Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY 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 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP or Department) should exempt Petitioner's alleged maintenance-dredging from wetland resource permitting under Florida Administrative Code Rule 62- 312.050(1)(e).1
Findings Of Fact Petitioner has applied for a maintenance-dredging exemption from wetland resource permitting for two channels in Goose Bayou on the two ends of a U-shaped upland cut canal adjacent to Goose Bayou. Rule 62-312 provides in pertinent part: No permit shall be required under this chapter for dredging or filling . . . for the projects listed below. * * * (e) The performance of maintenance dredging of existing manmade canals, channels, and intake and discharge structures, where the spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into surface waters of the state, provided no more dredging is performed than is necessary to restore the canal, channels, and intake and discharge structures to original design specifications, and provided that control devices are used at the dredge site to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. This exemption shall apply to all canals constructed before April 3, 1970, and to those canals constructed on or after April 3, 1970, pursuant to all necessary state permits. This exemption shall not apply to the removal of a natural or manmade barrier separating a canal or canal system from adjacent waters of the state. Where no previous permit has been issued by the Board of Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers for construction or maintenance dredging of the existing manmade canal or intake or discharge structure, such maintenance dredging shall be limited to a depth of no more than 5 feet below mean low water. There was no evidence of any dredging or application for dredging in the vicinity of the proposed alleged "maintenance- dredging" prior to 1971. There was evidence and a stipulation that Heritage Homes of Fort Walton, Inc. (Heritage Homes), applied to the State of Florida in or around 1971 to dredge two navigation channels in Goose Bayou for a project known as Venetian Villas and to remove two plugs separating a land-locked U-shaped canal from Goose Bayou. The navigation channels were to be 50 feet wide by five feet deep. The southern channel was to be 640 feet long, while the northern channel was to be 450 feet long. This proposal did not receive any governmental authorization. There was evidence and the parties stipulated that in 1973, based on the proposed project modifications, the State of Florida Department of Pollution Control (DPC), a predecessor of DEP, issued water quality certification, and the State of Florida Board of Trustees of the Internal Improvement Trust Fund (BOT) issued a permit for the project, as modified. It appears that the issuance of the water qualify certification and BOT permit was part of some kind of settlement reached between Heritage Homes and the State of Florida for dredge-and-fill violations. It appears that the settlement also involved the conveyance of ten acres of land to the State of Florida in lieu of payment for the spoil used in filling the marsh lands between Goose Bayou and the U-shaped canal. There was evidence and the parties stipulated that, at some point in time, the DPC certification and a BOT permit were transferred from Heritage Homes to West Florida Construction Company (West Florida). There was evidence and the parties stipulated that, as of July 13, 1973, neither Heritage Homes nor West Florida had applied to the United States Army Corps of Engineers (Corps) for a permit. There was evidence and the parties stipulated that, over time and after receiving comments from various governmental agencies, West Florida's proposed project changed to involve a yacht basin/marina, a proposed southern channel, elimination of the proposal for a northern channel, and plugging the U-shaped canal to keep it separate from Goose Bayou. The location of the single, southern channel under this proposal was different from the proposed location of the southern channel under the Heritage Homes proposal, which was to start at the southernmost arm of the U-shaped canal. Instead, under West Florida's proposal, the single, southern channel was to be located directly north of the southernmost arm of the U-shaped canal. There was evidence and the parties stipulated that, by August 21, 1974, West Florida applied to the Corps for a permit to dredge the single, southern channel (50 feet wide, 565 feet long, and four feet deep), to keep the northern canal plugged, and to construct a yacht basin/marina. There was evidence and the parties stipulated that, the United States Department of the Interior Fish and Wildlife Service (FWS) and the United States Environmental Protection Agency (EPA) recommended several changes to the project before they could recommend that the Corps issue a permit for the 1974 application; however, it does not appear that the recommended changes were ever made or that the Corps ever took any action on the 1974 application or issued any permit for the proposed project. At some point in time after 1974, the two plugs were removed, which connected the U-shaped canal to Goose Bayou. There is now a wide, shallow channel from the waterward ends of the U-shaped canal into Goose Bayou. The evidence did not prove that these channels, which Petitioner now seeks to maintenance- dredge, were ever dredged by man. Their width and shallow depth are more consistent with natural scouring from surface water runoff leaving the canal system at low and extreme low tides than with dredging. There was no evidence of soil borings, which could have verified whether the channels had been dredged by man. Even if originally dredged, there was no evidence that a dredged channel had been maintained over the years. Mr. Stoutamire testified that DEP does not consider maintenance- dredging to include the restoration or rebuilding of a channel that has not been maintained and no longer exists. This interpretation of the maintenance-dredging exemption is reasonable. Mr. Stoutamire also testified that DEP interprets the last sentence of Rule 62-312.050(1)(e), limiting maintenance- dredging to no more than five feet below mean low water where no previous permit has been issued, to refer to canals constructed before April 3, 1970, since maintenance-dredging of canals constructed after that date would not be exempt if not previously permitted. This interpretation is reasonable.2 Petitioner's application did not state that control devices would be used to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during dredging.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner a maintenance-dredging exemption under Rule 62- 312.050(1)(e). DONE AND ENTERED this 16th day of September, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2009.
Findings Of Fact Charlotte Highlands is an approximately 97-acre mobile home subdivision in Charlotte County, Florida. The roads in the subdivision are unpaved. The stormwater sheet flow in the area is from west to east. To the east of Charlotte Highlands is a 21-acre hardwood swamp, the wetlands in question in this proceeding. Stormwater from the 97-acre subdivision west of the wetlands and from the 250 acres west of the subdivision flows to the east into the wetlands. Water flows out of the wetlands to the east, from the 21-acre wetlands through a stream into Myrtle Slough. Myrtle Slough is part of the waters of the State. The County wishes to create a stormwater drainage system for Charlotte Highlands. Under the County's plan, stormwater from the 97-acre subdivision would be discharged into the wetlands owned by Desrosiers Brothers. Although the County and the Department view this project as involving only the discharge of stormwater from the 97-acre subdivision into the wetlands, the stormwater discharged would include the stormwater flowing into the 97-acre subdivision from the 250 acres located directly west of the subdivision. The County met with individuals from the Southwest Florida Water Management District, and that agency questioned the method of calculations used by the County in determining the amount of runoff into the proposed drainage system. Although new calculations of stormwater runoff volume were performed by the County, those new calculations were not provided to the Department in the County's permit application. The wetlands in question contain cypress, maples, laurel oak, bay trees, percia, dahoon holly, buttonbush, ferns, palmetto, and wet pine. Some of these species, especially the maples, cannot withstand much flooding. The outflow from the wetland into Myrtle Slough is via a natural stream. Although there are some indications that some excavation may have taken place in the stream, such as the spoil located near the cattle watering pond near the mouth of the wetlands, water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections. The hydroperiod is the length of time water stays in a wetlands before it drains out of the wetlands. This determines the water level, the critical factor affecting a wetland's ability to perform its vital functions. If the rate or volume of either the inflow or outflow of a wetlands is altered enough, the water level changes, usually with adverse environmental consequences. Certain species of flora will die off if the water level rises too much. Others require high water levels for their survival. In order to assess the effects of a proposed alteration to such a system, one must determine the existing high pool and low pool. Donald H. Ross established the high and low pools for the County. He went to the wetlands and observed the stain, rack, and lichen lines on tree trunks. He also observed the cypress buttress. Ross also determined the invert of the stream, the elevation at which water first starts to run in it. Based solely on this site visit, the County determined the high pool in the wetlands to be at 14.8 NGVD and the low pool to be at 14.1 NGVD. No rainfall data was collected and analyzed; no hydrological studies were performed; no observations were made over a period of time. There are two aspects of this project which can alter the hydroperiod of the wetlands. The first involves the amount of water entering the wetlands, and the second involves the amount of water leaving the wetlands. Currently, runoff from the 97-acre subdivision as well as the 250-acre area west of the subdivision drains toward the wetlands. The County intends to pave the roads in the subdivision and construct a system of swales. Although the paving will increase the impervious surface by an insignificant amount, the runoff will be delivered to the wetlands faster. Accordingly, peaks in water level will occur more suddenly with increased water arriving more quickly. Stormwatr is discharged into wetlands to take advantage of the pollutant-filtering functions of wetlands vegetation. To realize this function, the water must be held in the wetlands for a certain amount of time. The County intends to accomplish this by the installation of a control structure, known as a weir, which will regulate the amount of water leaving the wetlands. The County proposes to construct a weir on the stream between the wetlands and Myrtle Slough approximately 100 feet from the mouth of the wetlands. The top of the weir for this system will be set at 14.8 NGVD, the high pool established by Ross for the County. The weir will also have an orifice set at 14.1 NGVD, the low pool established by Ross and the County, which will allow a constant flow of water out of the wetlands at that elevation. The control structure will cause water to remain in the wetlands for a longer period of time, which will raise the water level in the wetlands by some amount. In order to accurately predict this amount, it is necessary to determine the storage capacity of the wetlands. The County calculated that a storage capacity of 177,761 cubic feet would be required for the wetlands to contain the first one-half inch of rainfall from the 97-acre subdivision. No calculations have been made as to the storage capacity required for the wetlands to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands. The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of the wetlands, the impact of its project on the wetlands cannot be determined. As an alternative to this project the County considered rerouting the stormwater away from the wetlands. Diverting necessary water from the wetlands would result in the desiccation of the wetlands. However, an increased water flow if not properly discharged would likely result in an over impoundment of the wetlands. Either approach would have an adverse impact on a productive wetland system, such as the wetlands involved here, and a change in the vegetation would adversely impact the wetland's ability to treat the discharge. The treatment of stormwater in wetlands is a relatively new technique. Although some projects have been approved in other parts of the State, projects such as that proposed by the County have not been used yet in southwest Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Charlotte County's application for a wetlands stormwater discharge facility permit. DONE and RECOMMENDED this 8th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0243 Although Charlotte County filed a document called Proposed Findings of Fact and Conclusions on the Evidence, rather than setting forth any findings of fact the County simply makes what it calls a Comparison of Evidence on Issue 1 and a Comparison of Evidence on Issue 2, listing under each heading excerpts from the testimony of each of the witnesses in this proceeding. Accordingly, no rulings are made herein on Charlotte County's proposed findings of fact since it is determined that there are none. Desrosiers Brothers' proposed findings of fact numbered 1-9, 15, 17, 24, 26, 27, and 38 have been adopted either verbatim or in substance in this Recommended Order. Desrosiers Brothers' proposed findings of fact numbered 10-12, 19-21, 23, 25, 29-37, 40, and 41 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. Desrosiers Brothers' proposed findings of fact numbered 13, 14, 16, 18, 22, 28, and 39 have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 1, 2, 14 in part, 15, 16 in part, 17 in part, 18-22, 27, and 28 in part have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 5 and 6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. The Department's proposed findings of fact numbered 16 in part, and 17 in part have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 3, 4, and 7-13 have been rejected as being contrary to the weight of the evidence in this cause. The Department's proposed findings of fact numbered 14 in part, 23-26, and 28 in part have been rejected as not being supported by the evidence in this cause. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Philip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950 Matthew G. Minter, Esquire 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue in this case is whether the DER should exempt the stormwater discharge anticipated from the initial phase of a residential development proposed by Sam Rodgers from the licensing requirements laid down by Rule 17- 4.248, Florida Administrative Code.
Findings Of Fact Sam Rodgers (applicant) proposes to alter an existing stormwater conveyance system in connection with transforming part of an orange grove in Polk County into a residential development, Foxwood Lake Estates. If all goes according to plan, the development will eventually occupy all or parts of four distinct basins. The applicant's agents furnished DER data pertaining to all four basins. The only discharge at issue in these proceedings, however, is the stormwater expected to drain from Basin III. See DER Exhibit No. 1, Master Plan-Key Map. Phase I of the development, a trailer park, would lie completely within the 123-acre expanse of Basin III, but would not completely displace the citrus trees. According to the applicant, roofs, streets, parking lots and other impervious surfaces will comprise some two-fifths of the area, when developed. DER Exhibit No. 1. Construction activity increases suspended solids in stormwater draining from construction sites. Lesser but still elevated levels of suspended solids can be expected when people take up residence. Heavy metals from automobile exhaust will end up in stormwater draining from Basin III, if some of the people moving in bring cars. Residential development also increases the biochemical oxygen demand of stormwater washing over it. The applicant proposes sodded roadside swales of varying slope to collect stormwater and, together with occasional pipes under roads, to convey it to an existing pond (Foxwood Lake), which is to be enlarged to an area of 4.82 acres. Foxwood Lake would be 12 feet deep in places. Testimony that the swales and pond would fill with silt in two or three years has not been credited, although it may not take centuries, as another expert testified. The swales will require maintenance and the applicant plans to hire somebody for that purpose. The applicant also contemplates dedicating some road rights-of-way, including swales, to Polk County. Lake Foxwood's present surface elevation of 160.58 feet above mean sea level would remain virtually unchanged, during times of moderate rainfall, at 161 feet above mean sea level. Neither groundwater tables nor the soil's storage capacity would be perceptibly altered, even during periods when the lake was temporarily elevated by the control structure planned for it. The applicant has agreed to a design that would detain on his property a volume of water equal to one inch of rainfall over the whole of Basin III for five to seven days. At the western end of Foxwood Lake, a PVC overflow pipe with a diameter of six inches would be installed in a concrete outfall structure at an elevation of 161 feet above mean sea level. At 164.55 feet above mean sea level, a vertical V-notch in the weir would allow water to spill out of Foxwood Lake, if stormwater should raise the lake's surface to that elevation. Both the overflow pipe and the V-notch would empty through a pipe 36 inches across into an intermittent tributary to Blackwater Creek, which the parties stipulated to be Class III waters. The stream into which water leaving Foxwood Lake would flow meanders west to Martin Lake, about a mile away. James M. Pollock, Jr., owns property on the western edge of Martin Lake and farms land on the lake's edge. Mr. Forrest Sawyer of 1712 Gibsonia-Galloway Road owns land to the north of Mr. Rodgers' property. Mr. Sawyer's property is generally higher ground than the Rodgers property, although three or four acres of the Sawyer property lie in a low area into which drain water from the Rodgers property as well as water from elsewhere on the Sawyer property. No water drains onto the Sawyer property from Basin III, however. Charles C. Krug, his sister, and his brother together own 40 acres abutting the west side of the northwest 40 acres of the Rodgers property. A dike along the southern boundary of the Krug property prevents water entering from the south. No water has drained onto the Krug property from the Rodgers property in the last 45 years. Dorothy Thompson lives 300 or 400 feet east of Orange Avenue which is the eastern boundary of the Rodgers property. There is a small area east of Orange Avenue in Basin III which drains west through three culverts onto the Rodgers property. The Thompson home property evidently drains to the east; however, only since the widening of U.S. Highway 98, which runs north and south to the east of Mrs. Thompson's property have heavy rains resulted in flooding on her property. The applicant gave DER notice of the changes in stormwater discharge proposed for Basin III. Water discharged from the system the applicant proposes would meet the criteria for Class III waters, according to the uncontroverted evidence. Virtually all pollutants except colloidal solids should precipitate or be filtered out by the time water leaves Foxwood Lake for waters of the state. Respondent's witness' suggestion that the swales be paved to decrease the siltation overlooks the filtration and percolation grassy swales make possible. At one time DER required that developers design stormwater systems to detain, instead of a one-inch storm, the mean annual storm, for five to seven days. The applicant's system is designed to avoid any increase in the present rate of discharge under weather conditions up to and including a 100 year 24-hour storm.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Sam Rodgers' application for exemption from stormwater discharge licensure for Phase I of the proposed Foxwood Lake Estates. DONE AND ENTERED this 8th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980 COPIES FURNISHED: Andrew Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David Levin, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether petitioner has standing to challenge a consent order negotiated by respondents to resolve an enforcement proceeding? If so, whether the consent order comports with statutes and rules regulating dredging and filling in wetlands?
Findings Of Fact Without securing DER permits, TLC built two dirt roads, one perpendicular to the other, both in Gulf County, east and south of property petitioner John L. Sullivan, Jr. owns and lives on. Between them, the roads, each 20 to 25 feet wide, traversed wetlands (recognized as such by DER regulations and the DER environmental specialist when he visited the site in May of 1990) in three separate places. None of the affected wetlands drain in the direction of petitioner's property. TLC dredged and placed 36-inch culverts before filling at two of the sites, and placed fill at all three sites, constructing roadbed and shoulders. One of the sites, connected by a 200-foot ditch to other wetlands, DER's Larry Taylor eventually characterized as "isolated." He directed TLC to fill the ditch to destroy the connection, on the theory this would divest DER of jurisdiction. At hearing, John L. Sullivan, Jr. testified that the project had not affected him financially, and said he was affected only as a citizen of Florida. The wetlands crossed by the roads drain (or, in one instance, did drain before the ditch was filled) easterly to Stonemill Creek, which flows southeasterly toward the Dead Lakes.
Recommendation It is, accordingly, recommended that DER dismiss the letter or petition with which these formal administrative proceedings began. RECOMMENDED this 10th day of June, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0282 Petitioner's proposed finding of fact No. 1 has been adopted in substance. Petitioner's proposed findings of fact Nos. 2 and 3 pertain to immaterial matters. Petitioner's proposed finding of fact No. 4 was not proven. Respondent's proposed findings of fact Nos. 1, 2, 5, 6 and 10 (i.e. the final proposed finding of fact) have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, a parcel 96 feet by 60 feet was involved at only one of the three sites. With respect to respondent's proposed finding of fact No. 4, the conclusion that "the jurisdictional aspect ceased to exist" is not adopted. With respect to respondent's proposed finding of fact No. 7, whether the violation was "resolved" is a conclusion of law. With respect to respondent's proposed finding of fact No. 8, the allegations of the petition were not proven. With respect to respondent's proposed finding of fact No. 9, not all uncontradicted evidence has been credited. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Sullivan, Jr. Post Office Box 1298 Wewahitchka, FL 32465 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bill R. Hutto, Esquire Hutto, Nabors, Bodiford and Warren 101 East 23rd Street Panama City, FL 32405
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
