The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2002.
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is to whether to approve the application of Respondent, Lake County Water Authority (Authority), for an Environmental Resource Permit (ERP) and consent to use sovereign submerged lands authorizing a restoration project in Lake Beauclair (Lake).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding The Authority, an independent special taxing district, was created by the Legislature in 1953 by special act as the Ocklawaha Basin Recreation and Water Conservation and Control Authority. See Ch. 29222, Laws of Fla. (1953). In 2000, it was renamed the Lake County Water Authority. Ch. 2000-492, § 2, at 745, Laws of Fla. Among its duties is to make "improvements to the streams, lakes, and canals in [Lake] [C]ounty." Id. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes (2009),1 to issue ERPs, as well as to act as the staff for the Board to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Florida Administrative Code Rule Chapter 18-21.2 The Lake is an approximate 1,118-acre water body located south and west of U.S. Highway 441, east of State Road 19, and north of County Road 448. It is a part of the Harris Chain of Lakes and is the first lake downstream (north) of Lake Apopka, connected by the Apopka-Beauclair Canal. The Lake discharges to Lake Dora by a connection at the northeast corner of the Lake, which connects with Lake Eustis via the Dora Canal. Lake Eustis then connects with Lake Griffin by Haines Creek. See County Exhibit 3; Petitioner's Exhibit 3. The waters from the Harris Chain of Lakes eventually discharge into the Ocklawaha River and then into the St. Johns River. Beginning around World War II, intense agricultural activity, more commonly known as muck farms, took place around the shores of Lake Apopka, which resulted in significant amounts of pesticides, nutrients, and sediment being deposited in that water body. Because the Lake was at the downstream end of the Apopka-Beauclair Canal, it also received significant amounts of these contaminants. This led to a degradation of the aquatic plant community and the balance of fish and wildlife species that use the Lake. It is now characterized as a "eutrophic water body." Since the mid-1980s, steps have been taken to restore the water quality in Lake Apopka. As a part of the restoration of Lake Apopka, the District acquired ownership of former muck farms located just northwest of Lake Apopka in an area known as the Lake Apopka North Shore Restoration Project, West Marsh. The Marsh in turn is divided into a number of field units, also known as cells. In cooperation with the District and the FFWCC, over the last eight years the Authority has developed a plan to improve water quality and habitat in the Lake and four residential canals along the Apopka-Beauclair Canal. In general, the plan entails removing by hydraulic dredge sediments from an estimated 260 acres in the western portion of the Lake and from an additional 21 acres of combined residential canal segments. At least some of the dredging site is in state-owned sovereign submerged lands and requires the consent of the Board. The dredged sediment will be transported by pipeline 8.3 miles south of the Lake to Cells F and G of the West Marsh. Water from the sediment will be routed a short distance north to the Authority's Nutrient Reduction Facility (NuRF), treated to remove phosphorus and other contaminants, and then discharged downstream through the Apopka-Beauclair Canal. Due to permit conditions relating to dissolved oxygen levels, dredging activities can only take place between September 15 through June 15 of any year. Therefore, resolution of this dispute has been made on an expedited basis. On September 22, 2009, the Authority filed an application with the Department to implement its plan. See Authority Exhibit 10. Two requests for additional information were made by the Department, and responses were filed by the Authority. See Authority Exhibits 11 and 12. On June 18, 2010, the Department, through its Orlando District Office, issued its Notice of Intent to issue an ERP and consent to use sovereignty submerged lands. See Department Exhibit 10. The ERP contains a number of specific and general conditions applicable to this project, all designed to ensure that the relevant permit requirements are satisfied. On June 25, 2010, Petitioner, a former member of the Authority and a long-time advocate of restoring the Harris Chain of Lakes, filed a Petition challenging the proposed agency action on numerous grounds. Her primary objection is that the sediment will be deposited at West Marsh on top of already- contaminated soils containing pesticides from prior farming activities, which may cause "environmental harm" to humans, fish, and aquatic wildlife. She also contends that no state permit should be issued until the United States Army Corps of Engineers issues a permit for the project; that diesel fumes from the dredging equipment used on the project may pollute the air and water; that the project may violate federal, state, and local rules; and that sediment from the dredging activities in the Lake may drift downstream resulting in environmental harm to Lake Griffin, where she resides. No specific objection was raised regarding the consent to use sovereign submerged lands for dredging purposes. For the last 26 years, Petitioner has resided on Lake Griffin, which lies within the Harris Chain of Lakes. Uncontroverted evidence establishes that her property is at least 21 miles downstream from the site of the dredging activities and around 27 miles from the deposition site. The path of the restoration site to Petitioner's property involves travel north through the Lake, then across Lake Dora to Lake Eustis, northwesterly through Haines Creek, and across Lake Griffin to the southwestern area of the lake where she resides. The path from the disposal site to her property requires further travel from Cells F and G within the West Marsh, down the Apopka-Beauclair Canal to the restoration site on the Lake, and then along the described path across Lakes Beauclair and Dora, Dora Canal, Lake Eustis, Haines Creek, and Lake Griffin. According to expert testimony at hearing, the likelihood of sediment transfer from the dredging site to Lake Griffin is "scientifically inconceivable." It can be inferred that the likelihood of the treated, discharged water from the disposal site at West Marsh reaching her property is even more remote. This was not credibly contradicted. The Project The project involves the removal of 1.32 million cubic yards of human-induced sediment from an approximate 255-acre area in the southwestern part of the Lake and approximately 30,700 cubic yards from a 6.3-acre area within portions of four adjacent residential canals. Floating turbidity barriers and other measures around the dredge site in the Lake and canals will ensure that other areas of the lake system will not be impacted. The dredged material will be pumped through 8.3 miles of high density polyethylene pipe along the Apopka-Beauclair Canal to a disposal site known as Cells F and G, which are located on the west side of that Canal on property owned and operated by the District. Together, the two cells comprise around 980 acres. The sediment will be treated with polymers (a chemical process) to aid in the settling of organic solids. The supernatant water (i.e., the water overlying the deposited sediment) will then be pumped to the nearby NuRF, owned and operated by the Authority, treated with alum to remove nutrients and phosphorus, and discharged from the NuRF into the Apopka- Beauclair Canal, which ultimately discharges into the Lake. A number of problems currently exist in the Lake, including loose sediments, high nutrient concentrations, and navigational impairments. The project is designed to improve water quality by removing accumulated sediments at the mouth of the Lake that are re-suspended by wind and wave action and the propellers of motorboats, and which allow nutrients to enter the water. Also, the project is designed to improve habitat by allowing a more desirable substrate for aquatic plants to become established, and to improve navigation by removing accumulated sediment that currently impedes navigation. Therefore, the project will clearly restore that portion of the Lake to something much closer to its pre-disturbance bed conditions in a manner likely to benefit fish and wildlife, improve navigability, and eliminate re-suspension of materials from boating activities. The Authority conducted a battery of chemical and physical testing to determine whether the sediments were useful as soil amendments for agriculture or for use in wetland restoration at the inactive muck farms north of Lake Apopka. Arsenic in the sediments was present at a mean concentration within the range of natural histosols (organic wetland soils) in the State, but not at levels suitable for transfer to residential or commercial properties. All metals were within allowable concentration levels established by the United States Environmental Protection Agency for land application of biosolids at farms. Organochlorine pesticides were present at low levels. Residual pesticide concentrations, and all other metal concentrations in the sediments, would be suitable for residential, commercial, and farming properties. Based on these characteristics and analyses, Cells F and G within the West Marsh were selected as the best practicable and safe alternative for the beneficial use of the sediments. The sediments will be used to cap much higher pesticide-contaminated soils in those Cells. This will create more shallow water depths in the Cells, facilitate greater cover of the former muck farms by wetland vegetation, and partially restore historic wetland conditions that existed prior to farming and soil subsidence. The FFWCC concedes the possibility of impacts to fish and wildlife as a result of depositing spoil material into Cells F and G. While there is some potential for fish mortality in those Cells, the FFWCC believes the overall, long-term benefit to fish and wildlife in both the Lake and Cells F and G far outweigh any temporary, negative impacts that may result from the project. Further, the evidence establishes that Cells F and G currently have sediment with appreciable levels of pesticides, as well as fish that contain sufficient levels of pesticides to be hazardous to fish-eating birds. Therefore, the contaminated fish are not an environmental asset. Because of this, the District maintains deep water and thick vegetation in those Cells to discourage foraging by fish-eating birds. The deposition of the sediment will cover the existing contaminated soils with sediments having a much lower concentration of pesticides thus reducing the exposure to fish and wildlife. The evidence supports a finding that the deposition of the dredge sediments will increase the surface soil elevation in Cells F and G, which will aid the District in future restoration of emergent marsh communities on this site. Petitioner's contention that the possibility of harm to even a single contaminated fish outweighs the benefits of using that site as a depository has been rejected. Petitioner also suggested that the sediment should be transported by truck to another location, such as a hazardous waste site, or that the project should be postponed for another year until testing is completed by a prospective vendor (Clean to Green) who claims its proposed methodology (yet to be tested and scientifically validated) can treat the sediment off-site in a safer manner. Given the overwhelming and uncontroverted scientific evidence offered at hearing in support of the project and the manner in which it will be undertaken, these alternatives are not deemed to be practical, reasonable, or supported by scientific evidence. The proposed deposition site is clearly the best and safest alternative. Rule Requirements Rules 40C-4.301 and 40C-4.302 prescribe the conditions for issuance of an ERP. Generally, the first rule focuses on water quantity, environmental impacts, and water quality. The second rule generally requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Further standards implementing the rules are found in the District's Basis of Review. The evidence supports a finding that the Authority has given reasonable assurance that the project will not cause adverse water quantity impacts, adverse flooding to on-site or off-site property, adverse impacts to existing surface water storage and conveyance capabilities, or adverse impacts on the maintenance of surface or ground water levels or surface water flows. The evidence supports a finding that the Authority has given reasonable assurance that the project will not adversely affect the quality of receiving waters or violate water quality standards. Reasonable assurance has also been given 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. The project will have no adverse secondary impacts. The project will not adversely affect works of the District and special basin or geographic area criteria. The Authority has given reasonable assurance that the project is capable of being performed and functioning as proposed. Further, the Authority has sufficient financial, legal, and administrative capabilities to ensure that the project will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the project will not be contrary to the public interest, as defined in Rule 40C- 4.302 and Section 373.414(1)(a), Florida Statutes. All other contentions regarding the issuance of the ERP have been carefully considered and found to be without merit. Therefore, it is found that the requirements of the two rules have been met. No dispute was raised regarding the consent to use sovereign submerged lands to conduct the dredging activities. Chapter 18-21 requires that the activity must not be contrary to the public interest. As to this issue, the evidence supports a finding in favor of the Authority.
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 of the Authority for an ERP and consent to use sovereign submerged lands. DONE AND ENTERED this 23rd day of August, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2010.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact The Petitioner, Bocilla Waterways, Inc., is a corporate entity formed for the purpose of pursuing the subject project and installing the proposed channel. Randall Craig Noden, secretary- treasurer of that corporation, and a director of it, is a realtor who sells and develops property on Don Pedro Island, in the vicinity of the proposed project. He and other officers and directors of the Petitioner corporation have an interest in property on some, but not all, upland areas adjacent to Bocilla Lagoon, Old Bocilla Pass and Kettle Harbor, the water bodies germane to this proceeding. The Respondent, State of Florida, Department of Environmental Regulation, is a state agency charged with regulating dredge and fill projects in state waters and navigable waters pursuant to Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code. The Intervenor, Environmental Confederation of Southwest Florida (ECOSWF), is an incorporated, not-for-profit organization whose membership includes numerous environmentally concerned public interest organizations or associations located throughout southwest Florida. Members of the Intervenor use Old Bocilla Pass, Kettle Harbor, Bocilla Lagoon and Lemon Bay, an adjacent contiguous water body, for boating, swimming, fishing (both recreational and commercial), and collecting shellfish. Some of the membership of the Intervenor live in the immediate area of the proposed project. Project Description The Petitioner submitted a dredge and fill permit application to the Respondent, DER, proposing excavation of an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide, 450 feet long and dredged to a depth of -5.0 feet mean low water, with 2:1 side slopes grading to 3:1 at approximately +0.5 feet NGVD. The channel below mean high water would be 70 feet wide' and 670 feet long to a depth of -5.0 feet mean low water, with 2:1 side slopes. A rip-rap strip five feet wide would be placed in the littoral zone on either side of the channel. As originally proposed, the channel excavation would be performed by dragline and clamshell with spoil placed upon uplands for disposal. The excavation would progress from the west side of the project to the east, with plugs remaining at the eastern terminus of the channel until it stabilizes and the rip- rap is placed along the excavated channel. A turbidity curtain is proposed to be used to maintain water quality above state standards regarding turbidity. The applicant originally proposed to transplant seagrasses, displaced in the excavation process, back into the bottom of the excavated channel. Earthen slopes above mean high water would be vegetated in order to achieve stabilization. Some of these proposals were modified after negotiations with DER staff, such that the seagrass transplanting portion of the project would be accomplished in surrounding areas of the water bottom of Bocilla Lagoon and Kettle Harbor, specifically, bare areas and otherwise degrassed, vegetated flats. The applicant also proposes to install navigation aides in Bocilla Lagoon and Kettle Harbor in order to help maintain boat traffic in the channel, and to facilitate ingress and egress through the proposed channel. Don Pedro Island is a barrier island lying off the coast of Charlotte County, Florida. The only access to the island is by boat or helicopter. Bocilla proposes to excavate the proposed channel in order to, in part, provide better navigational access to Bocilla Lagoon which lies within Don Pedro Island. There is presently a navigational channel in the Bocilla Lagoon through what is called "Old Bocilla Pass," located at the north end of Bocilla Lagoon and communicating with Lemon Bay. Bocilla contends that the channel is somewhat tortuous and subject to shoaling, with concomitant grassbed damage by boat propellers, and that thus, a better navigational access in the form of a shorter, deeper, more direct channel from the southern end of Bocilla Lagoon to Kettle Harbor is required. The project would involve the removal of approximately .18 acres of mangroves (red and black mangroves) and .187 acres of seagrasses. Bocilla has proposed to mitigate the damage involved in the mangrove and seagrass removal by replanting mangroves, on three foot centers, along both sides of the proposed channel, and replanting or transplanting seagrasses in bare areas of Kettle Harbor, near the proposed project. Description of Pertinent State Waters Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass are designated as Class II, navigable waters of the state and are designated for shellfish propagation or harvesting. Shellfish, including clams and oysters, occur in Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass. As demonstrated by Intervenor's witnesses Wade, Cole and Wysocki, shellfish are harvestable and harvested in Bocilla Lagoon and Kettle Harbor at the present time. Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass have also been conditionally approved by DNR for shellfish harvesting. DNR approves or prohibits waters for shellfish harvesting, and as a matter of policy generally prohibits shellfish harvesting in manmade "dead-end" canals. A "conditionally approved" water body, such as those involved herein, is an area approved for shellfish harvesting, but one which is more likely to be affected by pollution events. Thus, they are monitored more closely by DNR. Such events as additional residential development in an area, resulting in more septic tank sewage discharge, on-board toilet discharges from boats or the installation of a water and sewer treatment plant, can result in DNR temporarily or permanently closing a conditionally approved area to shellfish harvesting. Natural phenomenon such as the influx of red tide is also a factor which is considered by DNR in electing to classify a shellfish harvesting area as conditionally approved, and in electing to prohibit shellfish harvesting in an area. It was established through testimony of witnesses Feinstein and Setchfield of DER that long-standing DER policy provides that when DNR conditionally approves waters as being shellfish harvestable, that means they are "approved" for all shellfish harvesting purposes, but simply subjected to closer monitoring and with an increased likelihood of closure due to immediate pollution events. Therefore, the prohibition in Rule 17- 4.28(8)(a), Florida Administrative Code, prohibits issuance of dredge and fill permits in areas approved for shellfish harvesting or "conditionally" approved, since there is no difference in the "shellfish harvestable" nature of the waters until a closure occurs, which may simply occur sooner in conditionally approved waters. Bocilla Lagoon and Kettle Harbor are both naturally- formed water bodies, although some dredging has been allowed to occur in them in the past. They are not manmade, "dead-end" canals. Neither water body has the physical or biological characteristics of a "typical dead-end canal". Both are quite high quality habitats for the natural flora and fauna occurring in the marine environment in that area, and thus the general policy of DNR established by witnesses Cantrell, Fry, Feinstein and Sperling which prohibits shellfish harvesting in manmade, dead-end canals, does not apply to Bocilla Lagoon and Kettle Harbor. The water quality in both bodies of water is good and within DER standards generally. At times however, the water quality in Kettle Harbor suffers from a failure to meet DER dissolved oxygen standards contained in Chapter 17-3, Florida Administrative Code. Indeed, the water quality in Bocilla Lagoon is generally somewhat better than the water quality in Kettle Harbor. Environmental Impacts The project as currently proposed would result in the removal of approximately .18 acres of mangroves and .18 acres of seagrasses. Seagrasses and mangroves are important in providing areas of cover, food, and habitat for various estuarine species. Seagrasses serve to stabilize marine soils resulting in a decrease of suspended solids in contiguous waters with resulting decrease in turbidity in those waters. The loss of seagrasses can result in de- stabilization of the bottom sediment, such that suspended solids or turbidity increases in involved waters, which can result in decreased light penetration to the vegetated bottoms. Decreased light penetration, if of a sufficient degree, can result in the further loss of seagrasses and other bottom flora, causing in turn, increased turbidity and further decreased light penetration, with progressively destructive results to seagrass beds and other marine flora and fauna, with a substantial detrimental effect on the marine biological community in general. Mangroves serve as biological filters, trapping sediments, heavy metals, nutrients and other pollutants, uptaking them through their roots and converting them to usable plant food and thus filtering such harmful elements from state waters and rendering them into environmentally harmless substances. The removal of the mangroves at the proposed channel site will result in a loss of their beneficial effects. These beneficial effects will be absent for a greater period of time than it takes to merely plant replacement mangrove plants, since mature trees will be removed and mangrove seedlings will be replanted in their stead. Maturation of mangroves at this location would take in excess of three years, thus replacement of the beneficial filtering effects of the removed mangroves will take in excess of three years, to which time must be added the time which lapses between the original mangrove removal and the replanting of the seedlings, which would start the maturation period. Bocilla proposes to mitigate the removal of the mangroves by that replanting, as well as to transplant seagrasses removed from the channel site to other nearby areas currently bare of seagrass. Seagrass replanting is not a well-established practice. Compared to mangrove replanting, there is less experience, less information and a lower success ratio historically. Of the hundreds of dredge and fill projects occurring and approved throughout Florida, only three have involved replanting of removed seagrasses. Two of the projects involved the Port of Miami in Dade County and the "New Pass site" in Sarasota County. In both of these cases, seagrass replanting cannot be termed successful. The Port of Miami project resulted in a final survival rate of only twelve per cent of ,the grasses replanted. The New Pass project thus far has resulted in a survival rate of only 39 per cent of the seagrasses replanted, after only nine months. The Petitioner proposes that the replanting be accomplished by Mangrove Systems, Inc. That firm is headed by Robin Lewis, who oversaw the seagrass replanting project at the New Pass area in Sarasota. The location and method of replanting seagrasses at New Pass, as to water depth, type of bottom, type of grass and planting method, was generally similar to that proposed for the Bocilla project. That is, it would be accomplished by "plug planting," of "bald" spots at generally the same latitude and similar water depth. The survival rate at the end of six months at the New Pass project was 73 per cent. The survival rate at the end of nine months was 39 per cent. Mangrove Systems, Inc. and Mr. Lewis acknowledges that it is difficult to attribute the decrease in survival rates and grass shoot densities to any one cause, but that predation and a shift in sediments due to the vagaries of water currents, were probably the chief causes for the decrease in seagrass survival. Mangrove Systems, Inc. and the Petitioner propose a guarantee whereby Mangrove Systems, Inc. would replant more seagrasses, if needed, if a low survival rate occurs, which it defines to mean less than a 70 to 80 per cent survival rate after one or two years. There is no guarantee concerning the survival rate after a second planting, however. It was not established when the survival rate will be measured, in determining whether a 70 to 80 per cent survival is being achieved. In this connection, the central Florida coast where the Bocilla project is proposed, is not as conducive to seagrass growth as other more tropical marine areas, such as in the Florida Keys. In the area of the proposed project, seagrasses do not generally produce a great deal of seed and tend not to grow back very readily, once they are destroyed. Seagrasses in the Florida Keys tend to have, in comparison, much greater seed production and for this and other reasons, tend to reproduce themselves more readily once destroyed. They tend to be more amenable to transplanting in the Florida Keys marine environment. Mangrove Systems, Inc. has conducted a seagrass replanting project in the Florida Keys, however. One-third of the seagrasses planted in that project have not survived after two years. In short, the likelihood of seagrass survival has been insufficiently tested in the geographical area and latitude and in similar soils, water depths and temperatures as those involved in the instant case, such that reasonable assurance of adequate seagrass survival with the replanting project proposed will occur. Hydrographics and Maintenance Dredging The evidence is uncontradicted that the opening of the proposed channel would increase circulation in the southern end of Bocilla Lagoon. Increased circulation tends to have good effects in that it reduces stratification in water bodies. Stratification is a condition which occurs when the deeper waters of a given water body do not interchange with surface waters, but rather stratify or become characterized by layers of differing levels of dissolved oxygen, temperature, pH, etc. Typically, lower levels of a stratified body of water are characterized by low levels of dissolved oxygen. The present water quality of Bocilla Lagoon however, is not characterized by statification in any significant degree. It is very similar in water quality, in terms of dissolved oxygen, temperature, pH and other Chapter 17-3 water criteria, to that water quality of the nearby intra-coastal waterway into which the channel into and through Kettle Harbor would open. The intra-coastal waterway is agreed to be a well- circulated body of water, meeting all current State water quality standards. Accordingly, the opening of the channel and the increased circulation it may cause in the southern end of Bocilla Lagoon would have minimal, positive benefits. The change in circulation and in water current patterns and velocities caused by the opening of the direct, shorter channel from lower Bocilla Lagoon and Kettle Harbor may, negatively affect the present seagrass growth in seagrass beds in Kettle Harbor and Bocilla Lagoon in the vicinity of each end of the proposed channel, due in part to increased current velocities that would result from tidal exchange through the shorter, straight channel which would be opened. The expert witnesses in the area of hydrographics disagreed on the effect of the proposed channel on water circulation in the northern end of Bocilla Lagoon and Old Bocilla Pass, which is the north channel opening into northern Bocilla Lagoon. Witness Sperling for the Department opined that a major reduction in flows through Old Bocilla Pass channel would occur. Witness Tackney for the Petitioner acknowledged there would be some reduction in flow, and witness Olsen opined that a reduction in flow would occur, but there could also be an increase in circulation. Both witnesses Tackney and Olsen, in opining that a flow-through, enhanced circulation and flushing system may result from installing the channel, based that opinion to a significant degree, on their belief on the effects of wind on forcing water through the Pass and Bocilla Lagoon. No wind data or records were adduced however, to show the likely effects of wind on creating the Petitioner's desired "flow-through" system. Witness Sperling disagreed as to the significance of this flow-through effect, but there was no disagreement among the hydrographic experts that reduced flows through Old Bocilla Pass, which all acknowledged can occur to one degree or another, can result in increased sedimentation in Old Bocilla Pass, which can result in turn, in the need for increased maintenance dredging in Bocilla Lagoon and Old Bocilla Pass in the future. Maintenance dredging in Old Bocilla Pass may have to be increased if the proposed channel is constructed. The proposed channel itself will likely have to be periodically maintenance dredged as well. Maintenance dredging can cause environmental problems. Dredging activities result in the loss of marine habitat and the destabilization of marine sediments, with resulting increased turbidity and reduced photic effects, with concomitant detrimental effects on seagrasses and other bottom flora and fauna. Increased turbidity resulting from dredging and destabilization of sediments can directly adversely affect shellfish, including clams and oysters. Dredging impacts and siltation can negatively affect seagrass growth and water quality by increasing turbidity resulting in reduced photosynthesis in seagrass, by smothering the seagrass directly and by silting fauna and vegetation in adjacent productive grassbeds. Persons other than the officers and directors of Bocilla Waterways, Inc. own property and have riparian rights on the Old Bocilla Pass channel. These persons have in the past, and have the right in the future, to use Old Bocilla Pass for navigational purposes and could elect to maintenance dredge Old Bocilla Pass as they have in the past. If the proposed channel is constructed, there is obviously a more direct access and shorter water route between the waters of Bocilla Lagoon and Kettle Harbor. Water quality at times in Kettle Harbor has been worse than that in Bocilla Lagoon, especially in terms of low dissolved oxygen. If poorer water quality exists in Kettle Harbor due to low dissolved oxygen, an influx of red tide or some other cause, the construction of the proposed channel would increase the chance, by the more direct connection and increased flow in the southern end of Bocilla Lagoon, to contaminate the water of Bocilla Lagoon. The Public Interest Public opposition was expressed at the hearing, including that of ECOSWF, the Intervenor, some of whose members include people who live in the area of the proposed channel and use the involved waters. Local fishermen who harvest shellfish and finfish in Bocilla-Lagoon and Kettle Harbor, and use Old Bocilla Pass for navigation between Lemon Bay and Bocilla Lagoon, oppose the project, some of whom are members of the organized Fishermen of Florida, an association of approximately 25,000 members. Residents of Bocilla Lagoon and the immediate area, who habitually navigate Old Bocilla Pass, including local fishermen, have had little trouble navigating Old Bocilla Pass because they are familiar with the channel. Although the Petitioner alleges that the new channel is needed in part for the safety of people living on Bocilla Lagoon to assure quick access to the mainland in case of medical emergencies, the members of the public living on Bocilla Lagoon, (with one exception) and on surrounding areas of the island, do not wish such increased access for medical purposes. The island is presently reached from the mainland by either watercraft or helicopter. Formerly, there was a bridge connecting the island with the mainland which has since been destroyed, and not rebuilt. The residents living on Bocilla Lagoon, either full- time or part-time, buy their homes and choose to live there with knowledge of the present mode of access through Old Bocilla Pass, which is also the means they would achieve access to the mainland in case of medical emergencies or, alternatively, by helicopter transport or by transport over island roads to the ferry landing, with access to the mainland by ferry. The residents, in general, desire to maintain the isolation of life on the island as it presently exists and do not desire enhanced access between the island and the mainland, since part of the charm of having homes and living on the island is its isolation from the more populous mainland. Other than the testimony of Petitioner's witnesses, there was no testimony presented expressing any public need for the proposed channel, as for instance from public officials having knowledge of any medical or public health need for enhanced access to Bocilla Lagoon and the island. The proposed project is contrary to the public interest due to its adverse effects on seagrasses, shellfish, and water quality as delineated above. The adverse effects on seagrasses would result from the dredging itself and the destruction of a portion of the extant seagrass beds, and the resultant likelihood of poor survival rates in the attempted transplanting of seagrass as a replacement for that destroyed by the channel dredging. The proposed project is not in the public interest of those people with riparian rights on Old Bocilla Lagoon and northern Bocilla Lagoon, as there is substantial likelihood the proposed project will reduce flows through Old Bocilla Pass' channel with the resultant increased settling out of sediment and thus increased shoaling of that channel, which would concomitantly increase the need for maintenance dredging in Old Bocilla Lagoon and channel. Additional maintenance dredging and the possible negative effects of such additional dredging on marine, flora and fauna in Bocilla Lagoon and Old Bocilla Pass constitute an additional burden on these riparian owners, the bearing of which is not in their interest. The proposed project is also contrary to the public interest in that the proposed channel is deeper, wider and more direct as an entry into Bocilla Lagoon from Kettle Harbor and Lemon Bay, and would thus allow larger, deeper draft boats to enter Bocilla Lagoon with concomitant increased pollution from oils, greases and possible discharge of onboard sewage, which could have adverse environmental impacts on water quality in Bocilla Lagoon, as well as Kettle Harbor. The use of deeper draft, larger boats with larger propellers and more powerful engines could also result in damage to adjacent grassbeds in the vicinity of either ends of the proposed channel, either through direct propeller contact or through prop wash, when such boats are navigated in areas minimally deep enough to accommodate their draft. Since the installation of the proposed channel would result in a deeper, more readily used access to Bocilla Lagoon by larger boats with the remaining original channel usable also, at least for a time, there is a-substantial likelihood of increased residential development on riparian property around Bocilla Lagoon. This could have the result of reducing water quality in the lagoon, or potentially so, through septic tank leachate, stormwater runoff and other adverse environmental effects, such that the water in the lagoon traditionally approved for shellfish harvesting may be prohibited in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying both the variance application and the permit application sought by Bocilla Waterways, Inc. DONE and ENTERED this 24th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Kenneth O. Oertel, Esquire Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas W. Reese, Esquire Environmental Confederation of Southwest Florida 123 Eighth Street, North St. Petersburg, Florida 33701 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, 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 24th day of July, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Walker G. Miller, to construct an addition to his existing boat house of approximately 450 square feet, and an addition to his existing chain link fence, both of which are located on Lake Down, Florida. The Respondent, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioners, Milton and Gail Hess, and David Storey and others, have opposed the Department's intention to grant the permit.
Findings Of Fact The Petitioner in Case No. 80-1769, Milton Hess, is an adjacent landowner to the Applicant/Respondent, Walker G. Miller, with property located on Lake Down, near Windermere, in Orange County, Florida. The Petitioners in Case No. 80-1770, David Storey and others, are also landowners on Lake Down. Applicant's parcel is located on Down Point, which is a peninsular extending from the Lakes's southern shore. The project as contemplated by the Applicant is the construction of a 15 foot by 30 foot unenclosed addition on the north side of an existing dock/boathouse combination located on Lake Down. The 450 square foot addition is to be utilized as a storage room adjacent to the boathouse portion of his existing structure. The present structure has a total surface area of approximately 825 square feet. Additionally, by amendment to the application made on August 13, 1980, Applicant proposes to construct a chain link fence from the south property line to the dock facility. Lake Down is one of the waterbodies that constitutes the Butler Chain- of Lakes. The Lake is characterized by outstanding water quality and diversified biological resources. The Chain-of Lakes is widely recognized as the outstanding aquatic resource in the State, as far as water quality is concerned. Development on Lake Down is light, with widely scattered residential units separated by expanses of citrus groves. The construction of the addition will not significantly impact Lake Down or the Butler Chain-of Lakes, either on a long-term or short-term basis. The shading effect of the structure will result in a slight decline of rooted aguatic vegetation. However, such decline should be minimal. Further, reasonable assurances have been given that the proposed project would not result in any violations of State water quality criteria or standards. The existing dock structure now obstructs a portion of the view of the lake enjoyed by Petitioner Hess. However, by constructing the proposed addition on the north side of the existing boathouse, no further impediment of the view will occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be granted by the Department of Environmental Regulation to Walker G. Miller to construct an addition to his boathouse and a chain link Fence on Lake Down as more specifically described in his amended application. DONE and ENTERED this 2nd day of February, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1981. COPIES FURNISHED: David Storey Route 3, Box 929 Orlando, Florida 32811 Jack Ezzard and Kathryn Ezzard Route 3, Box 925 Orlando, Florida 32811 Tari Kazaros Route 3, Box 924 Orlando, Florida 32811 Mrs. H. D. Barrarly Post Office Box 203 Gotha, Florida 32734 Paula M. Harrison Post Office Box 203 Gotha, Florida 32734 Ava Careton Route 3, Box 926 Orlando, Florida 32811 Nikki Clagh Route 3, Box 928 Orlando, Florida 32811 Milton and Gail Hess 4413 Down Point Lane Windermere, Florida 32786 Walker G. Miller Post Office Box 348 Windermere, Florida 32786 B. J. Heller, Esquire 644 West Colonial Drive Orlando, Florida 32804 Richard D. Lee, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
