "isolated" as used in the rule to mean no hydrologic or vegetative connection whatsoever exists and that the water would have to exit Lot 85 without going to the water source (state water) only as a result of periodic flow, which he does not believe to be the situation here. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's witness, Jack Buchansky, was unable to independently identify most of the footage of either P-4 or P-5. Exhibit P-4 was irrelevant in large degree. At most, the two videotapes together show a single occasion shortly before formal hearing when South Main Street, Lot 85, and areas in the vicinity were dry, but even so, they show dirt roads with ditches parallel on each side containing standing water and vegetation. Standing water and vegetation also appear in the culvert shown and in the depression between tire tracks or ruts on the roads. The nature of the vegetation was not explained. Except for asserting that the dirt roads have been high and dry for 20 years and during hundreds of his visits and that water only flows in the ditches during heavy rains, Mr. Buchansky testified much to the same effect as the other witnesses: that the area across the street from Lot 85 (the same area identified by other witnesses with an X in a circle on P-2) was a natural drainage or spill area and that he never went back there because the water stands there after each rain; that the vegetation is the same throughout the area except for the barriers created by the roads; and that water drains away from his property toward the east by way of culvert A. The greater weight of all credible competent evidence is that jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows on the lot to the north; that jurisdictional vegetation grows everywhere east of South Main Street, even in the man-made ditch and/or on the ditch's "spoil" connecting two patches of jurisdictional vegetation, and that the depressed water channel over vegetation between culvert A and the west end of the man-made ditch and the man-made ditch itself collect and funnel rain and ground water because each is lower than the surface soil; and that jurisdictional vegetation dominates from the east end of the ditch to culvert B and between culvert B and the tributary. The roads create a barrier to jurisdictional vegetation, but the culverts carry the water between the areas of jurisdictional vegetation. Wherever the water goes, it is possible for seeds to travel and propagate dominant plant species, dependent upon which plants are involved, and the water flows regularly to the tributary. Unrefuted competent testimony shows that restoration of Lot 85 is necessary because Respondent's fill has caused the wetland to lose some of its functions, including filtering ability, habitat for wildlife dependent on the wetlands, and water storage for flood control. Appropriate restoration will require that the fill be removed to the original grade and that a mixture of red maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Mike Eaton was accepted as an expert in the agency's dredge and fill procedures and permit criteria. He visited the site with Mr. Dunphy to determine whether the fill on the property could be permitted. He concluded it could not be permitted without mitigation. The agency prepared an exhibit itemizing expenses it claimed to have incurred in the course of its investigation. The exhibit was not listed in the Joint Prehearing Stipulation and some parts of it may have applied to charges dropped when the charging document was amended. It was not admitted in evidence over objection. Mr. Dunphy testified that he totalled reasonable expenses at $981.16, but his breakdown of what the expenses were and how they were incurred was insufficient to relate the agency's financial expenditures to the sole charge remaining after the amendment. Respondent did not diminish that figure through cross-examination, but stipulated that $250.00 constituted the Department's reasonable expenses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order finding Respondent guilty of the charged violations and requiring: That Respondent shall, within thirty days of the final order, remove from Lot 85 all fill from the Property, which has been placed within the landward extent of the Tributary of Mason Branch in accordance with the restoration plan, attached and incorporated as Exhibit I in the Amended Notice of Violation. All fill shall be removed down to natural, pre-fill elevations and gradings, and shall be disposed of in a site approved by the Department; and Within thirty days of the fill removal, Respondent shall plant a mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10 feet apart. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Within thirty days of the fill removal, Respondent shall tender $250 to the agency as costs. RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 15th day of August, 1995.
Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 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 Whether Respondents have violated Chapter 403, Florida Statutes by dredge and fill activities at Sampson Lake, Bradford County, Florida, and should therefore be subject to corrective action and costs, as set forth in Notice of Violation and Orders for Corrective Action, dated March 4, 1982. This case arises from Petitioner's filing of a Notice of Violation and Orders for Corrective Action against Respondent Dudley P. Hardy on March 4, 1982, alleging that he conducted dredge and fill activities on property which he owned adjacent to Sampson Lake without obtaining a departmental permit for such activities. The notice further alleged that such activities created a stationary installation reasonably expected to be a source of pollution, and sought to have the Respondent take corrective action by restoring the affected area, and also to nay investigative costs, pursuant to Chapter 403, Florida Statutes. Respondent Hardy responded to the Notice of Violation and therein requested an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. He also averred that he only owned a one-half interest in the subject property, and that the other one-half interest was owned by J. D. Odom, Jr. and Vernie Phillips Odom, his wife. Based upon Petitioner's request, a formal hearing under Section 120.57(1), Florida Statutes, was scheduled for July 14-15, 1982, but pursuant to Petitioner's Motion for Continuance, the hearing was rescheduled for August 12- 13, 1982, by Order dated May 24, 1982. Petitioner thereafter amended its notice of violation to include J. D. Odom, Jr. and Vernie Phillips Odom as Respondents in the proceeding as indispensable parties. By Order dated July 7, 1982, Petitioner's Motion for Leave to Amend was granted. By Order of Consolidation dated April 28, 1982, this case was consolidated with five other cases involving similar activities at Sampson Lake. (DOAH Cases Nos. 82-907and 02-909 - 82-912) However, prior to the scheduled hearing, counsel for Petitioner advised the Hearing Officer that the other cases had been resolved by consent orders. At the hearing, Respondent J. D. Odom, Jr. appeared without counsel and was advised of his rights in a Chapter 120 administrative proceeding. He acknowledged his understanding of such rights and elected to proceed without counsel. Petitioner presented the testimony of three witnesses and submitted ten exhibits. Respondent testified in his own behalf and submitted two exhibits. After the conclusion of the hearing, Respondent J. Odom submitted a letter to the Hearing Officer, dated August 17, 1982, which enclosed a copy of a survey which had been previously received in evidence as Petitioner's Exhibit 1, and photographs which had not been received in evidence at the hearing. Petitioner filed a Motion to Strike these matters, and the motion is hereby partially granted. The additional photographs presented by Respondent can not be taken into consideration in this Recommended Order because they were not admitted in evidence at the hearing. Petitioner's post-hearing Proposed Findings of Fact, Conclusions of Law, and Proposed Recommended Order has been fully considered, and those portions not adopted herein are deemed either unnecessary or irrelevant, or unsupported in law or fact. In like manner, the statements made by Respondent Odom in his post-hearing letter that are unrelated to the photographs have been fully considered.
Findings Of Fact By warranty deed, dated March 12, 1980, Sampson Lake Properties, Inc. conveyed a parcel of the land located in Bradford County, Florida to Respondent, Dudley P. Hardy. The property is bordered by Sampson Lake on the west and Rowell Canal on the south. By warranty deed, dated July 10, 1980, Hardy conveyed an undivided one-half interest in the property to Respondents J. D. Odom, Jr. and Vernie Phillips Odom, his wife. (Testimony of J. Odom, Petitioner's Exhibits 5-6, Respondents' Exhibit 1) Rowell Canal is a man-made canal which is designated as Class III waters of the State, and connects lakes Rowell and Sampson, also Class III waters of the State. Lakes Sampson and Rowell are natural lakes that are owned by more than one person. Each lake is larger than ten acres with an average depth of more than two feet existing throughout the year, and neither becomes dry each year. (Testimony of Scott, Farmer, Petitioner's Exhibit 1) Respondents' property lies immediately west of a railroad right-of-way, and a railroad ditch lies parallel to the property next to a railroad trestle. The ditch was approximately 45 feet wide at Rowell Canal and some 215 feet long at the time Respondents acquired the property. (Testimony of Scott, Farmer) At some undisclosed date in 1981, Respondent J. Odom widened and deepened the west side of the ditch with a backhoe in order to create a canal which would enable him to launch boats at the Rowell Canal. The dirt removed from the ditch was piled along the side of the newly created canal. When finished, the canal was some 213 feet long, 20 to 30 feet wide, with depths ranging from 2 to 7 feet. At the present time, a natural earthen plug remains between the excavated canal and the Rowell Canal. During the rainy season, water overflows the plug and any waters from the Odom Canal would interchange to some degree with those of Rowell Canal. (Testimony of Scott, Farmer, Barber, Petitioner's Composite Exhibit 2, Respondents' Composite Exhibit 2) Respondent Odom did not apply for a permit to conduct the dredging and filling activities on his property. After Petitioner became aware of the situation in September, 1981, two members of the enforcement section of Petitioner's St. Johns River Subdistrict visited the site and determined that the Department had enforcement jurisdiction due to the fact that the dominant vegetation for approximately the first hundred feet of Respondents' canal from Rowell Canal to the north was a band of cypress trees (Taxodium Sp.). Such a wetland species serves as a guide to determining the landward extent of waters of the State, pursuant to Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. There is also a large number of pine trees on the property. Thereafter, by letter of November 30, 1981, Petitioner's St. Johns River Subdistrict Manager sent a letter to Respondent Hardy placing him on notice concerning unauthorized dredging and filling activities. (Testimony of Scott, Farmer, Petitioner's Exhibits 3-4, Respondents' Exhibit 2) By warranty deed, dated July 26, 1982, Respondent Hardy conveyed his interest in the property to J. D. Odom, Jr. and Vernie Phillips Odom. (Testimony of Farmer, Petitioner's Exhibit 7) On August 10, 1982, DER personnel took dissolved oxygen readings of the dredged canal. Analysis of the water samples reflected depressed dissolved oxygen levels throughout the canal in violation of water quality standards for Class III waters. (Testimony of Farmer, Petitioner's Exhibit 9) A dead-end canal reasonably can be expected to cause pollution due to the fact that organic matter decays on the bottom and becomes a nutrient trap, thus depressing the dissolved oxygen in the water. During the inspection by DER personnel, gas bubbles were observed in the canal, thus indicating the presence of hydrogen sulphate, which is indicative of anaerobic conditions. The presence of fish in the canal at the present time indicates there is enough dissolved oxygen to sustain life, however. (Testimony of Scott, Farmer, Petitioner's Exhibit 9) Until a few years ago, Sampson Lake had not been developed. However, at the present time many canals have been built and Petitioner has issued twelve notices of violations in the area. Canals such as that of Respondents' can be expected to have an adverse cumulative impact on the waters of Rowell Canal and Sampson Lake due to the entry of water containing excessive nutrients. (Testimony of Barber) Respondent Odom Intended to remove the earthen plug at the end of his canal in order to gain access to Rowell Canal from his proposed cement boat ramp to provide access to Sampson Lake. About twelve to fifteen years ago, a dam was built on Sampson Lake to control the water level. Prior to construction of the dam, a road existed around the lake which could be driven upon approximately 50 percent of the time during dry season. At the present time, Respondent can transport a boat through his property to Rowell Canal with difficulty because of the existing trees. Prior to the dredge and fill activity of Respondent, a boat could be moved through the property to Rowell Canal, generally in the area where the present dredged canal is located. (Testimony of Respondent Odom) Petitioner expended $132.34 in costs of investigating Respondents' dredging and filling activities. (Testimony of Barber, Petitioner's Exhibit 10)
Recommendation That Petitioner issue a final order requiring Respondents to take corrective action with regard to their dredge and fill activities as specified in the Notice of Violation and Orders for Corrective Action, and to pay departmental investigative costs, but withhold the effective date thereof to provide Respondents a period of thirty days to make application for an "after- the-fact" permit pursuant to Rule 17-4.28, F.A.C. If they fail to make such application within the required period, the final order should then become effective. If application is made, the effect of the final order should be staved until conclusion of proceedings on the application. DONE and ENTERED this 7th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Assistant General Counsel and Michael Tammaro, Certified Legal Intern DePartment of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Dudley P. Hardy, Esquire Post Office Drawer 1030 Starke, Florida 32091 J. D. Odom, Jr. and Vernie Phillips Odom, his wife Post Office Box 517 Starke, Florida 32091 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 82-908 DUDLEY P. HARDY, J.D. ODOM, JR., and VERNIE PHILLIPS ODOM, Respondents. /
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereignty Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management systems, and three single-family docks in Vero Beach, Indian River County, Florida.
Findings Of Fact Parties Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island. John's Island is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Robert Prosser uses the Lagoon for boating, kayaking, and fishing. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Michael Casale, Orin Smith, and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that would be affected by the proposed project. Respondent/Applicant Oculina Bank owns the project site, which it acquired through foreclosure, and is named in the agency action that is the subject of this proceeding. The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River- Malabar to Vero Beach Aquatic Preserve. It is also an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be inundated at other times as a result of large storms. The wetlands along the western shore of the Lagoon play a major role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook move into the wetlands and seek out shallow areas to avoid predation by larger fish. When the waters of the Lagoon recede, the juvenile tarpon and snook remain in the wetlands where the predators cannot go. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. During the dry season, the Mosquito Control District pumped water into the impounded wetlands to keep them wet. It discontinued the seasonal pumping many years ago. There was a dispute about whether the wetlands on the project are isolated or are connected to the Lagoon. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places, as low as 2.5 feet in spots on the north and south berms and 3.8 feet on the shore-parallel berm. Therefore, the wetlands can be described as isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above these lowest berm elevations. On the other hand, the Lagoon and the wetlands are connected whenever the water rises above the lowest berm elevations. Petitioners' experts said the project site is still inundated seasonally by waters of the Lagoon, but they did not address the frequency and duration of the inundation. The more persuasive evidence is that the frequency and duration of inundation has been reduced by the impoundment berms. There are almost 14 acres of wetlands impounded by the berms. The impoundment berms and fill along the road comprise 1.71 acres. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the loss of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. Nevertheless, Petitioners' experts believe the wetlands still have high functional value. Dr. Gilmore believes this site is "one of the critical habitats maintaining regional tarpon fisheries." Dr. Gilmore found juvenile tarpon, among other species, in the wetlands on the site. The project site provides nesting, denning, and foraging habitat for numerous birds and other wildlife. Petitioners presented evidence that there might be a small fish, rivulus marmoratus, that uses the site, which is a listed "species of special concern." To the north and south of the project site are salt marsh wetlands that have been restored. North of the project site is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by improving their connection to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. Oyster shells were also observed from 50 feet to 400 feet (the limit of the survey) offshore. There was a dispute whether a significant number of live oysters are present. Oculina Bank's and the Department's experts found no live oysters, but Petitioners' expert found some live oysters and believes they represent an important resource. The rules of the Board of Trustees require greater protection for areas with submerged resources. Rule 18- 20.003(54) defines a Resource Protection Area 1 ("RPA1") as an area within an aquatic preserve which has "resources of the highest quality," which may include marine grassbeds and "oyster bars." A Resource Protection Area 2 ("RPA2") is defined as an area which is "in transition" with declining RPA1 resources. The grassbeds in the area of the proposed dock constitute RPA1s. The oysters in the area constitute an RPA2. The Proposed Home Sites, Access Drive, and Surface Water Management Systems The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. The houses would be connected to public water and sewer lines. The existing impoundment berm along the north boundary of the site and the south end of the frontal berm would be "scraped down" to an elevation of one foot. The re-graded area would be planted with salt cordgrass. If there are rivulus marmoratus using the site, scraping down the berms could destroy some of the crab holes they use for habitat. A culvert will be installed beneath the drive at the north side of the proposed project. The culvert at the north and the removal of a portion of the impoundment berm on the south would allow more frequent and prolonged exchange of water between the Lagoon and the interior of the site. Despite the proposed culvert and removal of a portion of the frontal impoundment berm, Dr. Cox and Dr. Gilmore said the elevated (about seven feet above mean high water) home sites would act as a barrier to water. However, Ms. Garrett-Krauss said the pre- and post-construction condition would be the same. Petitioners failed to prove that the elevated home sites would prevent the interior wetlands from being inundated. Two of the ponds on the site would have to be filled to create the home sites. There is no proposal to establish new ponds. Dr. Gilmore believes the ponds are important for the nursery function of the wetlands. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. At the hearing, Petitioners claimed that a portion of the proposed conservation area was subject to a DOT easement, but they were wrong. Using the Uniform Mitigation Assessment Method ("UMAM") in Florida Administrative Code Chapter 62-345, the parties analyzed the functional values of the site in its pre- and post-project condition. The UMAM analyses conducted by the Department and Oculina Bank showed the project resulted in a gain in functional value for fish and wildlife. Petitioners' UMAM analysis showed a net loss of functional value. The UMAM analyses conducted by Oculina Bank and the Department did not adequately address the loss of the ponds or the impact on rivulus marmoratus. Petitioners contend that the project would have less impact if it were constructed on the most western portion of the site, but Petitioners failed to prove this allegation. Petitioners contend that the impacts of the project have not been minimized because the houses could be smaller. Petitioners do not say how small a "minimized" house should be. Of course, meeting the requirement to minimize impacts does not mean only teepees are allowed. The Department has some discretion in determining, under the circumstances of each permit application, whether reasonable reductions in impacts have been made by a permit applicant. Oculina Bank proposes to build on the most disturbed area of the site and it made costly1/ design changes to reduce impacts to wetlands. These factors, if combined with a demonstration that Oculina Bank would restore the site to create a net improvement for fish and other wildlife, would provide a reasonable basis for the Department to determine that the project impacts were minimized. However, Respondents' evidence that the project would result in a net environmental improvement was contradicted by Petitioners' evidence regarding the refuge and nursery functions of the wetlands and the project's adverse impacts to those functions. Petitioners' evidence on this point was not completely rebutted by Respondents. Oculina Bank did not provide reasonable assurance that the proposed project will not adversely impact the value of the refuge and nursery functions provided by the wetlands. This failure of proof was due mainly to insufficient evidence regarding (1) the interrelationship of exisiting channels and open water features on the site, (2) which features are natural and which are man-made, (3) how those features are used by fish, (4) how they will be altered by the project, and (5) how the nursery and refuge functions of the wetlands would be affected.2/ Under the circumstances of this case, it was not sufficient to merely show that the wetlands would be "re-connected" to the Lagoon. The finding made above should not be confused with Petitioners' argument that the non-natural conditions should be maintained on the site. No such finding is made. The Department did not consider the secondary impacts of the home sites, access drive, and surface water management systems because it had determined that there would be a net improvement in environmental value. However, the loss of refuge and nursery functions would prevent a net improvement in environmental value and it would cause secondary impacts to the tarpon and snook fisheries. Petitioners identified other secondary impacts, such as the impacts of human disturbance, which it said should have been considered. The other impacts discussed by Petitioners were considered by the Administrative Law Judge and it is found that those impacts are insignificant. The Proposed Docks Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Petitioners claim the docks would cause a navigation hazard. However, because the docks meet the length limit specified in rule chapter 18-21, they are presumed not to create a navigation hazard. Petitioners' evidence was not sufficient to rebut this presumption. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. The consolidated permit and authorization limits the vessels that can be moored at the docks to vessels with a draft that would allow at least 12 inches of clearance above the submerged lands at mean low water so no harm would be caused to submerged resources. Signs would be posted at each dock providing notice of this restriction. A dock owner is unlikely to know what size boat he or she is limited to, based on a permit condition which is worded this way. To provide reasonable assurance that submerged resources in the area are protected, the permit condition should be stated as a maximum permissible draft. The Department determined that the impacts of the docks, such as the installation of the pilings and shading of seagrasses would de minimis. That determination is supported by a preponderance of the evidence. Petitioners claim the Department failed to consider shading, prop wash, and scarring to seagrasses and oyster beds, and increased turbidity. Considering the use of grated decking, restricting vessels to a maximum draft, and other related factors, the more persuasive record evidence establishes that these potential impacts would be reduced to insignificance. Oculina Bank made alternative offers to satisfy the public interest requirement of the Department and Board of Trusteees rules; the first was to contribute $25,000 to the Marine Resource Council to remove five acres of non-native, invasive vegetation and plant mangroves on Pelican Island National Wildlife Refuge, which is located in the Indian River Lagoon; the second was to purchase one tenth (0.1) of a credit from the CGW Mitigation Bank. Petitioners objected to the offers as inadequate for various reasons, but as explained in the Conclusions of Law, neither offer is necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection issue a Final Order that denies the Consolidated Environmental Resource Permit and Sovereignty Submerged Land Authorization to Oculina Bank. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 19th day of April, 2013.
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
