The Issue The issues to be determined in this proceeding are: whether the challengers have standing; and (2) whether Proposed Rule 40E-8.221(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The District is a government entity existing and operating pursuant to chapter 373, Florida Statutes, as a multi- purpose water management district. The District has the power and duty to adopt MFLs consistent with the provisions of part I of chapter 373. Sanibel is a barrier island sanctuary in Lee County and a duly-formed municipality with a population of more than 6,000. Sanibel is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. Sanibel is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. That is why tourists come from around the globe to visit Sanibel, and why Sanibel's residents move and remain there. Sanibel actively participated in the rulemaking process for the Proposed Rule from its inception. Sanibel submitted two technical comment letters to the District during the development of the Proposed Rule. Sanibel's natural resources director, James Evans, attended numerous public and technical meetings associated with the development of the Proposed Rule, speaking on the record at each of the public meetings prior to the adoption hearing by the District's governing board. The Town, located on Estero Island in Lee County, is also a barrier island community and duly-formed municipality with a population of more than 6,000. The Town is situated just south of the mouth of the Caloosahatchee River and on the southeastern edge of the Caloosahatchee River's greater estuarine area. The Town is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. Cape Coral is a duly-formed municipality in Lee County and is the largest city between Tampa and Miami, with a population in excess of 150,000. Cape Coral is bordered on the south by the Caloosahatchee River and has over 400 miles of navigable canals and waterways, all of which are within the Caloosahatchee River's greater estuarine area. In addition, Cape Coral has an assigned load reduction allocation under the Basin Management Action Plan (BMAP) for the Caloosahatchee River Estuary (CRE) due to it being designated as impaired for dissolved oxygen and nutrients. Maintaining sufficient flow in the Caloosahatchee River would have a direct impact on Cape Coral's ability to meet its assigned load reduction allocation. In addition to living on or near the water, a substantial number of the residents of Sanibel, Cape Coral, and the Town engage in water-based recreational activities such as swimming, fishing, boating, kayaking, paddle boarding, bird watching, and nature observation in and around the Caloosahatchee River's greater estuarine area. Fort Myers is a duly-formed municipality in Lee County and has a population of approximately 80,000. Fort Myers is bordered by the CRE throughout its entire jurisdictional boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers Yacht Basin), which includes a mooring field and an anchorage field in the Caloosahatchee River. Fort Myers presented testimony that commercial crabbing and recreational fishing have declined and that it has suffered economic harm due to water quality issues. Fort Myers owns the submerged land in the Caloosahatchee River from Marker 39 to Marker 58, and islands in the river. One such island will be used as a park for recreational activities such as canoeing, kayaking, and hiking for visitors to enjoy the Caloosahatchee River. Fort Myers also owns and operates piers and a public boat ramp within the Caloosahatchee River. Fort Myers' dock master has observed declines in seagrasses in the Caloosahatchee River during his 19-year career working at the Ft. Myers Yacht Basin. Fort Myers has adopted a Harbor Management Plan for the management of its mooring and anchorage fields in the Caloosahatchee River. Fort Myers has also been assigned a load reduction allocation under the BMAP for the CRE, and is responsible for a certain amount of pollution reduction over time. Bonita Springs is a municipality of more than 50,000 in Lee County. The borders of Bonita Springs include portions of Estero Bay, which, along with San Carlos Bay and the Caloosahatchee River, is part of the greater Lower Charlotte Harbor Estuary. Bonita Springs includes wildlife refuges, such as the Estero Bay Aquatic Preserve and Lovers Key State Park and Recreation Area. While Bonita Springs' strategic priorities include environmental protection and water quality, it does not have environmental staff or test water quality. Bonita Springs participates in Estero Bay Management and the Charlotte Harbor National Estuary Program (CHNEP). Bonita Springs provides financial assistance to the Caloosahatchee Citizen Sea Grass Gardening Project. Concerns regarding harm to the CRE and tape grasses are shared by a significant number of residents in Bonita Springs and Estero, including injury to the quality of life and recreational uses such as swimming, boating, and kayaking in the waterways. Estero is a municipality of more than 30,000 in Lee County. Estero borders the eastern portion of Estero Bay. Estero includes wildlife refuges, such as Estero Bay Aquatic Preserve and Koreshan State Park. While Estero has environmental policies, it does not have environmental staff or test water quality. Estero makes financial contributions to CHNEP. Estero is concerned that the Proposed Rule will affect its water quality, which could affect its residents' quality of life. Estero believes it could be harmed by poor water quality because its residents are portable retirees who can move away, or tourists who can choose not to visit. Captiva Island is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. CCP is a Florida not-for-profit corporation representing property owners, businesses, and the community of Captiva Island. Captiva Island is part of unincorporated Lee County and is located north of Sanibel. CCP has 200 financial contributors comprised of property owners, businesses, and residents on Captiva Island. CCP's mission includes protection of clean off-shore water, diverse and healthy marine life, and robust native vegetation along with the protection of mangrove fringe and water quality. CCP works with Lee County on provisions of the County's comprehensive plan, which include the quality of adjacent waters. CCP relied on the expertise of James Evans, the director of natural resources for Sanibel, and on the Sanibel- Captiva Conservation Foundation (SCCF). CCP was advised that the Proposed Rule was not sufficient to protect the environment and Vallisneria americana (Vallisneria) or tape grass during the dry season. Caloosahatchee River and Estuary The watershed of the Caloosahatchee River covers approximately 861,058 acres. The watershed consists of four sub-watersheds, three of which are upstream of the S-79 structure. The Tidal Caloosahatchee Basin sub-watershed (estuarine system) is downstream of the S-79 structure. The S-79 structure captures all the upstream discharges of fresh water that go into the estuarine system through the S-79 structure. Major tidal tributaries of the Tidal Caloosahatchee Basin are the Orange River and Telegraph Creek, which drain into the upper estuary downstream of the S-79 structure. Fresh water inflows from these and other tributaries also contribute fresh water into the estuarine system. The Caloosahatchee River was originally a natural watercourse running from its origin at Lake Flirt to San Carlos Bay. It is currently defined as the "surface waters that flow through the S-79 structure, combined with tributary contributions below S-79 that collectively flow southwest to San Carlos Bay." Fla. Admin. Code. R. 40E-8.021(2). Man-made alterations to the Caloosahatchee River began as early as 1884, but major alterations began in the 1930s with the authorization and construction of the C-43 Canal. The C-43 Canal runs 41.6 miles from Lake Okeechobee at Moore Haven, i.e., from the S-77 structure, to Olga, i.e., the S-79 structure. The C-43 Canal serves as a conveyance feature to drain water from the three sub-watersheds located upstream of the S-79 structure and convey regulatory discharges of water from Lake Okeechobee. In 1957, the United States Army Corps of Engineers (USACOE) prepared a report focused on drainage, flood control, and navigation needs of the Caloosahatchee River Basin, and one recommendation was construction of the S-79 structure. The key objectives of the S-79 structure were to eliminate undesirable salinity in the lower Caloosahatchee River, prevent the rapid depletion of water supplies, and raise the prevailing dry weather water table levels. The S-79 structure was constructed in 1965. It is a lock and dam structure that is also known as the Franklin Lock and Dam. The S-79 structure captures all upstream fresh water discharges that go into the CRE. The S-79 structure demarcates the head of the CRE, which extends 26 miles downstream to Shell Point, where it empties into San Carlos Bay in the southern portion of the greater Lower Charlotte Harbor Estuary. Most of this surface water flow takes a southerly route, flowing to the Gulf of Mexico under the Sanibel Causeway that crosses San Carlos Bay. When fresh water inflows are high, tidal action pushes some of this water back up into Matlacha Pass and Pine Island Sound. Additionally, some water exits to the south and flows into Estero Bay through Matanzas Pass. Salinity exhibits a strong gradient in the CRE. Changes in the watershed upstream of the S-79 structure have profoundly influenced the delivery of fresh water to the CRE. Runoff is now more variable with higher wet season flows and lower dry season discharges. Large volumes of fresh water during the wet season can flush salt water from the tidally-influenced sections of the water body, resulting in low salinity conditions throughout most of the CRE. In contrast, fresh water inflow at the S-79 structure can stop entirely during the dry season, especially during significant drought events. This results in saline intrusion that can extend upstream to the S-79 structure. Fluctuations of this magnitude at the head and mouth of the system cause mortality of organisms at both ends of the salinity gradient. Downstream of the S-79 structure, the CRE was significantly altered by multiple dredging activities, including the removal of extensive shoals and oyster bars. Seven automobile bridges, a railroad trestle, and the Sanibel Causeway were built between the 1880s and 1960s. A large canal network was built along the northern shoreline of the CRE in Cape Coral. To provide navigational access from the canal network to deeper water, multiple access channels were dredged within the CRE. Alterations to the delivery of fresh water combined with structural changes to the tidally-influenced sections of the water body have had lasting ecological consequences. These include the loss of extensive shoals and oyster bars, loss of a flourishing bay scallop fishery, and significant decline in seagrass cover in deeper areas. MFLs An MFL is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. The District's rules define significant harm as the "temporary loss of water resource functions, which results from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm." Fla. Admin. Code R. 40E-8.021(31). The rule further specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. Id. MFLs are calculated using the best information available. The regulatory agency is required to consider changes and structural alterations to watersheds, and the constraints such changes or alterations placed on the hydrology of an affected watershed. Certain waterbodies may not serve their historical hydrologic functions and recovery of these waterbodies to historical hydrologic conditions may not be economically or technically feasible. Accordingly, the regulatory agencies may determine that setting an MFL for such a water body based on its historical condition is not appropriate. Caloosahatchee MFL For the CRE, MFL criteria were designed to protect the estuary from significant harm due to insufficient fresh water inflows and were not guidelines for restoration of estuarine functions to conditions that existed in the past. The MFL criteria consider three aspects of the flow in terms of potential significant harm to the estuary: (1) the magnitude of the flow or the volume of fresh water entering the estuary; (2) the duration of time that flows can be below the recommended level before causing significant harm; and (3) the return frequency, or the number of times the MFL can be violated over a number of years before it results in significant harm, recognizing that natural climatic variability will be expected to cause fresh water inflows to fall below recommended levels at some natural frequency. The CRE MFL initially adopted in 2001 was primarily based on the salinity tolerance of one valued ecosystem component (VEC). The VEC was Vallisneria americana or tape grass, a fresh water aquatic plant that tolerates low levels of salinity. A major assumption of this approach was that flow and salinity conditions that protect Vallisneria would also protect other key organisms in the estuary. The 2001 CRE MFL was based on a regression model for estimating the relationship between surface salinity measured at the Ft. Myers monitoring station located in the Ft. Myers Yacht Basin and discharge at the S-79 structure. Although the District monitors surface and bottom salinity at multiple stations in the CRE, the Ft. Myers monitoring station is located centrally in the CRE and at the historical downstream extent of the Vallisneria habitat. The Ft. Myers monitoring station also has the most comprehensive period of record of monitoring data available. The fixed data sondes that monitor surface and bottom salinity are located at 20 percent and 80 percent of total river depth measured at mean low water. The data sondes continuously measure temperature and specific conductivity and, depending on the manufacturer, contains programs that calculate salinity. Those calculations are based on standards recognized and used worldwide by estuarine, marine, and oceanographic scientists.1/ The regression model only implicitly included inflows from the Tidal Caloosahatchee Basin sub-watershed downstream of the S-79 structure. To address this, during the 2003 re-evaluation, a linear reservoir model of Tidal Caloosahatchee Basin inflows was developed. The regression model results showed that a total inflow from S-79 plus the Tidal Caloosahatchee Basin of about 500 cubic feet per second (cfs) was required to produce a salinity of 10 at the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of 300 cfs measured at the S-79 structure would produce a salinity of 10 at the Ft. Myers monitoring station only with additional inflow from the downstream Tidal Caloosahatchee Basin sub- watershed. However, that additional inflow estimate was highly uncertain. The conclusion was that actual flow measurements over a period of time were needed in order to perform more robust calibrations for the new models that were being developed. The Re-evaluation The District's re-evaluation effort began in 2010 after the Conservancy of Southwest Florida filed a petition requesting review of the Caloosahatchee MFL. At the time, the governing board denied the petition but directed staff to undertake additional research and monitoring to ensure a future revision would be supported by the best information available. The first step was to review the September 2000 Final Peer Review Report (PRR) for the initial adoption. The 2000 PRR identified several items the District should consider, including a hydrodynamic salinity model, a numerical population model for Vallisneria, quantification of habitat value for Vallisneria, and documentation of the effects of minimum flows on downstream estuarine biota. The 2000 PRR documented concerns that the current MFL was based solely on the salinity tolerance of Vallisneria and recommended using multiple indicator species. To address those recommendations, the District conducted studies to evaluate multiple ecological indicators, such as zooplankton, aquatic vegetation, oysters, benthic communities, and blue crabs, in the Caloosahatchee from the S-79 structure to beyond Shell Point. In addition, the District collected flow data from the Tidal Caloosahatchee Basin sub-watershed for at least five years to develop watershed, flow, and hydrodynamic models that could properly simulate inflows and salinity responses. When the initial research was complete in 2016, the District published the Draft Science Document containing 11 component studies. In September 2016, the District held a two- day Science Symposium to present the 11 component studies and gather public comment. In response to public comment, the District performed additional evaluations, modeling, and updated the component studies to produce a Draft Technical Document. A Peer Review Panel reviewed the Draft Technical Document, which included the Draft Science Document. The Peer Review Panel has over 150 years of combined relevant scientific experience. The Peer Review Panel toured the CRE by air and water. The District also held a Peer Review Session to engage the public and obtain feedback. The Peer Review Panel's 2017 report (PRP report) stated that the District had "crafted a well-executed and well- documented set of field and laboratory studies and modeling effort" to re-evaluate the CRE MFL. The PRP report supported the 11 component studies, the modeling, the evaluations, and the initial proposed rule language. The Final Technical Document published in January 2018 incorporated five different models and additional science, examining the entire watershed and the criteria itself. The Final Science Document was Appendix A to the Final Technical Document and contained the scientific research and analysis that was done for the 11 component studies, the modeling, and the additional scientific analyses performed in response to public and stakeholder input. The District initiated rule development in December 2017. Rule development workshops were held in February and June 2018 and a stakeholder technical meeting was held in May 2018. The District validated the comments after each workshop and meeting, and revised the proposed rule language. The District published its Notice of Proposed Rule on July 23, 2018.2/ At its September 13, 2018, meeting, the District's governing board held a public hearing on the Proposed Rule. The mayors of Sanibel, Cape Coral, and the Town publicly commented at the hearing. After considering public comments, the governing board adopted the Proposed Rule. The District documented and responded to each public comment, memorializing the information in the Final Technical Document. Later, after the rule workshops and May 2018 technical meeting, the District prepared and presented all of the updated information, including public comment, at the September 2018 adoption hearing. Thus, the District's re-evaluation process was open and transparent. The Re-evaluated Caloosahatchee MFL The science supporting the re-evaluation involved a comprehensive assessment of the effects of diminished dry season fresh water inflows on the CRE. The dry season was chosen for two reasons. First, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats. Second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The 11 component studies targeted specific concerns regarding physical and ecological characteristics. Together they offered a holistic understanding of the negative effects of diminished fresh water inflow on estuarine ecology. The re-evaluated MFL criteria were developed using a resource-based approach. The approach combined the VEC approach and the habitat overlap concept. The habitat overlap approach is based on the idea that estuaries serve a nursery function and salinity determines the distribution of species within an estuary, including distribution during different life stages. The combined approach studied the minimum flow requirements of the various indicator species in terms of magnitude, duration, and return frequency, resulting in the following three aspects of the flow: (1) for magnitude, a 30-day moving average flow of 400 cfs measured at the S-79 structure; for duration, an MFL exceedance occurs during a 365-day period when the 30-day moving average flow at S-79 is below 400 cfs and the 30-day moving average salinity exceeds 10 at the Ft. Myers salinity monitoring station; and (3) for return frequency, an MFL violation occurs when an exceedance occurs more than once in a five-year period. The magnitude component is based on the salinity requirements of Vallisneria, along with results from the 11 studies modeling salinity and considering the salinity requirements of the other VECs. The duration component is based mainly on the estimates of rate of loss of Vallisneria shoots when salinity rises above 10 and the recovery rate of the shoots when salinities fall back below 10. Return frequency was determined based on long-term rainfall records rather than flow measurements from the S-79 structure, which the PRP report felt was well justified. In addition to the component studies, the re-evaluated MFL criteria and existing recovery strategy were evaluated using a suite of hydrologic and ecological models simulating long-term fresh water inflow to the CRE associated with varying management options, the resulting salinity in the CRE, and the ecological response of indicator species that are sensitive to low fresh water inflows. Five models were utilized. Three models simulated fresh water inflows to the CRE: two for S-79 flows; and one for Tidal Caloosahatchee Basin sub-watershed flows. The other two models were a three-dimensional hydrodynamic salinity model and a Vallisneria model. Tidal Caloosahatchee Basin sub-watershed has a number of tributaries that drain fresh water into the CRE. The flow at several of the tributaries was monitored for a five-year period. The measured flow was used to calibrate a watershed model and conduct a long-term simulation. The results showed an average fresh water inflow for all seasons of approximately 430 cfs. The average fresh water inflow during the dry season was 245 cfs while the wet season average fresh water inflow was 613 cfs. Fresh water inflow from the Tidal Caloosahatchee Basin sub- watershed was approximately 20 percent of total fresh water inflow to the CRE while 80 percent was released through the S-79 structure. Petitioners' and Intervenors' Objections 400 cfs Is Too Low Sanibel relied on a memorandum prepared by Dr. David Tomasko (Tomasko report) concerning his company's review of the January 2018 Final Technical Document supporting the Proposed Rule. The Tomasko report, dated October 23, 2018, was in the form of a "technical memorandum" outlining "preliminary findings." The Tomasko report was admitted as a joint exhibit; however, Dr. Tomasko did not testify at the final hearing. The Tomasko report is hearsay that was not used to supplement or explain competent direct evidence. Although hearsay is admissible in this proceeding, it cannot be the sole basis for a finding of fact.3/ See § 120.57(1)(c), Fla. Stat. The District's expert witnesses, who testified at the final hearing, explained that ten of the 11 component studies identified average indicator flows at S-79 ranging from 237 to 545 cfs with standard deviations ranging from plus or minus 57 to plus or minus 774 cfs.4/ The District's experts performed three different evaluations of those flow results. They identified the mean of all the means, calculated the median of the means, and performed a probability density function. The flow results for each of the three evaluations were 381 cfs, 400 cfs, and 365 cfs, with standard deviations that ranged from plus or minus 277 cfs to plus or minus 706 cfs. The District's experts testified that the three flow results are indistinguishable from a statistical point of view. The District chose 400 cfs because it was the highest flow result, and, therefore, the most protective of the three. The Petitioners and Intervenors failed to present evidence that showed any deficiencies in the District's component studies, hydrologic, hydrodynamic, or statistical modeling, or analysis of compliance data. The preponderance of the evidence established that the District used the best available science to calculate the MFL criteria. The District did not act arbitrarily or capriciously when it chose 400 cfs as the magnitude component of the MFL criteria. Inclusion of Salinity in the MFL Criteria The preponderance of the evidence also established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. It supports essential ecological goods and services, is sensitive to salinity fluctuations at the ecosystem scale, and has value to a variety of stakeholders. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. A combination of field monitoring, mesocosm studies, and modeling results allowed the application of Vallisneria responses as a platform to quantify the effects of high salinity duration in the upper CRE. Component Study Eight reviewed the development and initial application of a simulation model for Vallisneria in the CRE. The Vallisneria model was used to evaluate the salinity conditions that led to net annual mortality, or, in other words, the duration of high salinity exposure that led to decreased Vallisneria shoots versus the duration of low salinity conditions required for recovery. Component Study Seven included an analysis of the relationship between the number of consecutive days where salinity at the Ft. Myers monitoring station was greater than 10 and the percentage of initial Vallisneria shoots remaining at the end of each high salinity period. To further evaluate the duration element associated with the MFL criteria, the field monitoring data contained in Component Study Seven was evaluated with the mesocosm and modeling results. All three sources were analyzed similarly to derive a combined curve showing high salinity exposure duration that is significantly harmful to Vallisneria. The model also provided information that was used to quantify the duration of low salinity conditions required for Vallisneria to recover a relative fraction of shoots after high salinity exposure. Merging the exposure and recovery evaluations facilitated a determination of the unfavorable salinity duration that could significantly harm Vallisneria habitat. With significant harm defined as the environmental harm from which two years are required to recover, the determination was that Vallisneria should experience no more than 55 consecutive days of salinity greater than 10. However, stakeholders expressed concerns regarding the percentage loss of Vallisneria habitat after 55 days of high salinity exposure. In response, the District conducted further analysis of modeling results and revised the duration component to accept the stakeholder recommendation, now expressed in the Proposed Rule, of a 30-day moving average salinity greater than 10. The Petitioners and Intervenors argued that by expressing the MFL as a "flow plus salinity component" the Proposed Rule enlarges, modifies, or contravenes the specific provisions of law implemented. However, the duration component is part of compliance and represents the duration of time that flows can be below the recommended level before causing significant harm to the indicator species Vallisneria. The MFL in the Proposed Rule is a 30-day moving average flow of 400 cfs measured at the S-79 structure. Flow is both measured and operationally controlled at the S-79 structure. However, as previously found, there are other sources of fresh water entering the CRE downstream of the S-79 structure. The District does not control and cannot control these downstream sources, which modeling reveals contribute approximately 20 percent of total fresh water inflow to the CRE. By including salinity, the District can account for fresh water inflows coming from the tidal basin when there are low or no flows at S-79 since the significant harm threshold in the CRE is directly related to salinity tolerance of the indicator species Vallisneria. The District's experts also testified that salinity can be used as a flow component because it is not affected by chemical or biological processes and is an indicator of how much fresh water is entering the system.5/ Salinity is included in the duration component of the MFL criteria and is an exceedance criterion because the science established that the salinity gradient is crucial to the overall health of the CRE. Including salinity in the duration component of the MFL criteria achieves the purpose of the statutory mandate to set MFLs that are designed to avoid significant harm to the water resources and ecology of the area. No Unit of Measurement for Salinity The Petitioners and Intervenors argued that the Proposed Rule is vague because the language does not contain any units for salinity. The UNESCO calculation is the standard equation used by the estuarine and marine science community to convert specific conductivity and temperature data to salinity. The District's experts testified that the UNESCO calculation reports salinity as a ratio, which is a dimensionless number and has no units. The District uses the UNESCO calculation and performs the conversion in a spreadsheet that it maintains. In some instances, certain brands of data sondes are programmed to perform the calculation and provide the salinity number. The preponderance of the evidence established that use of the practical salinity unit (PSU) is not technically correct. PSU is a misnomer, a pseudo-unit equivalent to a unitless salinity number. The Petitioners' and Intervenors' expert witness, Dr. Anthony Janicki, conceded there is no difference between reporting salinity as unitless or as PSU. And although technically incorrect, he suggested that placing the word "practical" or putting "PSU" in the Proposed Rule would reduce confusion and vagueness. However, since the preponderance of the evidence established that use of PSU is not technically correct, the use of a pseudo-unit would actually cause confusion instead of reduce confusion. The Petitioners and Intervenors also argued that the Proposed Rule is vague because the language does not state that the method of measuring salinity is specific conductivity, or that the equation used to convert specific conductivity and temperature data to salinity is the standard developed by UNESCO. The Petitioners and Intervenors essentially argued that members of the public and those who may be regulated by the Proposed Rule are left to guess about the method or methods used to measure salinity. Because the Proposed Rule identifies and locates by latitude and longitude coordinates the Ft. Myers salinity monitoring station as the location where salinity would be measured for compliance, the Proposed Rule language is not vague. The Proposed Rule is not vague because it does not describe the data sondes, what parameters are measured by the data sondes, and how those parameters are converted to a salinity number. Salinity Monitoring Location and Mean Low Water The Petitioners and Intervenors argued that the Proposed Rule is vague for failing to define the phrase "20% of the total river depth at mean low water," and is arbitrary or capricious for failing to include more than one salinity monitoring station. Total river depth or the water column depth is a standardized measurement that is made from the surface down to the bottom of the river bed. Mean low water is commonly understood in the oceanographic and coastal sciences community as the average of all low tides over the time period defined as the national tidal datum epic. The District's expert witness, Dr. Cassondra Armstrong, testified that mean low water can be determined by using two documents prepared by the National Oceanographic and Atmospheric Administration (NOAA), i.e., the NOAA tide charts and glossary. The District's expert witnesses testified that "20% of the total river depth at mean low water" is the location of the data sonde at the Ft. Myers monitoring station that measures surface salinity. This is also the depth at which Vallisneria is located in the CRE. Since, the Proposed Rule language simply identifies the location of the existing data sonde at the Ft. Myers salinity monitoring station, the language is not vague. The preponderance of the evidence established that the Ft. Myers salinity monitoring station has two salinity data sondes, the one at 20 percent of the total river depth and the other at 80 percent. The data sonde at 20 percent of the total river depth was identified in the Proposed Rule for the following reasons. First, this is the depth where Vallisneria grows and is representative of the salinity exposure for Vallisneria. Second, it guarantees the data sonde is always submerged and able to record data. Third, it has the most comprehensive period of record of monitoring data available. As previously found, Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. Because the preponderance of the evidence established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE, the choice of the Ft. Myers monitoring station is not arbitrary or capricious. Water Resource Functions vs. Environmental Values The District's MFL rule specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. See Fla. Admin. Code R. 40E-8.021(31). The Final Technical Document identified the relevant water resource functions of the CRE as fish and wildlife habitats, estuarine resources, water supply, recreation, navigation, and flood control. The Petitioners and Intervenors argued that the environmental values listed in Florida Administrative Code Chapter 62-40, also known as the Water Resource Implementation Rule, were not adequately addressed in the Final Technical Document. A proposed rule challenge is not the proper forum to determine whether a proposed rule is consistent with the Water Resource Implementation Rule. Such a determination is within the exclusive jurisdiction of the Department of Environmental Protection under section 373.114(2), Florida Statutes. Consistency of the District's Proposed Rule with the Water Resource Implementation Rule of the Department of Environmental Protection is not a basis in this proceeding for a finding that the Proposed Rule is an invalid exercise of delegated legislative authority. Other Issues The Petitioners and Intervenors raised other issues during the hearing, although not specifically argued in their proposed final order. Since those issues were identified as disputed issues in the Joint Pre-hearing Stipulation, they are addressed below. 1. Elimination of Single-day Exceedance Criterion During the rulemaking process, Sanibel and SCCF sent the District a letter requesting justification for eliminating the single-day exceedance salinity criterion in the current rule. The District staff evaluated the available Caloosahatchee River MFL compliance record, dating back to when the MFL was adopted in September 2001. The District maintains a historical record of MFL monitoring data and reviewed it to determine if the single-day exceedance salinity criterion was exceeded before the 30-day moving average criterion. The compliance record showed five exceedance events of the single-day salinity criterion have occurred. However, the compliance record also showed that the 30- day moving average salinity criterion had already been exceeded before the five events occurred. In other words, the single-day criterion was never exceeded before the 30-day moving average criterion. Based on this evaluation, the District eliminated the single-day exceedance salinity criterion because it did not provide any additional resource protection. The District's decision was not arbitrary or capricious. 2. Not Using the Latest Model Evaluation of recommended MFL criteria and a recovery strategy for the CRE were greatly aided by integration of a suite of hydrologic and ecological models simulating (1) long-term fresh water inflow associated with varying management options, (2) the resulting salinity in the estuary, and (3) ecological response of indicator species that are sensitive to low fresh water inflows. Five models were specifically utilized, including three models for simulations of fresh water inflows to the CRE, a three-dimensional hydrodynamic salinity model, and a Vallisneria model. The three models simulating fresh water inflows included (1) the South Florida Water Management Model (SFWMM) to simulate fresh water discharges at S-79, which includes regional operations of Lake Okeechobee and incorporates Caloosahatchee River irrigation demands; (2) the C-43 Reservoir Model, which uses the SFWMM-simulated daily S-79 flow as input and simulates the management benefit of the C-43 Reservoir; and (3) the Watershed (WaSh) Model to simulate tidal tributary inflow from the Tidal Caloosahatchee Basin sub-watershed. The Caloosahatchee Hydrodynamic/Salinity Model was based on the Curvilinear Hydrodynamic Three-dimensional Model (CH3D) modeling framework with the functionality of simulating the spatial salinity structure across the entire estuary. The Vallisneria Model took the CH3D modeled salinity as input to simulate Vallisneria growth at critical locations in the estuary. The District did review the more recent Environmental Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee Total Maximum Daily Load (TMDL) and being used by the Department of Environmental Protection. The District's expert witness, Dr. Detong Sun, testified that until 2014, the hydrodynamic part of the EFDC model was not working well. He testified that in 2016, the District still had concerns and suggested the use of the District's continuous monitoring data from seven locations across the CRE rather than grab samples for model calibration. Dr. Sun's opinion was that the EFDC model has improved in recent years, but was still behind the CH3D model in terms of performance. The District's expert witness, Dr. Amanda Kahn, testified that the water quality component of the EFDC model was not appropriate for this re-evaluation because the MFL is about water quantity, not water quality. The water quality component of the EFDC model addresses nutrient loadings, not minimum flows. Dr. Kahn also testified that in setting MFL criteria for the CRE, salinity was not a water quality component. Salinity was used as a water quantity component because it does not change with biological processes and can be a measure of how much fresh water is coming into the system. Based on a preponderance of the evidence, the District's decision not to use the EFDC model was not arbitrary or capricious. 3. Seasonality The Petitioners and Intervenors argued that the District is required to set an MFL that varies by season. For the CRE, the District set MFL criteria that protect the system from low flow that would occur in either the wet or dry season. As previously found, the re-evaluation studies focused on the dry season for two reasons: first, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats; and second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The MFL statute states that "when appropriate, [MFLs] may be calculated to reflect seasonal variations." § 373.042(1)(b), Fla. Stat. The preponderance of the evidence showed that for the CRE, it was not necessary to set an MFL that varied by season. Improper Purpose The Petitioners, Sanibel, Cape Coral, and the Town, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Petitioners did not participate in this proceeding for an improper purpose. The Intervenors, Fort Myers, Estero, Bonita Springs, and CCP, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Intervenors did not participate in this proceeding for an improper purpose.
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether the Department should issue Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 43-0197751-003 to Reily.
Findings Of Fact Parties The Department is the agency that approved the permit at issue in this proceeding. The Department is responsible for protecting the water resources of the state in conjunction with the water management districts, and it is also responsible for authorizing the use of sovereignty submerged lands pursuant to a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund. The activities authorized by the permit are as follows: The purpose of the project is to install a 395 linear foot upland retaining wall, with one 10 linear foot return, located at least 5-feet landward of the Mean High Water Line, and an 85 linear foot seawall, with one 10 linear foot return, located at the Mean High Water Line. Riprap shall be installed at a 2:1 (Horizontal:Vertical) slope along the 85 linear foot seawall, and will extend out a maximum of 4-feet waterward of the toe of the new seawall. [3] Reily is the applicant for the permit. Reily owns approximately 17.74 acres of property along Indian River Drive in Jensen Beach, just north of the Jensen Beach Causeway. The Reily property extends from the Indian River on the east to Skyline Drive on the west. Indian River Drive runs north and south through the east side of the property. The Reily property to the east of Indian River Drive is undeveloped except for an existing restaurant, Dena’s, which is on the southern end of the property. There is an existing “RV park” on the Reily property to the west of Indian River Drive. The project will be located to the east of Indian River Drive. That portion of the Reily property is approximately one acre in size, and is only 149 feet wide at its widest point. The property is 24 feet wide at its narrowest point, and more than half of the property is less than 68 feet wide. Petitioners live in single-family homes to the west of the Reily property. Each of their homes is within 300 feet of the Reily property to the west of Indian River Drive, but more than a quarter of a mile from the property on which the permitted activities will be located. Petitioner Anthony Parkinson sometimes drives by the property where the permitted activities will be located when he takes his daughter to school; he has had breakfast at Dena’s several times; he looks at the property from the causeway; and, on at least one occasion, he and his daughter looked at vegetation in the water adjacent to the Reily property for a school project. Mr. Parkinson testified that the project will negatively affect his quality of life because he “came to Jensen Beach because of the natural shoreline and the protection that it afforded to residents in terms of natural beauty” and that, in his view, the project “just adds to the incredible bulk that we have here in the property in terms of building in our natural shoreline.” Petitioner Michael Cilurso drives by the property where the permitted activities will be located on a fairly regular basis. He goes onto the property “occasionally” to “look around.” He has waded in the water adjacent to the property and has seen blue crabs, small fish, and underwater vegetation. Mr. Cilurso testified that the project will affect him in two ways: first, he will no longer be able to “go from the road and just walk down and wade around in [the river] and enjoy the natural resources;” and second, the proposed development of the overall Reily property will affect his “quality of life” because “the density [is] going to be more than what we thought would be a fit for our community.” Petitioner Thomas Fullman can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.” The Permit (1) Generally The permit authorizes the construction of an 85-foot- long seawall and a 395-foot-long retaining wall on the Reily property and the placement of riprap on the sovereignty submerged lands adjacent to the seawall. The seawall will be located on the mean high water line (MHWL). The riprap will be placed adjacent to the seawall, below the MHWL, and will consist of unconsolidated boulders, rocks, or clean concrete rubble with a diameter of 12 to 36 inches. The retaining wall will be located five feet landward of the MHWL, except in areas where there are mangroves landward of the MHWL. In those areas, the retaining wall will be located "landward of the mangroves". The permit does not require the retaining wall to be any particular distance landward of the mangroves or even outside of the mangrove canopy. The drawings attached to the permit show the retaining wall located under the mangrove canopy. The permit does not authorize any mangrove trimming. The areas landward of the seawall and retaining wall will be backfilled to the level of Indian River Drive. There will be swales and/or dry retention areas in the backfilled areas to capture storm water and/or direct it away from the river. The retaining wall will connect to an existing seawall on the Conchy Joe property immediately to the north of the Reily property. The seawall will connect to the approved, but not yet built seawall on the Dutcher property immediately to the south of the Reily property. The permit requires the use of erosion control devices and turbidity curtains during the construction of the walls in order to prevent violations of state water quality standards. (2) Permit Application and Review by the Department On or about June 23, 2005, Reily sought a determination from the Department that the seawall and retaining wall were not subject to the Department’s permitting jurisdiction. The project, as initially proposed, did not include the placement of riprap along the seawall. The Department informed Respondent in a letter dated October 11, 2005, that “the proposed seawall is within the Department’s jurisdiction.” The letter further stated that the Department was going to “begin processing [the] application as a standard general permit,” and it requested additional information from Reily regarding the project. The Department’s request for additional information (RAI) asked Reily to “justify the need for a seawall” and to “provide a detailed explanation” as to why the “use of vegetation and/or riprap is not feasible at the site” for shoreline stabilization. Reily responded as follows: Recent hurricanes have destroyed any vegetation that existed within the area of the proposed seawall. Shoreline has been lost and the DOT has had to backfill nearby upland areas and repair the roads due to significant erosion. The application is proposing to place riprap along the foot of the proposed seawall. There is no reason to believe that there will not be more storms in the near future and it is the applicants’ [sic] position that the seawall for this area is the only way to assure permanent shoreline stabilization and would be in the public’s best interest. The RAI also asked Reily to provide “a detailed statement describing the existing and proposed upland uses and activities.” (Emphasis in original). In response, Reily stated: “The existing upland use is an R.V. resort complex. The proposed use will remain the same.” The RAI also asked Reily to “provide details on the current condition of the shoreline at the site, including the location of mangroves and other wetland vegetation" and to "indicate if any impacts to these resources are proposed.” (Emphasis supplied). In response, Reily stated: “Please see plan view drawing sheet 2 of 4 that clearly shows that the proposed retaining wall will be located landward of the existing mangroves.” The sheet referenced in the response to the RAI does not show the location of wetland vegetation as requested by the Department. The referenced sheet is also inconsistent with other drawings submitted by Reily (e.g., sheet 3 of 4), which show that the proposed retaining wall will be located under the mangrove canopy, not landward of the existing mangroves. Reily’s response to the RAI was submitted on or about February 23, 2006. The Department gave notice of its intent to issue the permit on April 19, 2006. The permit included a number of general and specific conditions imposed by the Department. The permit states a petition challenging the issuance of the permit must be filed “within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.” Notice of the Department’s intent to issue the permit was not published, and the record does not establish when Petitioners received written notice of the permit and the “notice of rights” contained therein. Mr. Cilurso acknowledged that he “found out about the DEP permit to Mr. Reily [approximately] six or eight months before [his] deposition in October [2006]” and then discussed it with the other Petitioners, but that testimony does not establish when the Petitioners received actual written notice of the permit. Petitioners’ challenge to the permit was filed with the Department on or about July 3, 2006. (3) The Related Pitchford’s Landing Project Contrary to the representation made by Reily to the Department during the permitting process, the evidence presented at the final hearing establishes that Reily is proposing to change the use of the upland property from an RV park to a residential development known as Pitchford’s Landing. A master site plan for the Pitchford’s Landing development was submitted to Martin County for approval in April 2006. The site plan (Pet. Ex. 10) shows extensive residential development to the west of Indian River Drive, including single- family lots and multi-story condominium buildings; construction of a sidewalk, bike path, pool, cabana, public pier, and riverwalk to the east of Indian River Drive; the refurbishment of Dena’s restaurant; and the "proposed seawall." Petitioners were aware that the plans for Pitchford’s Landing included a seawall by April 2006, but the evidence was not persuasive that they had received written notice of the Department’s intent to issue the permit at that time. The Pitchford’s Landing development will require changes to the land use designation of the Reily property in the Martin County Comprehensive Plan as well as zoning changes. Those local approvals had not been obtained as of the date of the final hearing. The plans for the Pitchford’s Landing development are being revised based, at least in part, on opposition from Petitioners and others involved in an “association” known as The Jensen Beach Group. Petitioners Cilurso and Fuller are active members of the group, and Petitioner Parkinson has also participated in the group’s activities. Bruce Jerner, one of Reily’s consultants, testified to his understanding that the pool, cabana, and riverwalk shown on the master site plan are being removed from the Pitchford’s Landing development. However, there is no evidence to suggest that the Reily property to the east of Indian River Drive and/or the other improvements on that property (including the hardened shoreline authorized by the permit) are being removed from the Pichford’s Landing develoment. The more persuasive evidence establishes that the proposed seawall, retaining wall, and riprap are part of the larger Pitchford’s Landing development. The walls were referred to on the master site plan for the development; they were depicted and discussed in an advertising brochure as an amenity of the development; and signs advertising Pitchford’s Landing are located on the Reily property to the east of Indian River Drive on which the seawall and retaining wall will be located. There is no evidence that the Pitchford’s Landing development has received a permit from SFWMD under Part IV of Chapter 373, Florida Statutes. The master site plan for Pitchford’s Landing shows several “dry retention areas” to the west of Indian River Drive, and as noted above, there will be swales and/or dry retention areas in the backfilled areas behind the retaining wall and seawall to capture storm water and/or direct it away from the river. It cannot be inferred from that evidence alone, however, that the Pitchford’s Landing development will require permits from SFWMD under Part IV of Chapter 373, Florida Statutes. Merits of the Project The Indian River in the vicinity of the Reily property is a Class III waterbody, an outstanding Florida water (OFW), and part of the Jensen Beach to Jupiter Inlet Aquatic Preserve. The Jensen Beach to Jupiter Inlet Aquatic Preserve is one of three aquatic preserves that encompass the Indian River Lagoon system that extends from Vero Beach to Jupiter Inlet. The Jensen Beach to Jupiter Inlet Aquatic Preserve is 37 miles long and encompasses approximately 22,000 acres of surface water area. The entire Indian River Lagoon system is 49 miles long, with approximately 33,000 acres of surface water area. The Management Plan that was adopted for the Jensen Beach to Jupiter Inlet Aquatic Preserve in January 1985 described the Indian River Lagoon system, and explained its ecological importance as follows: The Indian River Lagoon area is a long, shallow lagoonal estuary important in this region for its value to recreational and commercial fishing, boating and prime residential development. The preserve is in a rapidly growing urban area affected by agriculture and residential drainage. The majority of the shoreline is mangrove fringed, with scattered development in single family residences and a few condominiums. The lagoon is bounded on the west by the Florida mainland and on the east by barrier islands. The Intracoastal Waterway runs the length of the lagoon, which is designated as a wilderness preserve. The estuary is an important home and nursery area for an extensive array of fish and wildlife. The major problems in the continued health of this area include the construction of major drainage networks that have increased the fresh water flow into the estuary, and the loss of wetland areas and water quality degradation associated with agricultural drainage and urban runoff. Additionally, the Intracoastal Waterway and the maintained inlets have changed the historical flushing and circulation within the lagoon system. The Management Plan explained that the “major objectives of the aquatic preserve management program are to manage the preserve to ensure the maintenance of an essentially natural condition, and to restore and enhance those conditions which are not in a natural condition.” The Management Plan recognizes “the rightful traditional uses of those near-shore sovereignty lands lying adjacent to upland properties,” and with respect to bulkheads, the Management Plan states: Bulkheads should be placed, when allowed, in such a way as to be the least destructive and disruptive to the vegetation and other resource factors in each area. Approved uses which do destruct or destroy resources on state-owned lands will require mitigation. The mitigation will include restoration by the applicant or other remedy which will compensate for the loss of the affected resource to the aquatic preserve. Most of the shoreline along the Reily property is a gently sloping sandy beach that has been previously disturbed, and is largely barren of vegetation. There are, however, areas along the shoreline where dense vegetation exists, including wetland vegetation and three stands of mature red and black mangroves. Birds, fish, and wildlife have been observed on and around the Reily property. However, there is no credible evidence that any listed species use the uplands or near-shore waters where the project will be located. The sovereignty submerged lands immediately adjacent to the Reily property on which the riprap will be placed are barren, sandy, and silty. There are seagrasses in the vicinity of the Reily property, but they are 30 to 50 feet from the shoreline. The seagrasses include Johnson’s seagrass, which is a listed species. There are no significant historical or archeological resources in the vicinity of the Reily property, according to the Department of State, Division of Historical Resources. In 2004, Hurricanes Frances and Jean made landfall in Martin County in the vicinity of the Reily property. The hurricanes washed out portions of Indian River Drive, including a portion of the road approximately one-half mile north of the Reily property. After the hurricanes, Martin County considered placing bulkhead along the entire length of Indian River Drive to provide shoreline stabilization and to prevent further damage to the road in major storm events. The county did not pursue the plan because it determined that it was not financially feasible. The portion of Indian River Drive along the Reily property did not wash out during the 2004 hurricanes. Nevertheless, on November 4, 2004, because of concerns for the stability of the shoreline along the Reily property, the Department issued an Emergency Field Authorization to the prior owner of the property allowing the installation of 160 linear feet of riprap along the shoreline. The riprip authorized by the Emergency Field Authorization was to be placed considerably further landward than the structures authorized by the permit at issue in this case. The record does not reflect why the riprap was not installed. The evidence was not persuasive that the Reily property has experienced significant erosion or that the project is necessary to protect Indian River Drive or the upland property from erosion. The project will, however, have those beneficial effects. No formal wetland delineation was done in the areas landward of the MHWL or the areas that will be backfilled behind the proposed seawall and retaining wall and, as noted above, Reily did not identify the location of wetland vegetation and any impacts to such vegetation in response to the RAI. Mr. Jerner testified that, in his opinion, there are no wetlands landward of the MHWL in the area of the seawall, and that any wetlands in the area of the retaining wall are waterward of that wall, which will be at least five feet landward of the MHWL. The Department’s witness, Jennifer Smith, testified that it was her understanding that the wetlands did not extend into the areas behind the seawall or retaining walls, but she acknowledged that she did not ground-truth the wetland boundaries and that wetland vegetation appeared to extend into areas that will be backfilled. Petitioners’ expert, James Egan, testified that the wetlands likely extended into areas that will be backfilled based upon the topography of the shoreline and the wetland vegetation that he observed, but he made no effort to delineate the extent of the wetlands in those areas and he testified that he would defer to the Department's wetland delineation if one had been done. The Department’s wetland delineation rules in Florida Administrative Code Rule Chapter 62-340 contain a detailed quantitative methodology to be used in making formal wetland boundary delineations. That methodology is to be used only where the wetland boundaries cannot be delineated through a visual on-site inspection (with particular attention to the vegetative communities and soil conditions) or aerial photointerpretation in combination with ground truthing. Thus, the Department’s failure to do a formal wetland delineation (with soil sampling, etc.) in the project area was not per se inappropriate, as Mr. Egan seemed to suggest. That said, the more persuasive evidence fails to establish that Reily made an appropriate effort to delineate the landward extent of the wetlands in the project area. No delineation of the wetland areas was provided in response to the RAI, and Ms. Smith’s testimony raises more questions than it answers regarding the correctness of Mr. Jerner’s conclusory opinion that the wetland boundary is waterward of the retaining wall. Without an appropriate delineation of the wetland boundaries, it cannot be determined with certainty whether or not there are wetlands in the areas that will be backfilled. The evidence establishes there may be wetlands in those areas; and if there are, the impacts to those wetlands have not been assessed or mitigated. Riprap is a better method of shoreline stabilization than a vertical seawall without riprap. The riprap helps to prevent shoaling by absorbing wave energy, and it also provides habitat for benthic organisms, crustaceans, and small fish. Native vegetation provides these same benefits, and all of the experts agreed that it is the best method of shoreline stabilization from an environmental standpoint. The use of native vegetation to provide shoreline stabilization along the Reily property is not a reasonable alternative under the circumstances. First, the shoreline has not experienced any significant vegetative recruitment since the 2004 hurricanes. Second, the property is not wide enough to accommodate the amount of vegetation that would be needed to stabilize the shoreline. Third, the properties immediately to the north and south of the Reily property are already (or soon will be) protected by seawalls and/or riprap, rather than native vegetation. The project will not adversely affect the property of others. The evidence was not persuasive that the project will cause erosion or other impacts to the adjacent properties, particularly since the adjacent properties have, or soon will have hardened shorelines. The project will not adversely affect the conservation of fish and wildlife and, to the contrary, the riprap will provide a benefit to fish and wildlife by providing shelter and habitat for benthic organisms, crustaceans, and small fish. The project will not adversely affect endangered or threatened species or their habitat. The only listed species shown to exist in the vicinity of the project, Johnson’s seagrass, is 30 to 50 feet from the shoreline, which is too far away from the project to be affected even if, as suggested by Petitioners' experts, the impact of wave energy on the walls will cause increased turbidity and sedimentation. The project will not adversely impact the fishing or recreational values or marine productivity in the area. The waters in the vicinity of the project are not shellfish harvesting areas, and the riprap will provide beneficial habitat for small marine life. The project will not adversely affect navigation. The riprap will extend only four feet into the Indian River in an area of shallow water far from the channel of the river. The project will not cause harmful erosion or shoaling or adversely affect water quality in the area. The evidence was not persuasive that wave energy will routinely impact the retaining wall to an extent that will cause increased turbidity or sedimentation in the surrounding waters, and all of the experts agreed that the riprap will help to prevent this from occurring along the seawall. Moreover, the swales and/or dry retention areas behind the seawall and retaining wall will help to filter storm water runoff from Indian River Drive and the adjacent upland properties, which may enhance the water quality in the vicinity of the project. The project will not result in any adverse secondary or cumulative impacts to the water resources. The adjacent properties already have hardened shorelines. The permit conditions include adequate safeguards (e.g., turbidity curtains and erosion control devices) to protect the water resources in the aquatic preserve during construction of the project. Any impact (either positive or negative) of the project on the aquatic preserve and the Indian River Lagoon system as a whole will be de minimus in light of size of the system in comparison to the small size of the project and its location between two hardened shorelines near a man-made causeway.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing Petitioners’ challenge to the permit/authorization for a lack of standing, but if the Department determines that Petitioners have standing, it should issue a final order denying permit/authorization No. 43-017751-003 absent an additional condition requiring an appropriate wetland delineation to show that the upland aspects of the project will occur outside of the mangrove canopy and any other wetland areas landward of the MHWL. DONE AND ENTERED this 12th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2007.
Findings Of Fact Respondent is a water management district established pursuant to Chapter 373, Florida Statutes. Respondent purchased certain properties located in the St. Johns River Basin between State Road 46 and State Road 50 known as "Seminole Ranch" ("the property") in 1981, in part with moneys provided by the Water Management Lands Trust Fund pursuant to Section 373.59, Florida Statutes. The property is composed of approximately 28,000 acres abutting the St. Johns River. Petitioner, Friends of the St. Johns, Inc., is an incorporated organization dedicated to the restoration and preservation of the ecology of the St. Johns River system. Membership in the organization numbers between three and four thousand, including group members, over half of whom use the river for recreational and other purposes. Many of the members of the group also own property fronting on the St. Johns River. Petitioner, Chester Brown, is a member of Friends of the St. Johns, Inc., and is also a landowner whose property is located north of Seminole Ranch bordering on the river. The St. Johns River in that location runs from south to north. Contrary to its own staff's recommendation, the Respondent's governing board on March 10, 1982, voted to approve the execution of a cattle-grazing lease, leasing the property to C. W. Mann Bailey. The lease was executed on May 12, 1982, for a term of one year, commencing August 30, 1982, and expiring August 29, 1983. The Upper St. Johns River Basin, in which the property is located, is a highly stressed marsh system that has historically sustained environmental degradation due to floodplain encroachment and agricultural impacts. From approximately 1938 until the time of the district's purchase of the property in 1981, the property had been used continuously for the grazing of cattle. At the time the property was purchased by the district, approximately 2,500 head of cattle were being grazed on the land. In addition, controlled burning to encourage the growth of forage material was utilized as a land management tool in both the upland and marshy portions of the property. The hydrology of the Upper St. Johns River Basin renders it susceptible to numerous unquantifiable sources of pollution. The predominant portion of the nutrient loading to the river system in the area of the property" occurs upstream of the property. Significant nutrient impacts are also attributable to the convergence of the Econlockhatchee River with the St. Johns River system downstream of the property. Recent water quality analyses conducted during high flow conditions reveal no increase in the concentration of nutrients in the area of the property between State Road 46, located to the south, and State Road 50 to the north. The lease in dispute in this proceeding contains certain mitigating covenants which require the lessee, at his expense, to: restrict the number of cattle on the property to a 1,500-head daily average in order to better protect the ecosystem on the property; construct and maintain an access around the property perimeter for use as a fire break; repair and maintain all existing roadways on the property; abstain from timber removal except with district consent; maintain the premises in good repair; assist in protecting historic and archaeological sites on the property; guard against and report all fires and limit all controlled burns to the uplands, and then only with permission of the Florida Division of Forestry; protect threatened biota and species as designated by statute; report all violations of game laws to proper authorities; protect the property against trespassers and vandalism; and provide a resident manager to ensure compliance with these contractual covenants. In addition, the lessee is required under the terms of the lease to pay an annual rental to the district of $50,000. These mitigating covenants are particularly important in light of the short span of time in which the property was offered for purchase to the district and the decision to purchase, all of which occurred at a time when the district had little or no budgeted capacity to adequately manage the land. The disputed lease represents but one component of an interim land management plan, the benefits, including income to compensate for management expenses, surveillance, and maintenance, provide the district with a Provisional management option until a comprehensive, fiscally feasible, land management plan is developed and implemented. The district has, apparently, determined that upon expiration of the current lease, the property will not again be leased for cattle grazing. The record in this proceeding clearly establishes that long-term use of property abutting the St. Johns River for cattle grazing has had adverse water quality impacts on the receiving waters. This fact is due both to deposition of fecal material into the water column, both directly and through runoff, and by cattle cropping marsh vegetation thereby adversely affecting both primary productivity and repropogation of plant species. However, the record also establishes that most damage attributable to cattle raising is not irreversible, and that, once cattle are removed the marsh will recover. In addition, the record in this cause is completely devoid of any evidence quantifying the impact of cattle grazing on the property on the adjacent marsh and river systems as indicated above, cattle grazing has been continuously conducted on the property since approximately 1938. As a result, it cannot be found on the basis of this record that cattle-grazing activities conducted on the property in any way violate water quality criteria contained in Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code, or have any quantifiable affect at all on the surrounding ecosystem. The record in this cause clearly establishes that the governing board of the district was faced with a decision requiring weighing the continued effect of cattle grazing on the property against its present ability to effectively manage the property on a short-term basis. In resolving this dilemma the governing board chose a middle ground whereby mitigating covenants were placed in the lease to lessen the prior impact of cattle grazing on the property and its surrounding area, and at the same time allow effective management of the property over the short term until a comprehensive land management plan could be developed. This decision has ample factual support in the record, and is a rational and reasoned response to the board's dilemma.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
The Issue This proceeding concerns Clarence E. Middlebrook's application #2-069- 0785AUSMV for a consumptive use permit for his project at Wekiva Falls Resort. Staff of the St. Johns River Water Management District have recommended approval of the application with certain specific limiting conditions. Petitioner, Middlebrooks, contends that the limitations placed on the approval are inappropriate and are so onerous as to preclude the continued use of his facility for public bathing. Petitioner, STS, claims that the present recreational use is not a reasonable beneficial use, interferes with existing legal users of water and is not in the public interest. STS urges limitations more restrictive than those proposed by the district staff. The basic issue for resolution, therefore, is what conditions should be placed on an approval of Middlebrook's application relating to recreational use. Approval of his application relating to an existing household consumptive use permit is not at issue. The parties have stipulated that STS has standing as a petitioner in this proceeding. In addition, in their prehearing statement filed on August 28, 1989, the parties have stipulated that the 14-inch and 28-inch standpipes on the Wekiva Falls Resort are governed by and subject to the provisions of Chapter 373, F.S., and Chapter 40C-2, F.A.C. and are legally considered to be wells for purposes of this proceeding.
Findings Of Fact In their Prehearing Stipulation filed on August 28, 1989, the parties have agreed: Middlebrooks is a private individual who co- owns, along with his wife, and does business as the Wekiva Falls Resort in Lake County, Florida. STS is the owner of approximately 1,842 acres of land contiguous to the southern and western boundary of the Wekiva Falls Resort. The District, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373-219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. On September 4, 1985, Petitioner submitted to Respondent a CUP application No. 2-069-0785AUS to withdraw a maximum of .123 million gallons per day (MGD), i.e. 31.7 million gallons per year (MGY) of water for household type use from two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. An administrative hearing was held regarding that application on November 6 and 7, 1986, and a final order was issued on May 14, 1987. The final order was appealed to the Fifth District Court of Appeal which issued its opinion on July 7, 1988 (529 So.2d 1167). Permit No. 2-069-0785AUS was issued by the District as result of these proceedings. Middlebrooks returned the permit by mail to the District. On September 13, 1988, Middlebrooks submitted to Respondent a CUP application No. 2-069-0785AUS to request approval of a maximum of .123 MGD (31.7 MGY) of water for household type use, which was revised on February 21, 1989, to request a maximum 14.26 MGD of water from the two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Middlebrooks' property in Lake County, Florida. On March 20, 1989, District's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application No. 2-069-0785AUS. Both Middlebrooks' and STS' petitions for administrative hearing were timely filed with the District. In 1968, C.E. Middlebrooks purchased the 140 acre tract on which the wells are located. The property is bounded on the east by the Wekiva River, and on the west by Wekiva River Road. At the time of purchase the property was underdeveloped and overgrown. Shortly after purchase, Middlebrooks inspected the property and found an oval-shaped depression from which water was flowing. Such flow is common in this area along the corridor of the Wekiva basin. These surficial seeps, also called artesian flows, emanate from the surficial and intermediate aquifers. This, and other substantiative findings regarding the characteristics of the property, were made in the recommended order as adopted in the final order in case #86-2101, on May 13, 1987. Still, Petitioner insists that the water was from a natural spring. The only new evidence presented by Petitioner regarding the existence of a "spring" is the testimony of William Shell, who in the late 1930's used to fish with his father in the tributaries and streams off of the Wekiva River. William Shell claims that he and his father took a 10-foot canoe back into the property and he swam and fished in the "spring". Shell was imprecise as to the location of the spring and conceded that the site identified on a map attached to his statement could be as much as five miles off. His testimony as to the existence and location of a spring is unpersuasive in the face of the contrary historical evidence from aerial photographs, soils and geological survey maps, and the well driller's log describing the strata through which the 24-inch well was drilled. In undertaking the development of the property, Middlebrooks dug out the area in which the wells were ultimately drilled, utilizing a dragline to clear out what is now the existing stream bed between the oval-shaped depression and the area which is now the marina (or canoe basin). Extensive dredging was done to develop the marina at a point approximately 200 feet west of the Wekiva River, and additional dredging was done to connect the marina to the Wekiva River in order to have access by boat to the Wekiva River. The stream which now extends from the western boundary to the Wekiva River is called Canoe Creek. In order to maintain the swimming area and the section of Canoe Creek extending eastward from the swimming area to the Wekiva River, it is necessary for Middlebrooks to dredge the area every two to three years. In 1972 as a part of the development activities described above, Middlebrooks hired a well drilling contractor to drill a 14-inch well at a location within the oval-shaped depression. The well was drilled into the Floridan aquifer to a depth of 107 feet, and well casing 14 inches in diameter was driven to a depth of 58 feet. In 1973 Middlebrooks hired a second well drilling contractor to construct a second well within the oval-shaped depression slightly ease of the 14-inch well. The second well was drilled into the Floridan aquifer to a depth of 120 feet, and well casing 24 inches in diameter was driven to a depth of 80 feet. As part of his development activities, Middlebrooks constructed concrete towers around each of the wells and placed diffuser plates and planters on top of each to give the appearance of a waterfall. A concrete wall and sidewalk were constructed around the oval-shaped area. The water flowing from the wells discharges into the oval-shaped swimming area and then flows eastward through Canoe Creek until it reaches the Wekiva River. Middlebrooks' business, known as Wekiva Falls Resort, has a total of 789 campsites located on the northern and southern sides of the property. The swimming area, which extends from the western end of the concrete-enclosed oval- shaped area where the wells are located, to the wooden bridge which crosses Canoe Creek just west of the marina, is licensed by the Florida Department of Health and Rehabilitative Services (HRS) as a public bathing facility. Middlebrooks also offers canoe rentals and paddleboat tours of the Wekiva River, each of which originate from the marina. Middlebrooks' present business operation centers around the water-based recreational opportunities provided by the water emanating from the wells. The facility employs approximately seventeen persons. Groundwater from the Floridan aquifer flows from the two wells under artesian pressure. Middlebrooks testified that he had calculated the discharge from the two wells to be 12.5 mgd and 12.72 mgd, although his records for the period from April 1986 through January 1989 showed average daily flow from the two wells to be 12.98 mgd. The prior final order entered in this matter determined average daily flow to be 12.47 mgd. Because these are artesian wells, flow varies depending on hydrologic conditions. The gate valve for the 24-inch well was frozen in the open position approximately 12 years ago and has since been encased in concrete making it inoperable. There is a diverter valve at water level, which, if opened, would increase the flow volume from the well, but which has no control over the amount of water flowing through the top of the well. As the well is presently structured, water essentially free flows from the well; Middlebrooks can control flow from the 24-inch well only through manual insertion of a poppet valve which must be first hoisted to the top of the well with a crane and then mechanically inserted into the top of the well. The only time this device is used is when Middlebrooks shuts down the well in order to do dredging or other maintenance activities. Early in 1989, the concrete tower encasing the 14- inch well fell over and had to be removed from the swimming area. The well casing was cut off at pool level, removing the gate valve on it. Although flow increased from the 14- inch well as a result of shortening the length of the casing above ground, Middlebrooks mechanically inserted a poppet valve into the top of the remaining casing in order to restrict flow. Middlebrooks contends that, with the restrictor device which is inserted in the 14-inch well, flow is essentially the same as it was before the casing was cut down and the valve removed. In 1973, shortly after the 24-inch well was constructed, USGS did an analysis of the water coming from the well to determine chloride concentrations. Chloride concentrations were measured at that time to be 230 parts per million (ppm). Chloride concentration is a measure of salt content in the water. The benchmark figure for chloride concentration in water as determined by the United States Environmental Protection Agency (EPA) is 250 pp. Water which exceeds 250 ppm in chloride is nonpotable. At the time these wells were drilled, the water was potable. At the base of the Floridan aquifer in the area in which Middlebrooks' property is located is a layer of seawater, extremely high in chloride concentrations, which became trapped when the ocean water which once covered Florida receded and dry land emerged. This water is called relic sea water and is necessarily very old water. Significant discharges through a well in this region can cause the interface between the fresh water in the Floridan aquifer and the relic sea water to move upward toward the cone of influence of the well and break. This is followed by turbulent mixing of relic sea water and fresh water and results in elevated chloride concentrations in the water discharged from the well. This water is sometimes referred to as connate water. Subsequent tests of the chloride concentrations in Middlebrooks' well have been done, both as part of a regional study done by the district and in preparation for this litigation. These test results show significant changes in the chloride concentrations in the water flowing from Middlebrooks' wells. Samples taken by the district in March and October 1986 showed concentrations of 312 ppm in the 14-inch well and 296 ppm for the 24-inch well for March, and 300 ppm for each of the wells in October. The 14-inch well was sampled again by the district in March and April 1989 and showed levels of 335 ppm and 296 ppm respectively, and an April 1989 sample from the 24-inch well showed 317 ppm. Samples taken by Jammal and Associates on August 5, 1989, showed 280 ppm for the 14-inch well and 290 ppm for the 24-inch well. Averaged, these results show concentrations over the 1986-89 period of 304 ppm for the 14-inch well and 300 ppm for the 24-inch well. The changes observed from the 1973 test and the 1986- 89 tests cannot be attributed to seasonal variations. The only samples taken since 1974 from the wells which do not show significant changes in the chloride concentrations are samples which were collected by Middlebrooks himself. The validity of these results is less credible than the results outlined in the previous paragraph, given the expert testimony supporting the former results. Further, the results shown from the samples collected by Middlebrooks are questionable in light of the elevated levels of minerals (including chlorides) which were noted in the analysis of waters taken from Canoe Creek, through which the water coming from the wells flows to the Wekiva River. The water flowing from Canoe Creek is 17 times higher in chlorides than water in the Wekiva River. Chloride levels in the swimming pool area were measured by Dr. Harper at almost 300 ppm. Even Dr. Roessler, an expert called by Middlebrooks noted high levels of mineralization in the water flowing through Canoe Creek to the Wekiva River from the wells and agreed that reductions in flow from the wells would result in reduced chloride concentrations within Canoe Creek. The importance of the significant increase in chloride concentrations in the water flowing from Middlebrooks' wells, as noted, is that the groundwater coming from those wells in no longer potable. Continued discharge from the wells at the current free flow level will aggravate the problem of increasing chloride levels in those wells and in the immediate vicinity of those wells. If no action is taken to address the upward movement of the saltwater-freshwater interface, there is a potential for transmittance of connate water to wells of adjacent landowners. Reduction in the flows from Middlebrooks' wells would stabilize the saltwater-freshwater interface beneath his wells. This could result in lower chloride concentrations in the water flowing from Middlebrooks' wells, and at the very least, there would be no further aggravation of the problem. Section 10D-5.120, Florida Administrative Code, governs public bathing facilities such as Middlebrooks', and essentially has two water quality requirements. The first is a flow-through requirement which specifies that there must be minimum flow of water through the facility of 500 gallons per bather per 24 hours. The second requirement is that total coliforms must not exceed 1000 most probable number of coliform organisms (mpn) per 100 milliliters. Although Middlebrooks' HRS license for his public bathing facility does not limit the number of bathers who may use his facility, there is an existing injunction obtained against Middlebrooks by Lake County, Florida, which allows a maximum of 2500 persons on the entire premises per day. Middlebrooks has made no effort in the past, nor does he presently make any effort to determine how many patrons actually use the bathing facilities on a daily basis. As the prior final order noted "for all the record shows, he may have never had that many (the maximum) since his permit was issued". The only evidence of actual usage of the bathing facilities showed a maximum of 290 persons in the pool area on a summer weekend. Regardless of how few, if any, persons utilize the bathing area under present conditions, the same amount of water flows from the wells daily. The stream which extends from the western end of the swimming area to Wekiva River Road and then off site receives drainage during wet weather conditions from offsite areas. All of Canoe Creek including the portion west of the swimming area is essentially a catch basin for surface water drainage from Middlebrooks' property. Surface water drainage enters Canoe Creek through overland flow, through swales conveying stormwater to it, and through an assortment of stormwater drainpipes which drain parts of Middlebrooks' property as well as off-site areas. The water entering Canoe Creek from this surface water drainage is extremely high in total coliforms. There are no significant stormwater treatment facilities on the site. A concrete weir with a spillway separates the swimming area from Canoe Creek west of the swimming area. The water in Canoe Creek immediately west of the swimming area is extremely high in total coliforms. A sump pump has been installed just west of the weir which, under normal weather conditions, is capable of pumping enough of the water into a roadside swale, thereby diverting it around the swimming area, to prevent this high coliform water from overtopping the weir and flowing into the swimming area. However, under rainfall conditions, the pump will not prevent this drainage from spilling over the weir and Middlebrooks does not run the pump continuously. Water has also been observed spilling over the weir into the swimming area under normal conditions. The higher coliform water which is pumped into the roadside swale is reintroduced into the swimming area through a culvert pipe midway between the oval area, where the wells are located, and the marina. There is also an apparent influx of total coliforms through surficial seepage and other sources internal to Middlebrooks' property. One of these sources of coliforms could be the wastewater treatment plant operated by Middlebrooks on the property. Other than the part-time operation of the sump pump, which was installed for aesthetic reasons rather than water quality reasons, Middlebrooks has done nothing to control the numerous sources of total coliforms to his swimming area, nor does he propose any modifications to accomplish this in his application. Instead he has relied and proposes to continue to rely on the 12.5 mgd flow of water from his wells to dilute the total coliforms entering the swimming area in order to meet the HRS standards for water quality. Middlebrooks dismisses any alterations to the site to address these total coliforms sources as "impractical". To the contrary, it is practical, technologically feasible, and economically feasible to control the introduction of coliform to the swimming area and meet HRS standards by preventing introduction of coliforms rather than relying on massive amounts of groundwater to meet the standards through dilution. One means would be to operate a sump pump around the clock instead of only on a part-time bases. Installation of additional toilet facilities for campers would reduce the use of Canoe Creek and its vicinity as a toilet. More importantly, treatment facilities such as retention and detention areas to treat stormwater runoff before it enters Canoe Creek, as well as diverting the water around the oval part of the swimming area, would enable Middlebrooks to comply with HRS total coliforms standard without the necessity of utilizing 12.5 mgd of groundwater. Reducing the flow of water from Middlebrooks' wells in accordance with the recommendations contained in the District's staff report would not cause blowouts or any other adverse geological consequences on his property or elsewhere. As indicated earlier, this region is characterized by artesian flow, and there is the potential for increased discharges from springs or other discharge points within the vicinity of Middlebrooks' property if flow is reduced from his wells. Overall, the area should return to a more naturally balanced system such as existed before the wells were constructed. The flow which discharges presently through the wells produces enough water to supply the domestic needs of 90,000 people. Reduction in the discharge from the wells would make additional water available for use for other beneficial purposes within the area as the water which now discharges from Middlebrooks' wells could be withdrawn at other locations within the vicinity of Middlebrooks' property. Through properly spacing wells and limiting their depth, (skimming well fields) these other uses of water could occur without aggravating the existing problem with chloride concentrations. Middlebrooks and one of his employees described water upwelling within the swimming area on one occasion when flow was stopped from the wells. While this would not be unusual in an area characterized by artesian flow, it may also be an indication that well construction problems exist with either or both of the wells. Having the wells geophysically logged as is required in the permit conditions proposed by district staff, would reveal, among other things, whether the well is properly grouted and sealed. If the wells are not properly sealed contaminated connate water could be allowed to move upward and interchange with other water-bearing zones, resulting in chloride contamination in those zones as well. The aquatic and wetland habitat associated with Canoe Creek can be divided into three distinct segments: (1) the intermittent stream extending westward from the weir and spillway to Wekiva River Road (hereinafter "the intermittent stream"); (2) the swimming area which begins at the weir and extends to the bridge just west of the marina (hereinafter "the swimming area"); and (3) the marina which encompasses the dredged boat basin and that portion of Canoe Creek extending eastward from the marina. These three segments have varying importance as aquatic or wetland habitats and can be separately characterized according to the impacts which would be felt from a reduction in the flow of water from the wells as recommended by the district staff report. The intermittent stream is characterized by slow flowing or stagnant water. There are species indicative of a wetland system associated with the channel here, although the banks of the stream have been mowed and maintained. Aquatic and wetland dependent species do utilize this part of the stream; however, they are in less abundance than in other parts of Canoe Creek. Because the hydrology of this portion of the stream is not affected by the flow from the wells, there would be no impact on this area if flow from the wells is reduced. The swimming area, which consists entirely of hard sand, is devoid of biological activity as a result of the regular mechanical maintenance performed on it by Middlebrooks, leaving no vegetation in the channel. Although there are aquatic species which utilize primarily the oval-shaped part of the swimming area, many of these are exotic species. In any event, there would continue to be a flow of water to maintain that environment. The southern bank of Canoe Creek in the swimming area down to the water's edge has been cleared, sodded, and is maintained as a lawn. There are no wetland plant species in this area. There are trees along the northern bank of the stream in this area, and it is less disturbed than the southern bank; however, the understory has been removed. Overall, there would be minimal impact to the aquatic and wetland species within the creek itself, and no impact to plant species along the banks of the creek if flows are reduced in accordance with the District staff' s recommendation. The marina area and the creek eastward of it provide the most abundant and productive part of the creek for aquatic species. This portion of the creek is at the same grade as the Wekiva River and therefore is in equilibrium with the river. Water levels are controlled by the pulse of the river, rather than the flow from the wells, and will be unchanged by reduction of flow from the wells. Although there would be a reduction in the amount of water moving through this area, there would be little, if any, impact to the functions of this portion of the creek as an aquatic habitat if the reduction in flow recommended in the district staff report were accomplished. Viewed as a whole, Canoe Creek, because of the wells and the alterations made to the site by Middlebrooks, is an altered natural environment with an artificially created and maintained ecosystem. The primary natural feature associated with this property is the riverine forested wetlands which extend approximately 200 feet inland from the Wekiva River. This area lies within the floodplain of the river and is influenced by the rise and fall of the river. These wetlands would not be affected at all by reduction in flows from the wells. Middlebrooks has contended that the flow from his wells provides a benefit to the Wekiva River by improving water quality in the river. Extensive water quality data showing the quality of discharges from Canoe Creek, versus ambient conditions in the river both upstream and downstream of Canoe Creek, do not support this assertion. The flow from Canoe Creek does not reduce temperatures in the river nor does it provide a thermal refuge for fish. Dissolved oxygen levels in the water flowing out of Canoe Creek are virtually the same as in the Wekiva River upstream of the creek. Chloride concentrations in the Canoe Creek discharge are 17 times higher than in the river itself. Total coliforms are higher in the Canoe Creek discharge than in the river itself. Although there is a slight reduction in nutrients as a result of the Canoe Creek flow, this slight reduction has no impact in a fast moving system such as the Wekiva River. Significantly, the flow from Canoe Creek violates State Water Quality Standards for specific conductivity (an indicator of the level of mineralization.) The probable source of this violation is the mineralized water flowing from Middlebrooks' wells. Reduction in flows from the wells would not degrade water quality in the Wekiva River and would likely eliminate the source of a specific conductance water quality violation. The 12.5 million gallons per day of groundwater which flows through Middlebrooks' wells (as distinguished from the 31.7 million gallons per year that is used for household type use) is primarily used by him to enable him to charge visitors to swim in the water. Any other uses of the water are secondary. The absolute deadline for making application to the District for continuation of existing uses and thereby to be evaluated as an existing legal user was September 11, 1985. The first application filed by Middlebrooks for an allocation of water for a use other than household type use was filed on September 13, 1988, exactly three years after the deadline for the use to be classified as and evaluated as an existing use. No exemption was sought or claimed for the water supplying the swimming area prior to the September 11, 1985, deadline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered by the District Board approving the issuance of a consumptive use permit to C.E. Middlebrooks for the amounts and under the terms and conditions established in the District's Technical Staff Report dated March 24, 1989. DONE AND RECOMMENDED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of January, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by the Petitioners. FACTS PROPOSED BY PETITIONER MIDDLEBROOKS 1-8 Adopted in paragraph 1. 9-12 The existence of a prior "springs" was not proven by a preponderance of evidence and these findings are rejected, with the exception of the date of purchase, which is adopted in paragraph 2. 13 Rejected as unnecessary. 14-18 See 9-12, above. 19-36 Rejected as unnecessary or subordinate to the facts found. 37 Adopted in paragraph 10. 38-43 Rejected as unnecessary or subordinate. 44 Adopted in paragraph 10. 45-46 Adopted in substance in paragraph 24. 47, 48 Adopted in part in paragraph 9. The extent of use was not established. Rejected, except as to the existence of the injunction, which is adopted in paragraph 20. This injunction was apparently the result of neighbors' concern over a proposed rock concert to be held at the site. Adopted in paragraph 19. 51-53 Rejected as unnecessary or subordinate. 54, 55 Rejected as unsupported by the weight of evidence. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as unsupported by the evidence. 59-63 Rejected as unnecessary or subordinate. 64-79 Rejected as contrary to the evidence. 80-81 Rejected as unnecessary or subordinate. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 85-90 Rejected as unnecessary or subordinate. Adopted in substance in paragraph 9. Rejected as contrary to the evidence (the "efficiency" of the bathing area). Adopted in part in paragraph 20, otherwise rejected as unnecessary. 94-99 Rejected as cumulative. These same facts are addressed above. 100-101 Adopted in part in paragraph 22. 102-168 Rejected as cumulative. These same facts are addressed above. 109-113 Rejected as contrary to the evidence. 114 Rejected as cumulative 115-118 Rejected as contrary to the evidence. Rejected as unnecessary and irrelevant. Rejected as contrary to the evidence. Rejected as irrelevant. FACTS PROPOSED BY PETITIONER STS Adopted in substance in paragraphs 1 and 5. Adopted in substance in paragraphs 3 and 4. Adopted in paragraphs 6 and 7. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in substance in paragraph 5. Addressed in the Preliminary Statement. Adopted in paragraph 11, conclusions of law. Adopted in paragraph 33. Adopted in substance in paragraphs 24 and 25. Adopted in paragraphs 19 and 25. Adopted in substance in paragraphs 22 and 23. Adopted in paragraph 33. Adopted in substance in paragraph 17. Adopted in substance in paragraph 15. Adopted in substance in paragraph 16. Rejected as contrary to the evidence. 19-22 Rejected as unnecessary or subordinate. COPIES FURNISHED: Robert A. Routa, Esquire P.O. Box 6506 Tallahassee, FL 32314-6506 Frank Matthews, Esquire Kathleen Blizzard, Esquire P.O. Box 6526 Tallahassee, FL 32314-6526 Wayne E. Flowers, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director P.O. Box 1429 Palatka, FL 32178-1429 =================================================================
The Issue The issue is whether Respondent Koreshan Unity Foundation, Inc., is entitled to a environmental resource permit for the construction of a wooden footbridge over the Estero River east of U.S. Route 41 and authorization to obtain by easement a right to use sovereign submerged lands.
Findings Of Fact Respondent Koreshan Unity Foundation, Inc. (Koreshan) is a not-for-profit corporation dedicated to the preservation of the Koreshan heritage. Koreshan derives its heritage from a largely self-sufficient community that occupied land in south Lee County. For several years, Koreshan has owned a parcel of 14.56 acres at the southeast corner of U.S. Route 41 and the Estero River. This parcel is bounded on the south by Corkscrew Road and contains an amphitheater and historical house, midway between the river and Corkscrew Road. The south end of this parcel contains a museum and parking area with access to Corkscrew Road. The approximate dimensions of the 14.56-acre parcel are 544 feet along the river, 496 feet along Corkscrew Road, and about 1273 feet along the west and the east property lines. The west property line is U.S. Route 41. The right-of-way for U.S. Route 41 is wider at the southern two-thirds of the parcel than the northern one-third of the parcel. A sidewalk runs on the east side of U.S. Route 41 from north of the river, across the U.S. Route 41 bridge, along the west boundary of Koreshan's property, at least to an entrance near the middle of the 14.56-acre parcel. In October 1996, Koreshan acquired 8.5 acres of land at the northeast corner of the U.S. Route 41 and the river. The purpose of the acquisition was to provide parking for persons coming to Koreshan-sponsored events, such as music performances, at the 14.56-acre site. Koreshan rents a small portion of this northerly parcel to a canoe-rental business, which operates where the bridge and river meet. To assist their visitors-some of whom are elderly and disabled--in gaining access to the 14.56-acre site, on November 26, 1996, Koreshan filed an application for a permit and authorization to construct a wooden footbridge across the Estero River about 315 feet east of the U.S. Route 41 bridge. The source of the Estero River is to the east of the U.S. Route 41 bridge and the location of the proposed bridge. After passing under the U.S. Route 41 bridge, the river runs along the Koreshan state park, which is a short distance east of U.S. Route 41, before it empties into the Gulf of Mexico at Estero Bay, which is a state aquatic preserve. The portion of the river at the site of the proposed bridge is an Outstanding Florida Waterway (OFW) and a Class III water. The river is popular with canoeists and kayakers. Persons may rent canoes and kayaks at the canoe rental business operating on the 8.5-acre parcel or the Koreshan state park. Although most canoeists and kayakers proceed downstream toward the bay, a significant number go upstream past the U.S. Route 41 bridge. Upstream of the bridge, the river narrows considerably. Tidal currents reach upstream of the U.S. Route 41 bridge. At certain tides or in strong winds, navigating a canoe or kayak in this area of the river can be moderately difficult. Even experienced canoeists or kayakers may have trouble maintaining a steady course in this part of the river. Less experienced canoeists or kayakers more often have trouble staying on course and avoiding other boats, the shore, vegetation extending from the water or shoreline, or even the relatively widely spaced supports of the U.S. Route 41 bridge pilings, which are about 30 feet apart. Mean high water is at 1.11 feet National Geodetic Vertical Datum. The deck of the proposed footbridge would be 9 feet, 6 inches wide from rail to rail and 16 feet wide in total. The proposed footbridge would extend about 180 feet, spanning 84 feet of water from shore to shore. The bridge- ends would each be about 50 feet and would each slope at a rate of 1:12. The proposed footbridge would rest on nine pilings: four in the uplands and five in the submerged bottom. The elevation of the bottom of the footbridge from the water surface, at mean high water, would be 8 feet, 8 inches. The distance between the centers of the pilings would be 14 feet, and each piling would be of a minimum diameter of 8 inches. According to a special permit condition, the pilings would be treated with chromated copper arsenate, as a preservative, but they would be wrapped in impermeable plastic or PVC sleeves so as, in the words of the proposed permit, "to reduce the leaching of deleterious substances from the pilings." The proposed permit requires that the sleeves shall be installed from at least 6 inches below the level of the substrate to at least 1 foot above the seasonal highwater line and shall be maintained over the life of the facility. The proposed permit also requires that the footbridge be limited to pedestrian traffic only, except for wheelchairs. The permit requires the applicant to install concrete-filled steel posts adjacent to the bridge to prevent vehicles from using the bridge. The proposed permit requires that Koreshan grant a conservation easement for the entire riverbank running along both shorelines of Koreshan's two parcels, except for the dock and boat ramp used by the canoe-rental business. The proposed permit also requires Koreshan to plant leather fern or other wetland species on three-foot centers along the river banks along both banks for a distance of 30 feet. The proposed permit states that the project shall comply with all applicable water quality standards, including the antidegradation permitting requirements of Rule 62-4.242, Florida Administrative Code. Respondents did not raise standing as an affirmative defense. It appears that Petitioners or, in the case of corporate Petitioners, members and officers all live in the area of the Estero River and use the river regularly. For instance, Petitioner Dorothy McNeill resides one mile south of the proposed bridge on a canal leading to the Estero River, which she uses frequently. She is the president and treasurer of Petitioner Estero Conservancy, whose mission is to preserve the Estero River in its natural state. Petitioner Ellen W. Peterson resides on Corkscrew Road, 300-400 feet from the proposed footbridge. For 26 years, she has paddled the river several times weekly, usually upstream because it is prettier. She formerly canoed, but now kayaks. The record is devoid of evidence of the water- quality criteria for the Estero River at the time of its designation as an OFW or 1995, which is the year prior to the subject application. Koreshan has not provided reasonable assurance that the proposed footbridge would not adversely affect the water quality of the Estero River. Although the site of the proposed footbridge is devoid of bottom vegetation and there is no suggestion that this is anything but a natural condition for this part of the riverbottom, there is evidence that the proposed footbridge would adversely affect the water quality in two respects: turbidity caused by the pilings and leaching from the chromated copper arsenate applied to the pilings. The turbidity is probably the greater threat to water quality because it would be a permanent factor commencing with the completion of the installation of the pilings. The leaching of the heavy metals forming the toxic preservative impregnated into the pilings is probable due to two factors: damage to the PVC liner from collisions with inexperienced boaters and high-water conditions that exceed 1 foot over mean high water and, thus, the top of the liner. Both of these factors are exacerbated by flooding, which is addressed below. Koreshan also has failed to provide reasonable assurance that the proposed footbridge is clearly in the public interest under the seven criteria. The proposed footbridge would adversely affect the public health, safety, or welfare and the property of others through exacerbated flooding. South Lee County experienced serious flooding in 1995. In response, Lee County and the South Florida Water Management District have attempted to improve the capacity of natural flowways, in part by clearing rivers of snags and other impediments to flow, including, in the case of the Imperial River, a bridge. One important experience learned from the 1995 floods was to eliminate, where possible, structures in the river, such as snags and pilings, that collect debris in floodwaters and thereby decrease the drainage capacity of the waterway when drainage capacity is most needed. Longer term, the South Florida Water Management District is considering means by which to redirect stormwater from the Imperial River drainage to the Estero River drainage. The addition of five pilings (more as the river rose) would exacerbate flooding. On this basis alone, Koreshan has failed to provide reasonable assurance. Additionally, though, the HEC II model output offered by Koreshan does not consider flooding based on out-of-banks flows, but only on the basis of roadway flows. In other words, any assurances as to flooding in the design storm are assurances only that U.S. Route 41 will not be flooded, not that the lower surrounding land will not be flooded. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect the conservation of fish and wildlife, for the reasons already stated with respect to water quality. Koreshan failed to provide reasonable assurance that the proposed activity would not adversely affect navigation or the flow of water. The flow of water is addressed above. Navigation is best addressed together with the next criterion: whether the proposed activity would adversely affect fishing or recreational values or marine productivity in the vicinity of the activity. Despite the presence of only two public launch sites, boating is popular on the Estero River. Reflective of the population growth of Collier County to the south and the area of Lee County to the north, the number of boaters on the Estero River has grown steadily over the years. The canoe- rental business located on the 8.5-acre parcel rented canoes or kayaks to over 10,000 persons in 1996. Many other persons launched their canoes or kayaks for free from this site and the nearby state park. Lee County businesses derive $800,000,000 annually from tourism with ecotourism a growing component of this industry. The Estero River is an important feature of this industry, and the aquatic preserve at the mouth of the river and the state park just downstream from the proposed footbridge provide substantial protection to the scenic and environmental values that drive recreational interest in the river. It is unnecessary to consider the aesthetic effect of a footbridge spanning one of the more attractive segments of the Estero River. The proposed footbridge and its five pilings effectively divide the river into six segments of no more than 14 feet each. This fact alone diminishes the recreational value of the river for the many canoeists and kayakers who cannot reliably navigate the U.S. Route 41 bridge pilings, which are more than twice as far apart. As to the remaining criteria, the proposed footbridge would be permanent and the condition and relative value of functions being performed by areas affected by the proposed activity is high. There is conflicting evidence as to whether the proposed footbridge would adversely affect the remnants of an historic dock, but it is unnecessary to resolve this conflict. The mitigation proposed by Koreshan does not address the deficiencies inherent in the proposed activity.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner Council of Civic Associations, Inc., and denying the application of Respondent Koreshan Unity Foundation, Inc., for an environmental resource permit and authorization to obtain an easement for the use of sovereign land. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Kathy Malone Vice President and Treasurer Council of Civic Associations, Inc. Post Office Box 919 Estero, Florida 33919-0919 Reginald McNeill Dorothy McNeill, President Estero Conservancy, Inc. 26000 Park Place Estero, Florida 33928 Mark E. Ebelini Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Phyllis Stanley, President 12713-3 McGregor Boulevard Fort Myers, Florida 33919 Cathy S. Reiman Cummings & Lockwood Post Office Box 413032 Naples, Florida 34101-3032 Francine M. Ffolkes Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
Findings Of Fact On June 27, 1979, Petitioner applied to the St. Johns River District Office of Respondent for a permit to conduct dredge and fill activities on his property on Johnson Lake near DeLeon Springs, Volusia County, Florida. On July 10, 1979, within thirty days of the filing of the permit application, Respondent requested additional information to complete the permit application, which information was received by Respondent on July 20, 1979. In his permit application, Petitioner seeks to dredge approximately 833 cubic yards of fill material from the bottom of Johnson Lake and deposit that material landward on his property in order to provide waterfront access. Johnson Lake is a small sinkhole lake, with a surface area of approximately 17 acres. The lake consists of two lobes connected by a marshy area traversable by boat. The north lobe of the lake, on which Petitioner's property is located, has a surface area of approximately 7 acres and an average depth of more than two feet throughout the year. The maximum depth of the north lobe of Johnson Lake exceeds thirty feet. Property abutting the shoreline of the north lobe is owned by more than one person. The area which Petitioner proposes to dredge is a heavily vegetated submerged point of land extending from Petitioner's uplands into the waters of the lake. Petitioner proposes to increase the slope of his lake front by relocating materials from the lake bottom landward toward his property, thereby increasing water depth in the lake adjacent to his property by approximately one foot. Petitioner's permit application contains no engineering or other detail demonstrating the manner by which turbidity associated with the project will be controlled either during or after the proposed dredge and fill activities are conducted. In addition, the application contains no data concerning the potential impact of the project on existing water quality in Johnson Lake. However, after receipt of the permit application, Respondent caused a field assessment of the project to be con- ducted. This field assessment revealed that the project site is dominated by a plant community consisting primarily of maidencane, bullrushes and rushes. Each of these species are found in the "submerged lands" vegetative index for fresh waters contained in Rule 17- 4.02(17), Florida Administrative Code. Aquatic vegetation such as that found on Petitioner's property and in the adjoining waters of Johnson Lake aids in both the assimilation of nutrients and filtering of deleterious substances from the waters of the lake and from upland runoff. These types of vegetation in Johnson Lake also provide a habitat for wildlife. Among the fish species present in Johnson Lake are darters, whose presence is indicative of good water quality. Because darters are very oxygen sensitive, it is likely that dissolved oxygen levels in Johnson Lake are in excess of five milligrams per liter. These darters were collected only in marsh areas of the lake, and not in front of areas where the shoreline of Johnson Lake has been previously disturbed by dredging. The existence of good water quality in the lake is due at least in part to the cleansing function of this marsh vegetation which would he removed if the subject permit were granted. Respondent has previously issued permits for dredge and fill activities to other property owners on the north lobe of Johnson Lake. In addition, several other instances of dredging by property owners have occurred on Johnson Lake, at least one of which resulted in Respondent's instituting an enforcement action to cause the affected area to be restored. Approximately 30 percent of the shoreline of the north lobe of Johnson Lake had been disturbed in some fashion at the time of final hearing in this cause. If Petitioner's application is granted, the percentage of shoreline disturbed would increase to approximately 50 percent. Destruction of as much as 20 percent of the littoral zone of a water body may be expected to result in measurable adverse effects on water quality. This adverse effect has been linked to destruction of the nutrient removal capacity of aquatic vegetation. Removal of aquatic vegetation can also result in setting off an algal bloom cycle in the affected water body because of increased nutrient loadings. This algal bloom cycle could, in turn, result in lowering the dissolved oxygen content of the lake, thereby adversely affecting both plant and animal communities. Petitioner has pointed out to the Hearing Officer the earlier case of McPhail v. State of Florida, Department of Environmental Regulation, DOAH Case No. 79-2174, in which a Hearing Officer from the Division of Administrative Hearings recommended the issuance of a dredge and fill permit to a neighbor of Petitioner on the north lobe of Johnson Lake. That recommendation was later adopted by Respondent by issuance of a final order. Petitioner suggests that his application is essentially similar to that of the Petitioner in McPhail, and should, therefore, be granted. However, there is no evidence of record in this proceeding, as there apparently was in McPhaiI, that establishes that no permanent adverse effects will result from the conduct of dredge and fill activities as presently proposed in Petitioner's permit application. In fact, evidence of record in this proceeding clearly establishes that removal of the quantity of aquatic vegetation in the manner proposed by Petitioner could reasonably be expected to have a measurable adverse impact on water quality in Johnson Lake. Further, it is clear that the proposed dredging activity could reasonably be expected to result in short-term turbidity of the water in Johnson Lake, and petitioner in his application has neither attempted to assess the potential impact of turbidity, nor has he proposed any safeguards to limit the effect of that turbidity. The evidence of record in this proceeding clearly establishes that the dredge and fill activity, if conducted as presently proposed, could reasonably be expected to result in lowering the dissolved oxygen content of the water in Johnson Lake, a potential overloading of nutrients in that water body, and short-term and long-term increases in turbidity. It is difficult to address the question of the extent of the potential impact of the proposed activity because nothing submitted by Petitioner either in his permit application or at final hearing in this cause directly addresses this issue in a competent fashion. It should be noted here that the record herein indicates that Petitioner might obtain the desired waterfront access which he seeks by redesigning his project to reduce its size, or, alternatively, by incorporating in his proposal a dock-type structure which would not require such extensive alterations in the littoral zone of Johnson Take. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues in this proceeding.
