The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Respondent South Florida Water Management District is entitled to an environmental resource permit from Respondent Department of Environmental Protection to construct a weir in Collier County on the Merritt Canal about 3600 feet south of Interstate 75 for the purpose of extending the hydroperiod on the Florida Panther Federal Wildlife Refuge.
Findings Of Fact Proposed Permit On April 17, 1996, Respondent South Florida Water Management District (District) filed with Respondent Department of Environmental Protection (DEP) an application for the construction of a water-control structure in the Merritt Canal. The stated purpose of the structure, which is a weir, is to extend the hydroperiod of the Lucky Lake Strand. The application states that the District is the owner of a drainage easement covering the land proposed as the site of the weir. According to the application, Collier County, in which the Merritt Canal lies, originally held the drainage easement. The District later adopted the Merritt Canal as a "Works of the District," which transferred operational responsibility for the canal from the County to the District. (A sub-unit of the District, the Big Cypress Basin Board has jurisdiction for District projects of the type involved in this case. References to the District shall include the Big Cypress Basin Board.) The application requests a permit to construct an adjustable sheet-pile weir within the 80-foot Merritt Canal right-of-way. The application accurately describes the Merritt Canal as a Class III waterbody that is not an Outstanding Florida Water. By Notice of Intent to Issue Environmental Resource Permit dated January 29, 1997 (NOI), DEP proposed to issue an environmental resource permit (ERP) to the District for the construction of the Lucky Lake Strand Water Control Structure. The structure would be an adjustable weir with operating levels of 7.0 feet National Geodetic Vertical Datum (NGVD) in the wet season and 9.5 feet NGVD in the dry season. As stated in the NOI, the Merritt Canal is 12 miles long and one of four main north-south canals within a larger system of 183 miles of canals--all Class III waters-- constructed in the 1960s by Gulf American Land Corporation to drain wetlands for development of the Southern Golden Gate Estates area. These four north-south canals drain water south through the Faka Union Canal and into Faka Union Bay, which is part of the 10,000 Islands/Cape Romano Aquatic Preserve. The preserve contains Class II Outstanding Florida Waters. The NOI notes that the U.S. Fish and Wildlife Service (FWS) and District entered into an agreement in September 1994 to construct two weirs in the Merritt Canal "to partially restore historic hydroperiods into two major wetland features within the federally owned lands of the USFWS Florida Panther National Wildlife Refuge, Lucky Lake Strand and Stumpy Strand (Class III Outstanding Florida Waters)." As stated in the NOI, these federally owned wetlands constitute over 3000 acres of cypress and mixed swamps, wet prairies, marshes, and ponds. The NOI relates that FWS staff proposed the project to counteract "subtle vegetational changes and accelerated pond draw-downs [that] were taking place in the strands as a result of shortened hydroperiods caused by a three-year drought, I-75 widening activities, and subsequent canal modifications." The NOI correctly states that water in the wet season historically flowed southerly through Stumpy Strand, Lucky Lake Strand, and Picayune Strand, before entering the larger Fakahatchee Strand. Lucky Lake Strand narrows to 1000 feet at its south end, which is at Interstate 75 (I-75). The NOI accurately asserts that the construction of the Merritt Canal and the I-75 borrow canals combined to draw down the upstream wetlands, thus reducing their hydroperiods. The effect of the Merritt Canal is reportedly significant because of its confluence with the southern tip of Lucky Lake Strand. The NOI discloses that the original agreement between the District and FWS called for the construction of two weirs south of I-75, one at the headwaters of the Merritt Canal and another about 1800 feet downstream in the Merritt Canal. However, the proposed permit eliminates one weir, whose function was performed by plugs in the north I-75 borrow canal, and relocates the remaining proposed weir about 3600 feet south of I-75, rather than immediately south of I-75, reportedly because of difficulties in accessing the proposed weir at I-75. The NOI states that the Merritt Canal is within the 80-foot drainage easement originally acquired by Collier County. The uplands adjacent to the weir are reportedly owned by DEP. The NOI describes the proposed weir as a sheet pile weir with adjustable partitions. As proposed, during the wet season, the District would start to open the gates at 7 feet NGVD and start to close them at 6.5 feet NGVD. During the dry season, the District would start to open the gates at 9.8 feet NGVD and start to close them at 9.3 feet NGVD. Also, the proposed permit would anticipate that the District would dredge the canal to a trapezoidal cross-section having a bottom elevation of -1.5 feet NGVD and a width of about 49 feet at the weir and transitioning to 20-foot bottom widths upstream and downstream of the weir. According to the NOI, the purpose of the proposed weir is to reduce over-drainage of the upstream wetlands in Lucky Lake and Stumpy Strands by extending the hydroperiod further into the dry season. No increase in water levels during the wet season is expected. Although the historic extended hydroperiod is not expected to be achieved, the weir structure is expected to improve current conditions to the upstream wetlands. Holding back water in these wetlands [is] also expected to improve water quality downstream by removal of excess nutrient, sediments, and chemicals. Wildlife values are expected to be enhanced in preferred waterfowl and wading bird habitat, including areas for the endangered wood stork and threatened bald eagle. Forage areas are also expected to be improved for white-tailed deer and other wildlife species which are essential prey for the endangered Florida panther. Aquifer recharge is also expected as the ground water reserves will be raised by raising the canal water levels, while maintaining the existing level of flood protection for adjacent private landowners. The NOI states that FWS will monitor post- construction environmental conditions and will recommend to the District adjustments to the weir elevations. The NOI reports that the District will be the "main operator" of the weir to adjust elevations to maintain flood control for adjacent lands. The NOI adds: The project was designed so as not to decrease the peak discharge capacity in the canal or increase flood stages in the Upper Merritt Canal watershed. Hydraulic modeling by the District indicates that there will be no additional surface water flooding to private property as a result of the project, and the current level of service will be maintained. Based on this analysis, the NOI concludes that the District has provided reasonable assurance that the proposed activity will comply with Part IV, Chapter 373, Florida Statutes, and the underlying rules, including Chapter 62-330 and Rules 40E-4.301 and 40E-4.302, Florida Administrative Code. The NOI states that the District has demonstrated that the activity is clearly in the public interest, pursuant to Section 373.414(1)(a), Florida Statutes. The proposed permit conforms to the NOI's description. Specific Condition 13 sets the fixed crest of the proposed weir at 4.5 feet NGVD and the width of the weir at 48 feet. Although the proposed permit is nowhere explicitly conditioned on a successful wetland enhancement project, Specific Condition 12 states that "the" wetland enhancement project shall be considered successful if, after five years, Lucky Lake Strand and Stumpy Strand display wetland- appropriate vegetation and the "viability of adjacent upland sites [is] not negatively impacted by increased ground water or surface water levels resulting from the authorized project." Specific Condition 17 requires the District to document the operation of the gates and notify DEP, within three days, whenever any of the permitted elevations are exceeded. Annually, the District must supply DEP detailed data and analysis of the operational history of the weir, including "reasons for going to nonstandard operation and a narrative description of the effectiveness of initiating the nonstandard operation to include areas not flooded (or flooded, if applicable) and other associated impacts." During the final hearing, the District proposed, and DEP approved, a modification of Specific Condition 18. As modified, Specific Condition 18 requires the District to "monitor the effects of the operation" of the weir, pursuant to the revised monitoring plan incorporated by reference into this condition. The revised monitoring plan, which is dated November 12, 1997, alters the original monitoring plan by adding two sites for the installation of water-table wells. One of the new sites (Site A) is 1200 feet north of the weir, and the other new site (Site B) is 1200 feet north and 2000 feet west of the weir. These are the only water-table monitoring devices. Five other sites are surface-water monitoring sites. Three of the these sites are in the Merritt Canal: one immediately upstream of the weir, one immediately downstream of the weir, and one farther upstream at I-75. The other two surface-water monitoring sites are farther upstream. One is in Lucky Lake about 1.75 miles north of the weir, and the other is about three miles northeast of Lucky Lake. Three other sites are rainfall-monitoring sites. Two rainfall-monitoring sites are north of the weir. The site just north of I-75 is at the Ford Motor Company test track, which is immediately west of Lucky Lake and Stumpy Strands, and the site more directly north of the Merritt Canal is about ten miles north of I-75. Specific Condition 18 states the frequency with which someone (presumably a District employee or contractor) is to collect the data from these 10 monitoring sites, but contains no performance criteria. The monitoring plan thus commits the District to collecting data, but not to analyzing the data, nor, more importantly, taking specified actions when certain performance parameters are exceeded. Neither the revised monitoring plan nor the application in any way commits the District to using the data collected from the revised monitoring plan to develop a set of criteria, based on rainfall amounts, groundwater levels, and surface water levels, to fine-tune the operation of the gates so as not to exacerbate present flooding. Nothing in the revised monitoring plan or the application suggests that the District will use the data collected from the revised monitoring plan to identify more clearly the relationships between storm events and water levels to understand better the relationship between flooding, on the one hand, and the existence of the proposed weir and the operation of its gates. Faka Union Canal Watershed and Southern Golden Gate Estates What is now known as the Faka Union Canal Watershed historically covered about 234 square miles. It ran from an area about four miles north of what is now known as Immokalee Road south in a widening expanse that approached 12 miles at what is now U.S. Route 41. It then ran south until it emptied into the Gulf of Mexico at Faka Union Bay in what is now the Cape Romano Ten Thousand Islands State Aquatic Preserve east of Marco Island. Land alterations due to road and canal construction and urban and agricultural development eventually reduced the Faka Union Canal Watershed to about 189 square miles. Most noticeably, these changes narrowed the drainage area at U. S. Route 41 from almost 12 miles to little more than the width of the Faka Union Canal. The Faka Union Canal Watershed is characterized by low relief and poorly defined drainage patterns. At the north boundary of the watershed, which now ends at Immokalee Road, the elevation reaches 24 feet NGVD. Twenty-eight miles to the south, at the outlet of the basin, the elevation is two feet NGVD. The water flows generally in a southwest direction. Historically, water ran slowly through the watershed in sheetflow several miles wide and a few inches to a few feet deep. Drainage concentrated in slightly lower sloughs and strands, which generally dried out in the dry season. Historically, the watershed featured flat, swampy lands containing cypress trees, islands of pine forests, and wet and dry prairies. Prior to development, much of the watershed remained inundated by several feet of water during the five- month wet season (roughly from mid-May through mid-October). In this undisturbed state, the prominent features of the watershed were the storage of runoff in depressional areas, attenuated peak flows, and a longer hydroperiod into the dry season. In the early 1960s, Gulf American Land Corporation subdivided a 173 square-mile area in Collier County into many thousands of lots as small as 1.25 acres. The development was Golden Gate Estates. The portion of Golden Gate Estates south of I-75 is known as Southern Golden Gate Estates. Golden Gate Estates is west of the Merritt Canal. Gulf American's purpose in dredging the 183-mile canal system was to allow it to market as land, available for continuous occupation, subdivided lots superimposed over an area that was land during the dry months and water during the wet months. To achieve this objective, Gulf American Land Corporation constructed one group of canals that drains to the west and another group of canals drains to the south into the Faka Union Canal. Gulf American dredged the canals draining to the south, which form the Faka Union Canal System, from 1968 through 1971. Four north-south canals spaced two miles apart drain Southern Golden Gate Estates and the portion of the Faka Union Canal Watershed north of I-75. From west to east, the canals are the Miller Canal, Faka Union Canal, Merritt Canal, and Prairie Canal. Only the two westerly canals run north of I-75. The Miller Canal extends almost seven miles north of I-75, and the Faka Union Canal extends about 14 miles north of I-75. The Merritt Canal starts in the immediate vicinity of I-75, and the Prairie Canal starts about two miles south of I-75. The average excavated depth of the four canals is about ten feet from the top of the bank to the bottom of the channel. Given the relatively close proximity of the water table to the surface in this area, excavation to these depths thus established a direct hydraulic connection with the surficial aquifer. The canals are large, ranging from 45 to over 200 feet wide. Although unable to convey without flooding the water from even a ten-year storm event, which is the level of service standard set by Collier County for Southern Golden Gate Estates, the Faka Union Canal system has nonetheless severely impacted the water resources of Collier County. According to the Hydrologic Restoration of Southern Golden Gate Estates, prepared in February 1996 by the Big Cypress Basin Board (Southern Golden Gate Estates Restoration Plan): . . . Construction of the canals has led to both increased volumes and rates of runoff from the watershed which has had lasting effects on the area's water supply, vegetation, wildlife, and coastal estuaries. The canals intercept large volumes of surface and subsurface flow and quickly divert them to the Faka Union Bay and the Ten Thousand Island Estuary of the Gulf of Mexico resulting in less surface water available for storage. Since groundwater recharge is achieved primarily through infiltration from surface detention storage, reduced groundwater recharge threatens both groundwater supply for the region and the natural barrier to salt water intrusion. Continued overdrainage has caused an eventual lowering of the groundwater table. This has caused vegetation to change from wetland dominant to transitional and upland systems with invasive exotic species. The extreme dry conditions caused by overdrainage have resulted in more frequent and more intense wildfires with a greater destructive impact on vegetation. The increased runoff rate has had severe effects on the receiving estuaries. Historically, the estuaries would receive broad, slow moving sheets of water that were capable of carrying essential nutrients but not high sediment loads. This has been replaced with point loads of freshwater at the Faka Union Canal outlet that push salinity levels down and result in freshwater discharge shocks throughout the Ten Thousand Island Estuary. The increased runoff rate drains the area quickly and does not allow the hydroperiods necessary to sustain wetland vegetation. . . . Southern Golden Gate Estates Restoration Plan, pages 8-9. The major roadway affecting the Faka Union Canal Watershed is State Road 84, which was a two-lane road constructed in 1966. In 1990, construction was completed transforming State Road 84 into four-lane I-75. These road projects have hastened drainage of the lands to the north of I-75 and east of the Faka Union Canal. The land north of the Merritt Canal is largely undeveloped. If one were to extend the Merritt Canal due north of I-75, it would run through the middle of Lucky Lake Strand and much of Stumpy Strand, which is immediately to the north of Lucky Lake Strand. Agricultural land owned by Collier Enterprises is just north of the Ford Motor Company test track and immediately west of Lucky Lake Strand. Agricultural land owned by Baron Collier Company is immediately north of Stumpy Strand. This imaginary extension of Merritt Canal would mark the west boundary of the Florida Panther National Wildlife Refuge, which was established in June 1989. The Florida Panther National Wildlife Refuge constitutes 26,000 relatively undisturbed acres immediately north of I-75. Intervenor Clifford Fort owns property south of the refuge on the south side of I-75. The Florida Panther National Wildlife Refuge features mostly wetlands, oak hammocks, pine flatwoods, and prairies. The refuge receives runoff from stormwater and possibly agricultural pumping of the water table from the adjacent farmland. In addition to draining into the headwaters of the Merritt Canal near the southwest corner of the refuge, the refuge also drains into the northerly borrow canal running along the north side of I-75. In the vicinity of the Merritt Canal, the four borrow canals running along the north and south sides of I-75, on both sides of the Merritt Canal, drain in the direction of the Merritt Canal. Listed species using the Florida Panther National Wildlife Refuge include the Florida panther, Florida black bear, wood stork, roseate spoonbill, limpkin, and Eastern Indigo snake. In October 1995, an inordinate amount of rain fell in the area. Attracted by the increased water depths, which more closely approximated historic conditions, 75 wood storks nested in the Lucky Lake Strand; in drier years, wood storks do not nest in the strand. Lucky Lake Strand occupies the southwest corner of the Florida Panther National Wildlife Refuge. Lucky Lake and two other ponds are present in this area. When full, Lucky Lake and one of the ponds are about 50 meters wide, and the third pond is about half of this width. During the dry season, a person can throw a stone across any of the ponds. Historically, Lucky Lake and Stumpy strands passed surface water into the Picayune Strand, which is west of the Merritt Canal and south of I-75, from which the water ran into the Fakahatchee Strand. Lucky Lake Strand presently narrows to about 1000 feet at I-75. The hydrologic connection between the outlet of Lucky Lake Strand and the headwaters of the Merritt Canal has contributed significantly to the overdrainage of these two strands, which occupy a significant area within the federal refuge. The FWS wildlife biologist stationed at the Florida Panther National Wildlife Refuge reported in a habitat assessment report prepared in August 1996 that four ponds in the strand dried out by December so that they could not sustain fish or provide feeding habitat for birds. Permitting Criteria Public Health, Safety, or Welfare or Others' Property One of the main disputes between the parties is the affect of the proposed weir on flooding. This case is largely about flooding or, more generally, the amount of water to be stored for a specified period of time. Petitioners and Intervenors fear that the District's effort will cause flooding to areas south of I-75 and east and west of the Merritt Canal. Occupying property within a vast area whose natural drainage patterns have been greatly disrupted, Petitioners and Intervenors justifiably fear the ravages of flood and fire. Although this area was undoubtedly subject to these hazards prior to man's alteration of the natural landscape, large- scale alterations to natural drainage in Southwest Florida have artificially heightened the risk presented by these natural hazards. Destructive flooding follows the inhabitation of areas historically devoted to the storage of considerable volumes of water; the flooding is exacerbated where, as here, natural drainage features have been replaced by artificial facilities that are inadequate for both the natural flows and the new, artificial flows generated by development. Although inadequate for the natural and artificial flows generated by even design storm events, the artificial drainage facilities nevertheless change historic drainage rates, accelerating the rate and volume of natural drainage and shortening the hydroperiod. In this manner, the artificial drainage facilities contribute to the desiccation of previously saturated soils and foster conditions suitable for dangerous fires. Initially, Petitioners and Intervenors contend that the District seeks approval of the proposed weir as an indirect means of implementing the Southern Golden Gate Estates Rehydration Plan. Little evidence supports this concern. The Southern Golden Gate Estates Rehydration Plan outlines several alternatives for the proposed rehydration of Southern Golden Gate Estates. The preferred alternative does not call for a weir at the proposed location. The purpose of the proposed weir is to rehydrate an area north of the Southern Golden Gate Estates. As discussed below, the role of the proposed weir in rehydrating Southern Golden Gate Estates appears insubstantial to the point of nonexistent. Focusing on the location of the proposed weir over half of a mile downstream from the southernmost part of the area intended to be rehydrated, Petitioners and Intervenors dispute the stated purpose of the project, focusing on the District's earlier relocation of the proposed weir from positions just north and then just south of I-75 to its present position a half-mile farther to the south. The District did nothing to allay this concern of Petitioners and Intervenors when its employees could not provide a reasonably detailed explanation of the process by which someone moved the proposed site to the south. From the District's evidence, one would infer that the decision to relocate the proposed weir to the south spontaneously emerged, without human sponsor, in the course of bureaucratic decisionmaking. The District asserted that the northerly sites were impractical due to access problems. However, the District made little, if any, real effort to see if the Department of Transportation would allow access to these more northerly sites--one of which the District might be able to access without the consent of the Department of Transportation. The record does not reveal why the District relocated the proposed weir to its present location, considerably south of its initial two locations at I-75. Again, though, the evidence does not support the contention of Petitioners and Intervenors that the relocation decision was part of a private plan among District employees to incorporate the proposed weir as part of a more ambitious project to rehydrate Southern Golden Gate Estates. Nor does the evidence establish, as Petitioners and Intervenors contend, that the relocation decision was driven by the concerns of three influential landholders to the north of I-75--Collier Enterprises, Barron Collier Company, and Ford Motor Company. These three landholders approved the proposed weir in its present location over a half-mile to the south of its original locations and may have expressed concern that the original locations at I-75 would unreasonably raise the risk of flooding their land and business and agricultural activities to the north of I-75. If the District's real reason for relocating the proposed weir was due to objections from these landowners to the north of I-75, this reason would not itself help Petitioners and Intervenors. If the District acceded to the demands of these landowners to the north, it does not necessarily follow that the District lacked confidence in its flood calculations. A relocation decision under these circumstances would have as likely reflected political, as scientific, concerns. Additionally, if the District moved the proposed weir at the insistence or suggestion of the landowners to the north, any flooding concerns voiced by these landowners raise different issues from the flooding concerns raised by Petitioners and Intervenors. Owners of land immediately to the north and west of the federal refuge are more directly within the area of the intended effects than are Petitioners and Intervenors. More substantially, Petitioners and Intervenors claim that the proposed activity is so negligently designed or will be so negligently operated as to result in heightened and more frequent flooding of areas to the west and east of the proposed weir. The District's record in operating weirs in Collier County is not flawless. In recent years, the District constructed and maintained a weir with unlawfully high gates and did not correct the noncompliant water-control structure for several months after first learning of the violation. However, this appears to have been an isolated violation. The division of responsibility between the District and Collier County for the maintenance of drainage canals is based on whether the canal is a primary or secondary drainage facility. The District has assumed responsibility for all of the primary drainage facilities in Collier County. Surprisingly, though, the record reveals no master map or index of the primary drainage facilities and at least the larger nonprimary drainage facilities. However, Petitioners and Intervenors failed to show that any confusion concerning maintenance responsibilities that may exist between the District and Collier County would appreciably raise the probabilities that the District would operate the proposed weir in such a way as to exacerbate present flooding concerns. The District and Collier County agree that the District has jurisdiction over the Merritt Canal. Petitioners and Intervenors have also failed to show that any confusion concerning secondary-drainage contributions that may exist between the District and Collier County would have a substantial impact on the successful operation of the proposed weir. The most significant claim raised by Petitioners and Intervenors asserts that the District failed to provide reasonable assurance that the proposed weir would not exacerbate flooding. Although the weir gates would be closed only during the dry season, the proposed activity requires analysis of the risk of heightened water elevations upstream of the proposed weir. In theory, flooding could result from the effects of the weir even when the gates are open, as well as the possibility of an extreme storm event during the dry season. Expert witnesses on both sides clashed over whether the design of the proposed weir was sufficient not to exacerbate existing levels, rates, and frequencies of flooding of adjacent uplands. The crucial feature over which the experts disagreed was the spoil banks running along the canal. When the Merritt Canal was constructed, the spoil was dumped along the banks. In the ensuing years, vegetation colonized and stabilized the spoil banks, which now function as levees. The expert witness called by Petitioners and Intervenors disregarded the spoil banks in his calculations. His lack of confidence in the opposing expert witness's use of top-of-bank elevations was partly justified for the reasons stated below. Although a minor point, part of the argument of Petitioners and Intervenors' expert witness proved too much by asserting that levees cannot maintain water levels higher inside the levee than the existing ground elevation outside the levee. On the other hand, in showing that the proposed weir would not exacerbate flooding, the District's expert witness relied, not entirely justifiably, on the top-of-bank elevations. The District took only spot elevations of the spoil bank and then assumed that these elevations prevailed along the entire 3600 feet of canal upstream of the weir. The District did not inspect the upstream banks for unpermitted culverts, of which at least one was discovered during the lengthy hearing in this case. There is a possibility of material differences in elevations along the spoil banks. These spoil banks were not constructed to a specified elevation; they were an excavation byproduct that was haphazardly deposited beside the excavated canal. Additionally, the record suggests that this general area has been the site of unpermitted works, such as the installation of a culvert and creation of unpermitted canal plugs. In the months over which the hearing took place, Petitioners and Intervenors alertly found a culvert breaching the spoil bank upstream of the proposed weir. At least one of their representatives demonstrated superior familiarity with the spoil bank over the familiarity demonstrated by the District's representatives. It is a fair inference that, if the spoil bank was substantially missing at any point upstream of the proposed weir, Petitioners and Intervenors would have brought such evidence to the hearing. The absence of such evidence, coupled with the reasonable inferences that may be drawn from the concededly more cursory investigation of the site by the District, precludes a finding that the spoil bank is substantially missing at any material point so as to warrant the use of ground elevations, as used by the expert witness called by Petitioners and Intervenors. At best, from the perspective of Petitioners and Intervenors, the record supports the finding that the spoil banks may not be as continuously as high as the District posits, but they are not nearly as low (i.e., nonexistent) at any point as Petitioners and Intervenors contend. The two experts also disagreed over two subordinate inputs used in running the flood calculations. The expert called by Petitioners and Intervenors claimed that initial tailwaters (i.e., water elevations downstream of the weir) in excess of 8.53 feet were appropriate. Although the canal has experienced historically higher tailwaters than 8.53 feet, the expert did not explain adequately why such higher tailwaters should be used in running the model, especially since flood calculations are not used to predict flooding conditions in all storms, such as a 1000-year storm. Absent a showing that tailwater in excess of 8.53 feet would be present at the relevant time preceding or during the design storm event, the expert called by Petitioners and Intervenors failed to show why the District's tailwater input was unreasonable. On the other hand, the District's expert claimed that the model required an adjustment to the friction factor or Manning's N coefficient. This adjustment, which decreased the friction factor by an order of magnitude, approximated a bottom that was many times smoother than the actual bottom of the Merritt Canal. The District's expert did not explain adequately why the lower friction factor should be used in running the model, and he frankly did not demonstrate the same familiarity with this friction factor as did the expert called by Petitioners and Intervenors. The most likely inference is that the District's expert erred in making this adjustment. There was another controversy between the parties regarding a subordinate input for the flooding calculations. Petitioners and Intervenors raised the possibility that agricultural discharges from the Collier properties adjacent to the federal refuge, which the District ignored in its calculations, might further undermine any assurances as to flooding. This could have been useful information if developed in the record, but the record permits no basis to quantify the value of this additional discharge or ascertain its timing relative to wet and dry seasons and storm events, if in fact this agricultural discharge takes place at all. Also, offsetting any such discharge would be two factors: the District ran its calculations assuming a runoff rate 25 percent greater than that appropriately used by the Florida Department of Transportation for modeling the design storm event, and the District ignored the plugs in the I-75 borrow canals, which attenuate the runoff into the Merritt Canal. Although Petitioners and Intervenors incorrectly inputted ground elevation in place of the top-of-bank elevation--when the best elevation is somewhere in between these two values--their expert's calculations are useful for illustrating a scenario that, for this reason, exceeds the worst-case scenario. Again, this is an illustration of a scenario that predicts greater flooding than reasonably should be predicted because, in actuality, the restraining elevation is higher than ground elevation. Using the 8.53-feet initial value for tailwater, Petitioners' Exhibit 27 illustrates the different water elevations resulting from running the model with and without the excessive reduction of the friction factor. Petitioners Exhibit 27 illustrates the effect of the design storm on upstream water elevations with the gates open. Petitioners Exhibit 27 ignores the spoil banks and instead uses prevailing ground elevations. At the site of the proposed weir, the canal bottom is at about -1.5 feet NGVD. The proposed weir would add fixed barriers up to an elevation of 5.0 feet NGVD; the adjustable gates would, when closed, extend the barrier from 5.0 feet NGVD to 9.5 feet NGVD. Approximate existing ground elevation averages about 10 feet NGVD downstream of I-75, with one dip to below 9 feet NGVD about 600 feet downstream of I-75. For about 6000 feet upstream of I-75, where there is no spoil bank whatsoever, the average ground elevation, outside of the slough, is about 13 feet. The slough bottom in this area gently slopes from about 9 feet NGVD to 10 feet NGVD. Ignoring the spoil bank, Petitioners Exhibit 27 predicts flooding in two major areas in the design storm event, even with the gates open. One of these is about 300 feet long, starting about 400 feet downstream of I-75. The other is at least 300 feet long, starting near the northern extreme of the modeled area and running off the modeled area. The District did not survey in detail the spoil bank along the 300 feet downstream of I-75. There is no spoil bank upstream of I-75 because there is no dredged canal. The water elevation about 400 feet downstream of I-75 would be almost one foot greater than the ground elevation. The water elevation about 6000 feet upstream of I-75 will be as much as half of a foot greater than the ground elevation. At the more downstream point, the actual water elevation would exceed the District's projection by nearly three-quarter of one foot. At the more upstream point, the actual water elevation would exceed the District's projection by over 1.5 feet. Although the record could have been better developed on this important point, there is reasonable assurance that the existing spoil-bank elevations are sufficient to contain these flood elevations predicted by the expert called by Petitioners and Intervenors. Petitioners and Intervenors claimed that the District could achieve its stated purpose of extending the hydroperiod in the Florida Panther National Wildlife Refuge without increasing the risk or extent of flooding of adjacent uplands. Petitioners and Intervenors suggested that the District repair an existing plug in the Merritt Canal just south of I-75. (This "plug" is actually the original ground surface, which evidently was undisturbed during the construction of I-75. Given the excavation of canals on both sides of what is now a narrow strip of earth, the land resembles a plug, and this recommended order refers to it as a plug, although this term is descriptive only of the feature's present appearance, not its method of creation.) There are actually six plugs--again, in the broad sense of the word--in the vicinity of the junction of the Merritt Canal and I-75. Two plugs interrupt the flow into the Merritt Canal of the borrow canals to the north of I-75. Two plugs likewise interrupt the flow into the Merritt Canal of the borrow canals to the south of I-75. The last two plugs are in the Merritt Canal, a few feet north and south of I-75. Repairing the plug immediately south of I-75 would raise the water elevation by about 1.3 feet under the I-75 bridge. By about 2000 feet upstream of I-75, there is no significant difference between the water elevation using the model of Petitioners and Intervenors' expert for the proposed weir 3600 feet downstream of I-75 and the water elevation for the proposed plug repair just south of I-75. Repairing the plugs would have reduced the water elevation downstream of I- 75 by less than one half of a foot. Petitioners, Intervenors, and their expert have proposed a promising alternative to the proposed weir. The alternative appears to serve the stated purpose of the proposed activity at least as well as the proposed weir would, if not somewhat better due to its closer proximity to the targeted federal refuge, and the alternative project would cost much less to construct, maintain, and operate. The restorative nature of the work would probably relieve the District of the necessity of obtaining a permit. Perhaps the prospect of such work might motivate other state and federal agencies to grant the District access to the area at I-75 to build the weir at one of its first two locations. However, the issue is whether the District has provided reasonable assurance for the activity that it has proposed. As to flooding, the District has provided reasonable assurance that the proposed activity will not exacerbate flooding during the design storm events or even more severe storm events. Even assuming an absence of reasonable assurance as to flooding, the first criterion requires consideration of whether the proposed activity would adversely affect the public health, safety, and welfare or the property of others. Extending the hydroperiod of the federal refuge protects the property of others by reducing the period of time that the turf is dried out. This provides a wide range of environmental protection, including protection against the risk of fire caused by excessive drainage, for the federal refuge and other property in the area. Retarding the artificially high rate of drainage will improve water quality in at least two respects. The proposed weir will retard and reduce the nutrients conveyed down the canal and into the estuary into which it eventually empties. The proposed weir will also tend to restore somewhat the rate and timing of historic freshwater inputs on which the viability of the estuary and its inhabitants depends. Concerns about public health, safety, and welfare, as well as the property of others, cannot be severed from these broadscale environmental benefits to be derived from the proposed activity. Public health concerns are tied to these considerations. Thus, even if the District had failed to provide reasonable assurance as to flooding alone, the District has provided reasonable assurance that, on balance, the proposed weir will not adversely affect the matters set forth in the first criterion. Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitats The proposed weir will serve the conservation of a wide range of flora and fauna, as well as their wetlands habitat, within the targeted federal refuge. These species include listed species. The evidence does not support a finding that extending the hydroperiod of the federal refuge would in any way disturb the Florida panther. Navigation, Flow of Water, or Harmful Erosion or Shoaling The proposed weir will have not adversely affect navigation or the flow of water within the canal, and it will not cause erosion or shoaling. Fishing or Recreational Values or Marine Productivity in the Vicinity of the Activity The proposed weir will not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed weir. To the contrary, the proposed weir will enhance these values in the immediate vicinity of the proposed weir and downstream at the estuary at the mouth of the Merritt Canal. Temporary or Permanent Nature The proposed weir will be of a permanent nature. Significant Historic and Archaeological Resources The record provides no basis for a finding that the proposed weir jeopardizes significant historic and archaeological resources. Current Condition and Relative Value of Functions of Areas Affected by the Proposed Activity The federal refuge is functioning well environmentally, despite the adverse impact of dramatic disruptions of the natural drainage regime. The value of these functions is high. Likewise, the receiving estuarine waters are functioning well, despite the adverse impact of dramatic disruptions of the natural drainage regime. Extending the hydroperiod of the federal refuge will partially offset these historic disruptions. Thus, the proposed weir will assist in the functioning of natural systems that are now functioning well, but could use some help. Public Interest The proposed weir is not in an Outstanding Florida Water. Thus, the question is whether the proposed activity is not contrary to the public interest. The District has provided reasonable assurances as to the preceding seven criteria sufficient to demonstrate that, on balance, the proposed activity is not contrary to the public interest. Cumulative Impacts There is no evidence that the proposed weir will cause any adverse cumulative impacts upon wetlands or surface waters. Other Criteria The District has proved that the proposed weir would not violate any water quality standards. To the contrary, any effect from the proposed activity would be to improve water quality, especially downstream at the estuary. The restoration of conditions more typical of historic drainage would allow more nutrients to be captured upstream and would tend to restore the historic timing and volume of freshwater inputs into the estuary. For the reasons set forth above, the District has also provided reasonable assurance that the proposed activity meets the 11 criteria contained in Rule 40E-4.301, which largely duplicate the seven criteria discussed above, and the relevant provisions of the Basis of Review. It is true that the monitoring provisions are largely illusory because they provide no quantifiable parameter beyond which the District must take specified action. In other words, at best, the monitoring provisions assure that the District will collect post-operational flooding data, but they do not promise that the District will take any action if certain levels of flooding take place. However, the monitoring provisions are of little importance given the factual findings concerning flooding, as discussed above, and the legal requirements of the Basis of Review, as discussed below.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the permit for the construction of the proposed weir about 3600 feet south of I-75 in the Merritt Canal. DONE AND ENTERED this 25th day of June, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1998. COPIES FURNISHED: James W. McDonald, Jr., Esquire McDonald & Associates Community Plaza, Suite 306 15600 Southwest 288th Street Homestead, Florida 33030 A. Glenn Simpson Qualified Representative 5961 22nd Avenue Southwest Naples, Florida 34116 Marcy I. LaHart Associate Attorney South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416-4680 Francine M. Ffolkes Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Walter R. Shaw, Sr., pro se 1400 Northwest 62nd Avenue Sunrise, Florida 33313-6138 Cliffort L. Fort 8410 Northwest 16th Street Pembroke Pines, Florida 33024 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208. The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/
Findings Of Fact The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/ Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.
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.
Findings Of Fact At all times to the issues herein the Department of Environmental Protection was the state agency in Florida responsible for the regulation of water pollution and the issuance of dredge and fill permits in the specified waters of this state. Mr. Byrd has been a resident of the City of Treasure Island, Florida for many years and resides at 123 123rd Avenue in that city. His property is located on Boca Ciega Bay next to a public boat ramp operated by the City. On April 12, 1995, the City of Treasure Island applied to the Department of Environmental Protection for a permit to construct a dock six feet wide by seventy-five feet long, located on the edge of its property on which the public boat ramp is located. This property is located in a basin off Boca Ciega Bay, which is classified as a Class III Outstanding Florida Water. The dock involves the placement of pilings in the water, and the construction of a walkway thereon. In order to be obtain a permit, the applicant must provide the Department with reasonable assurances that the proposed project will not degrade water quality and will be in the public interest. The project is permanent in nature, but the temporary concerns raised by construction have been properly addressed in the permit. In the instant case, the dock is intended to accommodate the boating public which will utilize it to more safely launch, board, debark, and recover small boats at the ramp in issue. The dock will be equipped with a hand rail which will increase the safety of the project. Evidence establishes that without the dock, boaters have to enter the water to launch and recover their boats on a ramp can be slippery and dangerous. The site currently in use as a boat ramp, a part of which will be used for the dock, is almost totally free of any wildlife. No evidence could be seen of any sea grasses or marine life such as oysters, and there was no indication the proposed site is a marine habitat. Manatees do periodically inhabit the area, and warning signs would be required to require construction be stopped when manatee are in the area. The water depth in the immediate area and the width of the waterway is such that navigation would not be adversely impacted by the dock construction, nor is there any indication that water flow would be impeded. No adverse effect to significant historical or archaeological resources would occur and taken together, it is found that the applicant has provided reasonable assurances that the project is within the public interest. Concerning the issue of water quality, the applicant has proposed the use of turbidity curtains during construction which would provide reasonable assurances that water quality would not be degraded by or during construction. The water depths in the area are such that propeller dredging and turbidity associated therewith should not be a problem. No evidence was presented or, apparently is on file, to indicate any documented water quality violations at the site, and it is unlikely that water quality standards will be violated by the construction and operation of the structure. The best evidence available indicates there would be no significant cumulative impacts from this project. Impacts from presently existing similar projects and projects reasonably expected in the future, do not, when combined with the instant project, raise the possibility of adverse cumulative degradation of water quality or other factors of concern. By the same token, it is found that secondary impacts resulting from the construction of the project would be minimal. It is also found that this project is eligible for an exemption from the requirements to obtain a permit because of the Department's implementation on October 3, 1995 of new rules relating to environmental resources. However, the City has agreed to follow through with the permitting process notwithstanding the exemption and to accept the permit including all included conditions. This affords far more protection to the environment than would be provided if the conditions to the permit, now applicable to this project, were avoided under a reliance on the exemption to which the City is entitled under current rules. To be sure, evidence presented by Mr. Byrd clearly establishes the operation of the existing boat ramp creates noise, fumes, diminished water conditions and an atmosphere which is annoying, discomfiting, and unpleasant to him and to some of his neighbors who experience the same conditions. Many of the people using the facility openly use foul language and demonstrate a total lack of respect for others. Many of these people also show no respect for the property of others by parking on private property and contaminating the surrounding area with trash and other discardables. It may well be that the presently existing conditions so described were not contemplated when the ramp was built some twenty years ago. An increase in population using water craft, and the development and proliferation of alternative watercraft, such as the personal watercraft, (Ski-Doo), as well as an apparent decline in personal relations skills have magnified the noise and the problem of fumes and considerably. It is not likely, however, that these conditions, most of which do not relate to water quality standards and the other pertinent considerations involved here, will be increased or affected in any way by the construction of the dock in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue to the city the requested permit to construct the dock in issue at the existing public boat ramp at the east end of 123rd Avenue right of way in the City of Treasure Island. RECOMMENDED this 12th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1995. COPIES FURNISHED: Ronald Schnell, Esquire 3535 First Avenue North St. Petersburg, Florida 33713 James W. Denhardt, Esquire 2700 First Avenue North St. Petersburg, Florida 33713 Christine C. Stretesky, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development. George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW). The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area. A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation: Special Waters * * * Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91). * * * In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area. Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep. Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed. Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years. Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society. The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to 500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include: * * * An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; and An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. Additionally, Rule 17-302.700(4)(e) provides: An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion. It is undisputed that the EIS properly addressed the costs of implementation to the Department. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D) Both parties have invoked the plan amendments for their own purpose. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed. This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction. DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7) Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation. The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.
Findings Of Fact The Parties. The Petitioners, Joseph and Lena Smith, Eugene and Anna Colwell, and Jerry and Brenda Harris, are littoral owners and operators of sports fishing facilities on Orange Lake, a freshwater body of approximately 7,000 acres of open water and 15,000 acres of associated wetlands, whose southern margin constitutes the boundary between Alachua and Marion Counties in north central Florida. Respondent, the St. Johns River Water Management District (hereinafter referred to as the "District"), is a special taxing district created by Chapter 373, Florida Statutes, charged with the statutory responsibility for the management of water and related land resources; the promotion of conservation, development, and proper utilization of surface and ground water; and the preservation of natural resources, fish and wildlife, pursuant to Chapter 373, Florida Statutes. Intervenor, the Sierra Club, Inc. (hereinafter referred to as "Sierra"), is a not-for-profit California corporation registered to do business within the State of Florida. Sierra is an international corporation whose purpose is to explore, enjoy and protect the natural resources of the earth. Intervenor, Florida Defenders of the Environment, Inc. (hereinafter referred to as "Florida Defenders"), is a not-for-profit Florida corporation whose purpose is to preserve and restore Florida's natural resources. Intervenor, the Florida Department of Environmental Protection (hereinafter referred to as "DEP"), is an agency of the State of Florida charged with the responsibility of controlling and prohibiting pollution of the air and water of the State of Florida. See Chapter 403, Florida Statutes. DEP is also charged with responsibility for management of the Paynes Prairie State Preserve. Section 373.026, Florida Statutes. Intervenor, the Attorney General of the State of Florida (hereinafter referred to as the "Attorney General"), sits as a Trustee of the sovereignty submerged lands of the State and as one of the legal owners of the State's property including the Paynes Prairie State Preserve. The Challenged Rules. The District issued an order on November 7, 1993, authorizing the publication of a notice of intent to amend Chapter 40C-2, Florida Administrative Code, by adopting proposed Rule 40C-2.302, Florida Administrative Code, and amending Rule 40C-2.051(6), Florida Administrative Code (hereinafter jointly referred to as the "Challenged Rules"). Proposed Rule 40C-2.302, Florida Administrative Code (hereinafter individually referred to as the "Reservation Rule"), provides: 40C-2.302 Reservation of Water From Use. The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. The specific authority for the Reservation Rule is Sections 373.044, 373.113, 373.171, 373.216 and 373.219, Florida Statutes. The law implemented by the Reservation Rule is Sections 373.219 and 373.223, Florida Statutes. The proposed amendment to Rule 40C-2.051, Florida Administrative Code (hereinafter individually referred to as the "Exemption Rule"), provides, in pertinent part: 40C-5.2.051 Exemptions. No permit shall be required under the provisions of this rule for the following water uses: through (5) No change (6) Water, whether withdrawn or diverted, when used for purposes of protection of fish and wildlife or the public health and safety when and where the Governing Board has, by regulation, reserved said water from use by permit applicant pursuant to Subsection 373.223(3), F.S. The specific authority for the Exemption Rule is Sections 373.044, 373.113 and 373.171, Florida Statutes. The law implemented by the Exemption Rule is Sections 373.103, 373.171, 373.216, 373.219, 403.501 et seq. and 288.501 et seq., Florida Statutes. Orange Creek Basin. Orange Creek Basin is the name given to the hydrological features of approximately 400 square miles of Alachua, Putnam and Marion Counties, Florida. Orange Creek Basin is a major sub-basin of the Lower Ocklawaha River Basin. Surface water in the Orange Creek Basin flows generally in a north to south direction. Orange Creek Basin is made up of several sub-basins, including Newnans Lake, Paynes Prairie, Orange Lake and Lochloosa Lake sub-basins. Surface water within the approximately 100 square miles of Newnans Lake sub-basin drains into Newnans Lake. When sufficiently high, water in Newnans Lake discharges over a weir structure from the southern end of the lake into Prairie Creek. The weir structure at the southern end of Newnans Lake may be adjusted to control the amount of water flowing into Prairie Creek. The weir was installed in 1966. It was adjusted by the Florida Game and Freshwater Fish Commission in 1976. Water flows south into Prairie Creek, the south and southwest through Prairie Creek to two man-made structures. The first is a gated culvert structure consisting of 3 Culverts (the "Camps Canal Culverts"), through which some of the Prairie Creek water enters Paynes Prairie. The second man-made feature is a levee and a canal named Camps Canal. The levee diverts water in Prairie Creek, which does not flow into Paynes Prairie by gravity, through Camps Canal to the south to the River Styx, which flows into Orange Lake. If the elevation of surface water in Prairie Creek exceeds 58.91 feet National Geodetic Vertical Datum (hereinafter referred to as "NGVD"), a portion of the volume of Prairie Creek will flow, by gravity, into Paynes Prairie through the Camps Canal Culverts. The Paynes Prairie sub-basin covers an area of approximately 49 square miles. Surface water in this sub-basin drains into a natural geological feature known as Alachua Sink. Surface water in the approximately 56 square mile Orange Lake sub- basin flows into Orange Lake. Surface water flows out of Orange Lake through Orange Creek. Outflow is controlled by Orange Lake Dam. The Orange Lake Dam has a fixed crest elevation of 58 feet NGVD. Water levels in Orange Lake must exceed 58 feet NGVD before there is surface water outflow from Orange Lake. Surface water within the approximately 75 square mile Lochloosa Lake sub-basin drains into Lochloosa Lake. Lochloosa Lake has two outlets: Lochloosa Slough in the east and Cross Creek in the south. Cross Creek connects Lochloosa Lake to Orange Lake. Paynes Prairie State Preserve. Prior to the construction of the weir at the outlet from Newnans Lake to Prairie Creek, all surface water from Newnans Lake flowed from Newnans Lake to Prairie Creek unimpeded. Prior to 1927 all surface water in Prairie Creek flowed south into an area known as Paynes Prairie. Paynes Prairie is located in Alachua County. All water in Prairie Creek entered Paynes Prairie and flowed across Paynes Prairie to Alachua Sink. Alachua Sink is a natural geological feature located in the north- central portion of Paynes Prairie. At Alachua Sink surface water enters the Florida aquifer. In 1927 a levee was constructed around the eastern boundary of Paynes Prairie, and Camps Canal was excavated in order to divert water from Paynes Prairie. Due to the levee, water in Prairie Creek was diverted into Camps Canal beginning in approximately 1927. The water flowed into the River Styx and then into Orange Lake. Canals and levees were also constructed within Paynes Prairie to convey surface water in Paynes Prairie into Alachua Sink and Camps Canal. The modifications to Paynes Prairie made in 1927 were intended to drain Paynes Prairie so that the land could be utilized for agricultural purposes, including the raising of cattle. Paynes Prairie continued to be used primarily for the raising of cattle between 1927 and early 1970. In 1970, the State of Florida began acquiring parts of Paynes Prairie. Property acquired by the State was used to create the Paynes Prairie State Preserve (hereinafter referred to as the "Preserve"). Land is still being acquired by the State. The Preserve currently consists of approximately 20,600 acres. Approximately 18,000 acres of the Preserve were acquired within the first 4 years after acquisitions by the State began. Approximately 12,000 acres are considered wetlands. Two major highways, U.S. Highway 441 and Interstate 75 run north-south across the middle and western portion of Paynes Prairie. U.S. 441 was constructed in 1927 and I-75 was constructed in 1964. In 1975 the State of Florida's Department of Natural Resources (which is now DEP) breached the levee at Camps Canal in order to restore part of the water flow from Prairie Creek to the Preserve. In 1979 flashboard riser Culverts were placed in the breach in the Camps Canal levee. In 1988 the Camps Canal Culverts were constructed. The Preserve, a unique land feature, was designated a National Natural Landmark in 1974 by the United States Department of the Interior. No consumptive use permit concerning water that flows into Paynes Prairie or the Preserve has been issued by the District. No consumptive use permits have been issued by the District for surface water withdrawals from Newnans Lake, Prairie Creek or Orange Creek. The Current General Hydrologic Condition of the Preserve. The Preserve is one of the largest continuous wetland systems in Florida and the Southeastern United States. The Preserve and Paynes Prairie constitute one of the largest wetland areas formed by the collapse of a sinkhole, Alachua Sink. Since 1975, at least some water has flowed into the Preserve from Prairie Creek through the Camps Canal Culverts and its predecessors. The "inverts" of the Prairie Creek-Camps Canal Culverts are above the creek-canal bottom. This means that if water in Prairie Creek does not reach a certain level, no water will flow through the Camps Canal Culverts into the Preserve. Under these conditions, all water in Prairie Creek will flow through Camps Canal and eventually to Orange Lake. The amount of water flowing through the Camps Canal Culverts is also limited to a maximum amount due to the size of the Culverts. The exact amount of water that may flow through the Camps Canal Culverts into the Preserve depends on the amount of water in Prairie Creek coming from Newnans Lake and the capacity of the Culverts to move the water. Water flowing into the Preserve through the Camps Canal Culverts constitutes approximately 50 percent of the surface water entering the Preserve. After water flows into the Preserve through the Camps Canal Culverts it flows in a broad, shallow path, referred to as "sheetflow," over the eastern portion of the Preserve. The sheetflow from Camps Canal Culverts creates approximately 550 to 600 acres of shallow marsh community. The water eventually flows into an area known as Alachua Lake in the central portion of the Preserve. Water discharging from Alachua Lake flows through a water control structure consisting of four gated Culverts, known as the Main Structure, into Alachua Sink. Water also enters the Preserve from the north through a tributary known as Sweetwater Branch. Water flows through Sweetwater Branch into Alachua Sink. Sweetwater Branch is channelized over its entire length, preventing water from reaching into the Preserve or Alachua Lake. The District's Purpose in Adopting, and the District's Interpretation of, the Challenged Rules. The District's intent in adopting the Challenge Rules was to reserve water which the District had concluded is required for the protection of fish and wildlife in Paynes Prairie. The District is attempting to carry out its intent by providing in the Reservation Rule that whatever amount of water that may flow through the Camps Canal Culverts by gravity into the Preserve may not be used for other purposes. The District is further attempting to carry out its intent by providing in the Exemption Rule that any amount of water that has been reserved by the District because it is required for the protection of fish and wildlife pursuant to Section 373.223(3), Florida Statutes, exempt from the consumptive use permit process. The Reservation Rule is not intended to reserve a specific quantity of water for the Preserve. Rather, the Reservation Rule reserves only that amount of water that flows through the Camps Canal Culverts by force of gravity. The intent is to allow the natural existing hydrologic regime of the Preserve to continue. The quantity of the water reserved by the Reservation Rule is identified, in part, as follows: The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added]. The last sentence of the Reservation Rule goes on to prove: This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. This portion of the Reservation Rule was not included by the District to establish a minimum and/or maximum quantity of water that is being reserved for the protection of fish and wildlife in the Preserve. This portion of the Reservation Rule represents a very condensed summary of the historical hydrologic data relied upon by the District in deciding to reserve water for the Preserve's fish and wildlife. The Exemption Rule was intended to make clear that any time the District reserves water which it determines is required to protect fish and wildlife or the public safety, that no consumptive use permit is necessary. The District's Determination that Water is Necessary for the Protection of Fish and Wildlife in Paynes Prairie. In reaching its decision that the quantity of water flowing through the Camps Canal Culverts by force of gravity into the Preserve is required for the protection of the fish and wildlife of the Preserve, the District relied upon a study of the Orange Creek Basin which District staff had begun in the 1980s. There were three objectives for the Orange Creek Basin study: (a) the first objective of the study was to develop a predictive hydrologic model that could be used to predict water levels throughout the basin and the water courses that connect the various major lakes and prairie systems; (b) the second objective of the Orange Creek Basin study was to develop environmental and hydrologic criteria that could be used to evaluate the environmental impacts of different water management alternatives in the basin; and (c) the third objective was to look at alternatives for management of water within the District. Substantial evidence concerning the manner in which the Orange Creek Basin study was conducted, the results of the study and the rationale for the District's conclusion that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was presented during the final hearing of this case by the District. The evidence presented by the District to support a finding that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was not rebutted by competent subs by the Petitioners. The only witness called by the Petitioners was an expert in hydrology. The Petitioners' expert only suggested that he had questions about the District's hydrologic study. He was unable, however, to testify that the hydrologic study relied on by the District was unreasonable or inaccurate. The Petitioners also offered no evidence to counter the testimony of the District's expert on the environment of Paynes Prairie. The testimony of the District's expert proved that, even without the results of the hydrologic study conducted by the District, the evidence concerning the Preserve's environment supports a finding that the water reserved by the Reservation Rule is required for the protection of fish and wildlife. Generally, the evidence proved that, if the water being reserved is not continued to allow to flow naturally into the Preserve, the range of water fluctuations and the resulting natural impact of the environment of the Preserve will not be achieved. There exists in the Preserve currently, a range of plant communities and fish and wildlife. The nature of those communities, fish and wildlife depends on the amount of water in the communities. The communities range from those existing in upland areas, which have the lowest levels of water, down to deep marshes, where water levels are the greatest. In between are emergent marsh (also called "shallow marsh"), cypress swamps, mixed scrub-shrub wetland, wet prairie, old field, hudric forest, mesic forest and xeric community. The various types of communities are in a state of fluctuation depending on the levels of water flowing into the Preserve. The evidence presented by the District, and was uncontroverted by the Petitioners, proved that these fluctuations are environmentally desirable; that natural fluctuations of water levels in the Preserve are required for the protection of fish and wildlife. It is for this reason, therefore, that the District decided to reserve the amount of water flowing by gravity through the Camps Canal Culverts, and not some specified volume. The Rationale for the District's Finding that Water is Required for the Protection of Fish and Wildlife. Although the District and some of the Intervenors have proposed several findings of fact that support the ultimate finding of fact that the water reserved by the Reservation Rule is required to protect fish and wildlife. Those findings of fact are subordinate to the ultimate relevant fact in this case. Therefore, rather than rewrite all of those subordinate facts, the District's subordinate findings of fact (which cover those subordinate findings suggested by the Intervenors) will be quoted and adopted in this Final Order. The findings of fact of the District quoted and adopted herein which relate to the hydrologic portion of the District's study are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 44 through 74: Surface water hydrologic models are a tool used by water resource professionals to enable them to simulate or calculate certain characteristics of a hydrologic system from data that relates to or is collected from within that system. T. 65, 66, 90, 91, 779. In this basin, the staff of the District developed a surface water model in order to calculate anticipated water levels and discharge volumes at various points throughout the basin expected to be associated with several alternative water management strategies. T. 90, 91, SJ Ex 1 p 27. The specific model used by the District is the Streamflow Synthesis and Reservoir Regulation (SSARR) mathematical model, developed by the U.S. Army Corps of Engineers. This particular model is generally accepted and used in the field of hydrology for the purposes for which it was used here by the District staff. T. 90, 91, SJ Ex 1 p 27. The model combines two types of data, the first of which are "fixed basin parameters" such as drainage area, soil moisture run-off relationships, and storage capacity of the water bodies in the basin. Fixed basin parameters do not change over time. T. 98, 99, SJ Ex 1 pp 32-37. The second type of data used by the model is "time series" data such as rainfall, evaporation, lake elevations and discharges at several points throughout the basin. Time series data does change over time. T. 98, 99, SJ Ex 1 pp 38-40. Rainfall data for the basin is the most important input element for the model because rainfall drives the system from a hydrologic perspective. T. 95. Rainfall data from 5 recording stations scattered over the basin were utilized, with one station located at the University of Florida in Gainesville yielding data for more than 50 years, although only data for the 50 year period from 1942-1991 was used in the model. T. 96, 97, SJ Ex 1 pp 38, 39, 62, 175. The other 4 rainfall recording stations used in the model have recorded rainfall for periods ranging from 11 years to 37 years. SJ Ex 1 p 39. In a basin the size of the Orange Creek Basin, day to day rainfall amounts may vary from one recording station to another, however, on an annualized basis, rainfall amounts are relatively consistent between the rainfall recording stations utilized in the District's model. T. 97, 98, 184, 727. Both the number and location of rainfall recording stations used for the model are adequate to characterize rainfall for the basin. T. 97, 98, 184. Fifty years of hydrologic data were utilized by the District in the model, because corresponding records existed for rainfall, lake levels, and discharge for this period of time. In addition, a 50 year period is more likely to exhibit a full range of hydrologic conditions, such as droughts and floods, than a shorter increment of time would. T. 104. The model utilizes both the fixed basin parameters and the time series data to calculate an associated lake level for any of the lakes in the basin or a discharge measurement at one of several points in the basin for any particular day during the 50 year period represented by the hydrologic data on which the model is based. T. 98-100. The model was initially run to calculate several hydrologic values with existing conditions in place. Existing conditions, for purposes of comparison with other alternatives, assumes the Newnans Lake weir to be in place, the gates to the Camps Canal Culverts to be in an open position and the gates to the main structure Culverts in the Preserve to be in an open position. T. 99, SJ Ex 1 p 83. For all scenarios examined, the model assumes existing land uses to be in place, in all years simulated, in order to allow consistent comparisons of hydrologic conditions over the 50 years for which data was available. T. 134, 135. In the "existing conditions" scenario the model calculates the volume of water discharging from Newnans Lake southward into Prairie Creek for each day during the 50 year period from 1942-1991. T. 100. Discharge measurements were made by District staff at the downstream end of the Camps Canal Culverts from which a rating curve was developed for the structure. T. 101, 102, SJ Ex 1 pp 33, 36. A rating curve is a means by which the flow capacity of a water control structure such as a culvert may be calculated. T. 101, 102. Using the rating curve developed by District staff for the Camps Canal Culverts, the model, having calculated the volume of water moving from Newnans Lake into Prairie Creek, can then calculate the volume of water passing through the Culverts at the Camps Canal Culverts into the Preserve versus the volume moving on southward through Camps Canal to Orange Lake for each day or year during the 50 year period from 1942-1991. T. 101, 102, SJ Ex 1 p 84, Appendix Table E-45. Having calculated the annual volume of surface water entering the Preserve and the annual volume moving into and through Camps Canal to Orange Lake for each of the 50 years between 1942- 1991, District staff then divided the 50 year totals for each by 50 to arrive at a yearly average volume of water going to the Preserve versus a yearly average volume going through Camps Canal to Orange Lake, under existing conditions. T. 101-104, SJ Ex 1 p 84, Appendix Table E-45. Based on the volumes calculated for the 50 year period between 1942-1991, on average, 45 percent of Prairie Creek flow enters Preserve through the Camps Canal Culverts under existing conditions. This equates to 35 cubic feet per second (cfs), or 23 million gallons per day (mgd). T. 103, 605, 606, SJ Ex 1 p 84, Appendix Table E-45. Also based on the volumes calculated for the 50 year period between 1942-1991, on average, 55 percent of Prairie Creek flow goes into Camps Canal and moves on southward to the River Styx and then to Orange Lake under existing conditions. T. 103, SJ Ex 1 Appendix Table E-45. Making a calculation of flow based on 50 years of historic hydrologic data does not guarantee that the next 50 years will be identical to the period during which the calculation was developed, however, it is reasonable to assume that the next 50 years will be statistically similar to the previous 50 years and that hydrologic conditions, on average, will be the same. T. 104, 143. Both the general methodology and the specific model used by the District to quantify the average volume of flow entering the Preserve under existing conditions, which also represents the volume of flow which the rule would reserve for fish and wildlife which use the Preserve, are based on logic and accepted scientific principles. T. 90, 91, 97, 102, 128, 729. The rule in issue does not reserve a specific amount of water for the protection of fish and wildlife using the Preserve, rather, it reserves the amount which will flow by gravity through the existing Camps Canal Culverts with the gates in an open position, which will in essence, maintain the existing volume of flow into the Preserve. T. 604, 605, 624. Thirty-five cfs does not necessarily represent the specific volume of water that will flow into Preserve on a given day, rather, the specific volume would be dependent on hydrologic conditions on that given day. T. 105, 106. Nevertheless, 45 percent of flow, or 35 cfs, or 23 mgd, represents a reasonably accurate calculation, based on the data available, of the average volume of Prairie Creek flow which will enter the Preserve by gravity pursuant to the Reservation Rule. T. 101- 104, 638, SJ Ex 1. With the existing conditions hydrologic regime which the Reservation Rule would continue in place, the model calculates that the mean elevation of Orange Lake would be 57.26 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). If no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the model calculates the mean elevation of Orange Lake to be 57.51 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). Thus, the mean elevation of Orange Lake rises by only 0.25 feet when all of the Prairie Creek flow is diverted to Orange Lake. SJ Ex 8. The impact of a 0.25 feet change in the mean elevation of Orange Lake from a hydrologic perspective is small given the 11 feet fluctuation in elevations that has occurred naturally over time in the lake. T. 125. By contrast, if no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the mean elevation of water levels within the Preserve, as calculated by the model, would decline by 0.65 feet. SJ Ex 7. Eliminating all Prairie Creek flow from the Preserve would decrease the amount of wetted acreage in the central portion of the prairie by up to 2400 acres. T. 203, SJ Ex 1 p 131, SJ Ex 6. In addition, the acreage wetted in the eastern lobe of the Preserve by the sheetflow of Prairie Creek water as it moves from the Camps Canal Culverts to Alachua Lake would also be eliminated. T. 116, SJ Ex 1 p 131. The findings of fact of the District quoted and adopted herein which relate to the environment of, and the alternative course of action considered for, the Preserve are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 79 through 127: The eastern and western lobes of the Preserve are approximately the same elevation and have similar gradients; however, the plant communities within the eastern lobe differ from the plant communities in the western lobe. The plant community within the eastern lobe is predominantly a shallow marsh community while the plant community within the western lobe varies from wet prairie to old field. T. 262, 263; SJ Exs 3, 10B, 10H. For the western lobe of the Preserve, consisting of the area west of U.S. Highway 441, rainfall is the only source of water except when extremely high water levels occur in Alachua Lake. T. 263, 272. When extremely high water levels occur on Alachua Lake water can backflow through the culverts under U.S. Highway 441 and Interstate Highway 75 and inundate the western lobe. T. 272. The eastern lobe of the Preserve is dependent upon sheetflow from Prairie Creek for its source of water. T. 263. Prior to the construction of Cones Levee the sheetflow from Prairie Creek inundated approximately 1,200 acres of the eastern lobe. Today, however, sheetflow inundates directly 600 acres and indirectly another 600 acres in the eastern lobe. T. 264, 265; SJ Ex 10B. Without the Prairie Creek sheetflow, the biological character of the eastern lobe would change to resemble the more terrestrial nature of the western lobe. T. 263, 272, 518. The fish and wildlife inhabiting the Preserve are totally dependent upon its surface water hydrology. T. 276. Of the 21 species of plants living within the Preserve that are listed by the federal government or the State of Florida as endangered, threatened or species of special concern, four species are wetland species. T. 268, 358, 359, 360. Twenty species of animals living on the Preserve are listed by the federal government or the State of Florida as endangered, threatened or species of special concern. Seventeen of these species are wetland dependent. T. 269. Birds, including a number of species listed as endangered or threatened such as great blue herons, woodstorks, anhingas, limpkins, sandhill cranes and ospreys, use the shrub communities around Alachua Lake, the cypress swamp in the eastern lobe and other areas of the eastern lobe for breeding, nesting, and foraging. T. 269, 270, 271, 277, 364, 365. Several species of migratory ducks overwinter in the central area of the Preserve, particularly in the shrub wetland communities around Alachua Lake. Without the flow of water from Prairie Creek the open water in Alachua Lake would be lost and consequently, the overwintering habitat for the ducks would be lost. T. 240, 270, 518. Immature bald eagles use the eastern lobe wetlands for foraging. T. 270. Additionally, the northern harrier, American kestrel and peragrine falcon use wetlands within the Preserve as foraging habitat. T. 364, 365. Mammals, such as river otters, brown water rat, bobcats, bats and long-tailed weasels, use the wetlands within the Preserve, and the eastern lobe particularly, as breeding, nesting, and/or foraging habitat. Reptiles, such as the American alligator, live in the Preserve. T. 270-271, 375, 377-378; SJ Ex 14. The diversity and abundance of animals living in or using the Preserve is greater in the eastern lobe and central area than the western lobe. T. 273, 274. Different species of birds frequent the western lobe. Typically, species more indicative of a drier terrestrial environment are found in the western lobe. T. 272. If the Prairie Creek flow is diverted from the Preserve, the eastern lobe would be driven towards a drier, terrestrial habitat and the functions of the eastern lobe wetlands would be totally lost. T. 277. The sheetflow across the eastern lobe is a unique feature of the Preserve, and without this sheetflow animals such as the endangered brown water rat would not live there. T. 277. Without the Prairie Creek sheetflow, animals dependent on Alachua Lake and the wetlands, such as the brown water rat and the woodstork, would have to find other areas to live, forage, breed and nest due to the loss of wetlands and open water habitat. T. 277, 518. When the water levels in the Preserve are low and wetlands are lost, the birds that depend on the wetlands for nesting will not nest in the Preserve nor elsewhere. T. 532. The wetland communities within the Preserve require a range of water level fluctuations which includes periods of high water levels, average water levels and low water levels. Wetlands must remain wet long enough to exclude upland plants and to conserve hydric soils, yet sufficiently dry often enough to allow germination of wetland plants and the compaction and oxidation of flocculent sediments. T. 293, 294, 298, 299, 310, 311; SJ Ex 1 pp. 23-25. Periods of high water levels maintain lower swamp and shallow marsh habitats, facilitate the dispersal of the seeds of wetland plants, allow wetland species that normally occur at lower elevations to move up into the forested communities, prevent the encroachment of upland species into the upper wetland area, and advance the transportation of organic matter from uplands to wetlands. Inundation of the floodplain and forested communities provide nesting, spawning, refugia, and foraging habitat for fish and other aquatic organisms. T. 294, 296, 310, 311; SJ Ex 1 pp 23- 25. The frequency, timing and duration of high water levels influence the composition and survival of wetland forests. T. 310, 311; SJ Ex 1 p 23. Periods of average water levels create and maintain organic soils and maintain wetland habitat for wetland dependent wildlife. T. 293, 297; SJ Ex 1 p 25. Periods of low water levels rejuvenate floodplain wetlands by allowing seed germination and growth of wetland plants. Seeds of many wetland plant species require saturated soils without standing water in order to germinate. T. 291, 293, 298, 299; SJ Ex 1 pp 24, 25. Periods of low water levels increase the rate of aerobic microbial breakdown and decomposition of organic sediments, and allows the consolidation and compaction of flocculent organic sediments. The consolidation, compaction and decomposition of flocculent organic sediments improves substrates for fish nesting and seed germination. T. 298, 299; SJ Ex 1 pp 24-25. Upland animals use the wetlands during periods of low water levels for foraging and breeding. T. 298, 299. Three elevation transects were used by District staff to identify the elevations of plant communities on the Preserve and develop environmental criteria for the Preserve floodplain. T. 302, 305-306; SJ Ex 1 pp 26, 27, 31, 60. Ecological criteria were developed by District staff to accommodate the hydroperiod requirements of lake and wetland biota. The ecological criteria consisted of hydrologic duration, i.e. how long an area is flooded; and recurrence intervals, i.e. how often an area is flooded. T. 304, 309; SJ Ex 1 pp 23, 61. Maintaining appropriate hydrologic durations and recurrence intervals for plant communities enables the plant communities to support populations of fish and wildlife. T. 307, 312. The District identified the following five significant water management levels: infrequent high water level, frequent high water level, minimum average water level, frequent low water level, and infrequent low water level. The water management levels characterize zones along the elevation gradient of the Preserve. T. 307, 308; SJ Ex 1 p 61. The five different recurrence intervals and the associated hydrologic durations became the hydrologic criteria used by District staff for the water management levels. T. 312. The District evaluated six water management alternatives for the Preserve: the "existing conditions" alternative which simulated the current morphometry of the Paynes Prairie sub-basin; the "total restoration" alternative, under which all the Prairie Creek flow is restored to Paynes Prairie; the "50/50 management" alternative, under which the inflow capacity at the Camps Canal Culvert is reduced by 50 percent and the outflow capacity at the main structure at Alachua Lake is reduced by 50 percent; the "elevation threshold" alternative, under which when the water level at Newnans lake is at 66 feet NGVD or above and the water level at Orange Lake is at 56 feet NGVD or below, then the inflow structure at Camps Canal Culvert is reduced by 50 percent while the outflow capacity at the main structure is maintained at 100 percent; the "Sweetwater Branch" alternative, under which flow from Prairie Creek is replaced by Sweetwater Branch flow; and the "no restoration" alternative, under which the entire flow from Prairie Creek is diverted to Orange Lake. T. 313, 314; SJ Ex 1 p 119. Based upon the hydrologic durations and recurrence intervals defined by the ecologic criteria, the District determined five water management levels for each water management alternative. SJ Ex 1 p 61. The five water management levels and the associated recurrence intervals and hydrologic durations form a fluctuation management regime. The fluctuation management regime for each water management alternative was evaluated with respect to the existing biological features of the aquatic and wetland communities of the Paynes Prairie sub-basin. SJ Ex 1 pp 61, 124, 125. Under the total restoration alternative the water levels on the Preserve would rise thereby improving the hydrologic regime on the prairie, but the possibility of flooding and damaging U.S. Highway 441 would also increase. The minimum average water level of Orange Lake would decrease by 0.67 feet. T. 331, 333; SJ Ex 1 pp 125-130; SJ Ex 8. The no restoration alternative would not satisfy all the hydrologic criteria. The minimum average water level on the Preserve would decrease by 1.01 feet under this alternative. Under this alternative the acreage inundated by the minimum average water level is reduced by approximately 2,400 acres. Additional wetland acres are lost due to the absence of the Prairie Creek sheetflow across the eastern lobe. The minimum average water level in Orange Lake would increase by 0.16 of a foot. T. 324, 334-336; SJ Ex 1 pp 124, 125, 131; SJ Ex 8. Eliminating the flow of Prairie Creek into Paynes Prairie would be detrimental to the current and future biological conditions on the Preserve. SJ Ex 1 p 131. Under the 50/50 management alternative the average flow from Prairie Creek would be reduced from 45 percent to 22.5 percent and the outflow to Alachua Sink would be reduced by 26 percent. T. 337; SJ Ex 1 p 131. The high water levels and the low water levels increase slightly within the Preserve and Orange Lake under the 50/50 management alternative; however, the residence time of water and the concentration of nutrients, including phosphorous and nitrogen, would increase thereby degrading water quality within the Preserve. T. 338, 340, 341; SJ Ex 1 pp 124, 125, 127, 128, 131, 132; SJ Exs 7 and 8. The reduction of sheetflow from Prairie Creek under the 50/50 management alternative would adversely affect the wetlands in the eastern lobe. SJ Ex 1 p 132. Under the elevation threshold management alternative water levels within the Preserve would decrease. The Preserve would receive less water during some periods of naturally high flows reducing the duration and frequency of inundation in the eastern lobe wetlands and, therefore, negatively impacting wildlife dependent upon seasonal high flows. T. 344; SJ Ex 1 p 133; SJ Ex 7. The flow provided by Sweetwater Branch provides approximately 15 percent of the Preserve's average inflow, whereas Prairie Creek provides approximately 50 percent of the Preserve's average inflow. T. 346. Sweetwater Branch is more or less confined to a channel and discharges into Alachua Sink bypassing the Preserve and its eastern lobe. T. 347. Under the Sweetwater Branch alternative the eastern lobe would be deprived of the sheetflow essential to the maintenance of wetlands and the wildlife in the eastern lobe. The eastern lobe would dry out and the plant communities would change to old field or wet prairie. The functions of the plant communities to wildlife would also change under this alternative. T. 347. The Sweetwater Branch alternative would not support fish and wildlife in the eastern lobe of the Preserve. T. 347. The water quality of Sweetwater Branch is poor. Sweetwater Branch has higher concentrations of nitrogen and phosphorous than Prairie Creek. If the nutrient-rich Sweetwater Branch water was diverted onto the Preserve the types and abundances of vegetative communities would change from native vegetation to monocultures of nuisance vegetation that thrive in nutrient-rich environments. T. 346-349; SJ Ex 1 pp 133-134. The existing conditions alternative provides over the long term an average of approximately 45 percent of the Prairie Creek flow by gravity flow through the Camps Canal Culvert to the Preserve. T. 355, 356; SJ Ex 1 p 121. Under the existing conditions alternative, the five hydrologic criteria for both the Preserve and Orange Lake are met and the water level elevations meet the desired recurrence intervals and hydrologic durations. T. 324, 350, 351. The fluctuation management regime provided by the existing conditions alternative partially restores sheetflow from Prairie Creek to the Preserve in sufficient, but fluctuating, water quantities necessary to maintain habitat for fish and wildlife within the eastern lobe. T. 350, 351. It is essential for the protection of the fish and wildlife that utilize and depend upon the Preserve to maintain the flow of Prairie Creek into the Preserve. T. 351, 517. The Preserve needs flow from Prairie Creek in volumes reserved by the proposed rule to protect its fish and wildlife. T. 351. The management levels established by the environmental criteria used for each of the water bodies in the basin will continue to be met in Orange Lake with an average of 45 percent of Prairie Creek flow going to the Preserve and 55 percent going to Orange Lake. T. 432, SJ Ex 1 pp 127, 134, 146. Based upon the substantial and uncontroverted evidence in this case, it is concluded that the water reserved by the Reservation Rule is required for the protection of fish and wildlife of the Preserve.
