Findings Of Fact Occidental owns land or mineral rights to land over a broad area adjacent to the Suwannee River near Lake City and White Springs in Hamilton County, Florida. Occidental has invested approximately $350 million in the area, and presently has two phosphate mines and two chemical plants in operation. Occidental intends to expand its mining operations into an area known as the "Roaring Creek Basin." Occidental has estimated that two and one- half million tons of phosphate are available to be mined in the area with a market value of $25.00 per ton. The company's present timetable would be to commence mining operations in the Roaring Creek Basin by midsummer, 1980. The mining operations would require dredging and filling activities. 1/ The Roaring Creek Basin is a small portion of the Suwannee River Basin. The area of Occidental's mining operation is fairly unique within the Suwannee River Basin. It has been characterized as a relatively high, flat plateau region. The Suwannee River flows in this area through a limestone channel, which is a cut in an older, broader riverbed or flood plane. Roaring Creek and other tributaries of the Suwannee River in the area flow through incisions which have been cut into the plateau area. The incisions become fairly steep in lower areas of the tributaries in close proximity to the Suwannee River. In the upper areas, the incisions are not particularly steep. Limestone beds underlie the area. Sandy clay beds which interbed with the limestone formations lie on top of the limestone beds and are covered by surficial sand beds. The surficial sands are relatively permeable, while the sandy clay beds are relatively less permeable. Rainfall in the area, therefore, typically permeates through the surficial sands and forms an aquifer above the sandy clay layers. This aquifer provides additional water to streams flowing through incisions which have cut into the sandy clay layers. Sources of water for such tributaries are rainfall and the aquifer above the sandy clay layers. There are lower aquifers which could serve as potential sources of water in the tributaries but do not because geologic conditions are not sufficient to force these waters to the surface. 2/ Viewed as a single stream, Roaring Creek has its initial source at a "bayhead" or "cypress swamp" which is located approximately four and one-half to five miles upgradient from the Suwannee River. Prior to the excavation of a channel which occurred sometime during the early 1960's, water flowed from the bayhead through a small incision which does not cut through the surficial sand layers until it reaches a point approximately 2.5 miles upgradient from the Suwannee River. An excavation has been cut through the original meandering streambed from the bayhead to approximately the point where the creekbed cuts into the lower strata. In various places, water from the natural bed flows into the excavation, while in other places, water in the original streambed has been cut off from the excavation by debris. During periods of heavy rainfall, waters in the bayhead rise and flow through the original streambed and the excavated channel to the lower areas of Roaring Creek. The bayhead collects rainwater from surrounding areas and drains fairly slowly in response to rainfall. During dry periods, water does not flow from the bayhead to the lower areas of the creek; however, normally there will be standing water in portions of the original streambed and in portions of the excavation even during drier times. The evidence offered in this proceeding would not support a finding as to the portion of time that water flows all of the way from the bayhead to the lower regions of Roaring Creek. Rainfall is the only source of water for the bayhead and the upper area of Roaring Creek, and the upper area contains water flows throughout its length solely in response to the rainfall. 3/ At a point approximately 2.5 miles upgradient from the Suwannee River, the incision or channel cut by Roaring Creek extends down into the sandy clay layers below the surficial sands. At that point, ground water, which is easily transmitted through the surficial clays, forms an aquifer above the sandy clay layers and seeps rather constantly into Roaring Creek. The point is a short distance upgradient from a road known as "Burned Bridge Road". Roaring Creek flows during all but the very driest periods from that point until its waters reach the Suwannee River. This point, which has been called the "point of intermittency", was placed at slightly different locations by various witnesses, depending upon the sort of analysis that was used. The conclusion that has been found most credible is that presented by Phillip E. LaMoreaux. Dr. LaMoreaux found the point of intermittency to be a short distance upgradient from Burned Bridge Road, approximately 2.46 miles from the mouth of Roaring Creek at the Suwannee River. The point is depicted with precision on Occidental Exhibit 19A. The UTM coordinants of the point are 3367025N336650E. 4/ Downstream from the point of intermittency, Roaring Creek cuts deeper and deeper into the sandy clay strata. It receives waters from several tributaries and form seepage of ground water which occurs throughout this lower portion of Roaring Creek, ultimately cuts into the limestone beds and earns its name as it forms two waterfalls near its mouth at the Suwannee River. 5/ Within and immediately adjacent to the streambed upgradient from the point of intermittency, the dominant vegetation is vegetation which is included in DER's list of freshwater submerged land indicator species. Rules of the Department of Environmental Regulation, Section 17-4.02(17), Florida Administrative Code. The predominant vegetational species are pond cypress (Taxodium Ascendens) and black gum trees (Nyssa Biflora). Within the streambed itself, there are no upland indicator species. Within the excavated channel that has been cut through the natural streambed above the point of intermittency, the predominant vegetation is Maiden Cane (Panicum Hemitomon). Within the bayhead or cypress swamp which is circled on DER Exhibit 8, and is designated with the initials "JK", the dominant vegetation is pond cypress and black gum. The dominance of wetland indicator species which occurs within and directly adjacent to the streambed and the excavated channel does not extend laterally to any great extent. While wetland indicator species will occur sporadically outward from the channels, upland indicator species begin to predominate in all but the areas immediately adjacent to the channels. This reflects the fact that the upper portions of Roaring Creek are in a high upland plateau region. Any effort to determine dominant vegetation outward from the confines of the stream channels would result in a bias in favor of upland species. Within the streambed, there are no small cypress seedlings. This reflects that the streambed has not been dry for any prolonged period of time so as to permit the germination of cypress trees. There are also no hardwood or upland indicator species within the streambed, which reinforces the conclusion that the streambed even above the point of intermittency does not remain dry for long periods of time. 6/ There are several Roaring Creek tributaries where the extent of DER's jurisdiction is at issue. One tributary flows not Roaring Creek from the south and meets the creek at a point upgradient from the point designated "RO-1" on DER Exhibit 8 and on Occidental Exhibit 8. This tributary is outlined with black lines on DER Exhibit 8 and with red lines on Occidental Exhibit 8. The parties agree that DER has jurisdiction over it. A tributary of this tributary is bordered in red on DER Exhibit 8 and in yellow in Occidental Exhibit 8. Very little testimony was elicited with respect to this tributary of the Roaring Creek tributary. It appears that it flows only in response to rainfall events, but the evidence is insufficient to establish whether it normally contains contiguous areas of standing water. Another tributary over which there is a dispute flows into Roaring Creek from the northwest and meets the creek at a point almost halfway between the points "RO-1" and "RO-2", as depicted on DER Exhibit 8 and Occidental Exhibit 8. A portion of this tributary is outlined in black and a portion in green on DER Exhibit 8. Only a portion of it is outlined on Occidental Exhibit The portion of it outlined on Occidental Exhibit 8, and in black on DER Exhibit 8, is below the point of intermittency. The portion outlined in green on DER Exhibit 8 is above the point of intermittency. There is an identifiable streambed above the point of intermittency which connects several cypress swamps. Wetland indicator species (pond cypress and black gum) constitute the dominant vegetation within the cypress swamps and within and directly adjacent to the identifiable streambed. The portion above the point of intermittency flows only in response to rainfall. The evidence would not support any finding with respect to whether it normally contains contiguous areas of standing water. The final testimony over which jurisdiction is disputed enters Roaring Creek from the south, just upgradient from the point designated "RO-4" on DER Exhibit 8 and Occidental Exhibit 8. This tributary is outlined in red on DER Exhibit 8 and in yellow in Occidental Exhibit 8. An identifiable streambed connects the cypress swamp at the head of this tributary with the upper portion of the Roaring Creek channel. Wetland indicator species (pond cypress and black gum) predominate within and directly adjacent to the channel, and within the cypress swamp. It appears that water flows from the cypress swamp to the upper channel of Roaring Creek only in response to rainfall. The evidence would not support any finding as to whether the cypress swamp and streambed of this tributary normally contain contiguous areas of standing water. 7/
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Department of Environmental Regulation finding that the Department has jurisdiction over those portions of Roaring Creek described in Paragraph 5 of the Conclusions of Law set out herein. DONE and ENTERED this 23rd day of May, 1980, at Tallahassee, Florida. G. STEVEN PFEIFFER, 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 23rd day of May, 1980.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980. COPIES FURNISHED: William A. Harmening Stanley, Harmening and Lovett Post Office Box 1706 Orlando, Florida 32802 Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 David M. Antoniak 1121 Hardman Drive Orlando, Florida 32806 Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
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 fee 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 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 proved: 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 anytime 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 exist 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 of 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 filed, hudric forest, mesic forest and xeric community. The various types of communities are is 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 prosed 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 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.
Findings Of Fact The Petitioner, Bocilla Waterways, Inc., is a corporate entity formed for the purpose of pursuing the subject project and installing the proposed channel. Randall Craig Noden, secretary- treasurer of that corporation, and a director of it, is a realtor who sells and develops property on Don Pedro Island, in the vicinity of the proposed project. He and other officers and directors of the Petitioner corporation have an interest in property on some, but not all, upland areas adjacent to Bocilla Lagoon, Old Bocilla Pass and Kettle Harbor, the water bodies germane to this proceeding. The Respondent, State of Florida, Department of Environmental Regulation, is a state agency charged with regulating dredge and fill projects in state waters and navigable waters pursuant to Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code. The Intervenor, Environmental Confederation of Southwest Florida (ECOSWF), is an incorporated, not-for-profit organization whose membership includes numerous environmentally concerned public interest organizations or associations located throughout southwest Florida. Members of the Intervenor use Old Bocilla Pass, Kettle Harbor, Bocilla Lagoon and Lemon Bay, an adjacent contiguous water body, for boating, swimming, fishing (both recreational and commercial), and collecting shellfish. Some of the membership of the Intervenor live in the immediate area of the proposed project. Project Description The Petitioner submitted a dredge and fill permit application to the Respondent, DER, proposing excavation of an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide, 450 feet long and dredged to a depth of -5.0 feet mean low water, with 2:1 side slopes grading to 3:1 at approximately +0.5 feet NGVD. The channel below mean high water would be 70 feet wide' and 670 feet long to a depth of -5.0 feet mean low water, with 2:1 side slopes. A rip-rap strip five feet wide would be placed in the littoral zone on either side of the channel. As originally proposed, the channel excavation would be performed by dragline and clamshell with spoil placed upon uplands for disposal. The excavation would progress from the west side of the project to the east, with plugs remaining at the eastern terminus of the channel until it stabilizes and the rip- rap is placed along the excavated channel. A turbidity curtain is proposed to be used to maintain water quality above state standards regarding turbidity. The applicant originally proposed to transplant seagrasses, displaced in the excavation process, back into the bottom of the excavated channel. Earthen slopes above mean high water would be vegetated in order to achieve stabilization. Some of these proposals were modified after negotiations with DER staff, such that the seagrass transplanting portion of the project would be accomplished in surrounding areas of the water bottom of Bocilla Lagoon and Kettle Harbor, specifically, bare areas and otherwise degrassed, vegetated flats. The applicant also proposes to install navigation aides in Bocilla Lagoon and Kettle Harbor in order to help maintain boat traffic in the channel, and to facilitate ingress and egress through the proposed channel. Don Pedro Island is a barrier island lying off the coast of Charlotte County, Florida. The only access to the island is by boat or helicopter. Bocilla proposes to excavate the proposed channel in order to, in part, provide better navigational access to Bocilla Lagoon which lies within Don Pedro Island. There is presently a navigational channel in the Bocilla Lagoon through what is called "Old Bocilla Pass," located at the north end of Bocilla Lagoon and communicating with Lemon Bay. Bocilla contends that the channel is somewhat tortuous and subject to shoaling, with concomitant grassbed damage by boat propellers, and that thus, a better navigational access in the form of a shorter, deeper, more direct channel from the southern end of Bocilla Lagoon to Kettle Harbor is required. The project would involve the removal of approximately .18 acres of mangroves (red and black mangroves) and .187 acres of seagrasses. Bocilla has proposed to mitigate the damage involved in the mangrove and seagrass removal by replanting mangroves, on three foot centers, along both sides of the proposed channel, and replanting or transplanting seagrasses in bare areas of Kettle Harbor, near the proposed project. Description of Pertinent State Waters Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass are designated as Class II, navigable waters of the state and are designated for shellfish propagation or harvesting. Shellfish, including clams and oysters, occur in Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass. As demonstrated by Intervenor's witnesses Wade, Cole and Wysocki, shellfish are harvestable and harvested in Bocilla Lagoon and Kettle Harbor at the present time. Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass have also been conditionally approved by DNR for shellfish harvesting. DNR approves or prohibits waters for shellfish harvesting, and as a matter of policy generally prohibits shellfish harvesting in manmade "dead-end" canals. A "conditionally approved" water body, such as those involved herein, is an area approved for shellfish harvesting, but one which is more likely to be affected by pollution events. Thus, they are monitored more closely by DNR. Such events as additional residential development in an area, resulting in more septic tank sewage discharge, on-board toilet discharges from boats or the installation of a water and sewer treatment plant, can result in DNR temporarily or permanently closing a conditionally approved area to shellfish harvesting. Natural phenomenon such as the influx of red tide is also a factor which is considered by DNR in electing to classify a shellfish harvesting area as conditionally approved, and in electing to prohibit shellfish harvesting in an area. It was established through testimony of witnesses Feinstein and Setchfield of DER that long-standing DER policy provides that when DNR conditionally approves waters as being shellfish harvestable, that means they are "approved" for all shellfish harvesting purposes, but simply subjected to closer monitoring and with an increased likelihood of closure due to immediate pollution events. Therefore, the prohibition in Rule 17- 4.28(8)(a), Florida Administrative Code, prohibits issuance of dredge and fill permits in areas approved for shellfish harvesting or "conditionally" approved, since there is no difference in the "shellfish harvestable" nature of the waters until a closure occurs, which may simply occur sooner in conditionally approved waters. Bocilla Lagoon and Kettle Harbor are both naturally- formed water bodies, although some dredging has been allowed to occur in them in the past. They are not manmade, "dead-end" canals. Neither water body has the physical or biological characteristics of a "typical dead-end canal". Both are quite high quality habitats for the natural flora and fauna occurring in the marine environment in that area, and thus the general policy of DNR established by witnesses Cantrell, Fry, Feinstein and Sperling which prohibits shellfish harvesting in manmade, dead-end canals, does not apply to Bocilla Lagoon and Kettle Harbor. The water quality in both bodies of water is good and within DER standards generally. At times however, the water quality in Kettle Harbor suffers from a failure to meet DER dissolved oxygen standards contained in Chapter 17-3, Florida Administrative Code. Indeed, the water quality in Bocilla Lagoon is generally somewhat better than the water quality in Kettle Harbor. Environmental Impacts The project as currently proposed would result in the removal of approximately .18 acres of mangroves and .18 acres of seagrasses. Seagrasses and mangroves are important in providing areas of cover, food, and habitat for various estuarine species. Seagrasses serve to stabilize marine soils resulting in a decrease of suspended solids in contiguous waters with resulting decrease in turbidity in those waters. The loss of seagrasses can result in de- stabilization of the bottom sediment, such that suspended solids or turbidity increases in involved waters, which can result in decreased light penetration to the vegetated bottoms. Decreased light penetration, if of a sufficient degree, can result in the further loss of seagrasses and other bottom flora, causing in turn, increased turbidity and further decreased light penetration, with progressively destructive results to seagrass beds and other marine flora and fauna, with a substantial detrimental effect on the marine biological community in general. Mangroves serve as biological filters, trapping sediments, heavy metals, nutrients and other pollutants, uptaking them through their roots and converting them to usable plant food and thus filtering such harmful elements from state waters and rendering them into environmentally harmless substances. The removal of the mangroves at the proposed channel site will result in a loss of their beneficial effects. These beneficial effects will be absent for a greater period of time than it takes to merely plant replacement mangrove plants, since mature trees will be removed and mangrove seedlings will be replanted in their stead. Maturation of mangroves at this location would take in excess of three years, thus replacement of the beneficial filtering effects of the removed mangroves will take in excess of three years, to which time must be added the time which lapses between the original mangrove removal and the replanting of the seedlings, which would start the maturation period. Bocilla proposes to mitigate the removal of the mangroves by that replanting, as well as to transplant seagrasses removed from the channel site to other nearby areas currently bare of seagrass. Seagrass replanting is not a well-established practice. Compared to mangrove replanting, there is less experience, less information and a lower success ratio historically. Of the hundreds of dredge and fill projects occurring and approved throughout Florida, only three have involved replanting of removed seagrasses. Two of the projects involved the Port of Miami in Dade County and the "New Pass site" in Sarasota County. In both of these cases, seagrass replanting cannot be termed successful. The Port of Miami project resulted in a final survival rate of only twelve per cent of ,the grasses replanted. The New Pass project thus far has resulted in a survival rate of only 39 per cent of the seagrasses replanted, after only nine months. The Petitioner proposes that the replanting be accomplished by Mangrove Systems, Inc. That firm is headed by Robin Lewis, who oversaw the seagrass replanting project at the New Pass area in Sarasota. The location and method of replanting seagrasses at New Pass, as to water depth, type of bottom, type of grass and planting method, was generally similar to that proposed for the Bocilla project. That is, it would be accomplished by "plug planting," of "bald" spots at generally the same latitude and similar water depth. The survival rate at the end of six months at the New Pass project was 73 per cent. The survival rate at the end of nine months was 39 per cent. Mangrove Systems, Inc. and Mr. Lewis acknowledges that it is difficult to attribute the decrease in survival rates and grass shoot densities to any one cause, but that predation and a shift in sediments due to the vagaries of water currents, were probably the chief causes for the decrease in seagrass survival. Mangrove Systems, Inc. and the Petitioner propose a guarantee whereby Mangrove Systems, Inc. would replant more seagrasses, if needed, if a low survival rate occurs, which it defines to mean less than a 70 to 80 per cent survival rate after one or two years. There is no guarantee concerning the survival rate after a second planting, however. It was not established when the survival rate will be measured, in determining whether a 70 to 80 per cent survival is being achieved. In this connection, the central Florida coast where the Bocilla project is proposed, is not as conducive to seagrass growth as other more tropical marine areas, such as in the Florida Keys. In the area of the proposed project, seagrasses do not generally produce a great deal of seed and tend not to grow back very readily, once they are destroyed. Seagrasses in the Florida Keys tend to have, in comparison, much greater seed production and for this and other reasons, tend to reproduce themselves more readily once destroyed. They tend to be more amenable to transplanting in the Florida Keys marine environment. Mangrove Systems, Inc. has conducted a seagrass replanting project in the Florida Keys, however. One-third of the seagrasses planted in that project have not survived after two years. In short, the likelihood of seagrass survival has been insufficiently tested in the geographical area and latitude and in similar soils, water depths and temperatures as those involved in the instant case, such that reasonable assurance of adequate seagrass survival with the replanting project proposed will occur. Hydrographics and Maintenance Dredging The evidence is uncontradicted that the opening of the proposed channel would increase circulation in the southern end of Bocilla Lagoon. Increased circulation tends to have good effects in that it reduces stratification in water bodies. Stratification is a condition which occurs when the deeper waters of a given water body do not interchange with surface waters, but rather stratify or become characterized by layers of differing levels of dissolved oxygen, temperature, pH, etc. Typically, lower levels of a stratified body of water are characterized by low levels of dissolved oxygen. The present water quality of Bocilla Lagoon however, is not characterized by statification in any significant degree. It is very similar in water quality, in terms of dissolved oxygen, temperature, pH and other Chapter 17-3 water criteria, to that water quality of the nearby intra-coastal waterway into which the channel into and through Kettle Harbor would open. The intra-coastal waterway is agreed to be a well- circulated body of water, meeting all current State water quality standards. Accordingly, the opening of the channel and the increased circulation it may cause in the southern end of Bocilla Lagoon would have minimal, positive benefits. The change in circulation and in water current patterns and velocities caused by the opening of the direct, shorter channel from lower Bocilla Lagoon and Kettle Harbor may, negatively affect the present seagrass growth in seagrass beds in Kettle Harbor and Bocilla Lagoon in the vicinity of each end of the proposed channel, due in part to increased current velocities that would result from tidal exchange through the shorter, straight channel which would be opened. The expert witnesses in the area of hydrographics disagreed on the effect of the proposed channel on water circulation in the northern end of Bocilla Lagoon and Old Bocilla Pass, which is the north channel opening into northern Bocilla Lagoon. Witness Sperling for the Department opined that a major reduction in flows through Old Bocilla Pass channel would occur. Witness Tackney for the Petitioner acknowledged there would be some reduction in flow, and witness Olsen opined that a reduction in flow would occur, but there could also be an increase in circulation. Both witnesses Tackney and Olsen, in opining that a flow-through, enhanced circulation and flushing system may result from installing the channel, based that opinion to a significant degree, on their belief on the effects of wind on forcing water through the Pass and Bocilla Lagoon. No wind data or records were adduced however, to show the likely effects of wind on creating the Petitioner's desired "flow-through" system. Witness Sperling disagreed as to the significance of this flow-through effect, but there was no disagreement among the hydrographic experts that reduced flows through Old Bocilla Pass, which all acknowledged can occur to one degree or another, can result in increased sedimentation in Old Bocilla Pass, which can result in turn, in the need for increased maintenance dredging in Bocilla Lagoon and Old Bocilla Pass in the future. Maintenance dredging in Old Bocilla Pass may have to be increased if the proposed channel is constructed. The proposed channel itself will likely have to be periodically maintenance dredged as well. Maintenance dredging can cause environmental problems. Dredging activities result in the loss of marine habitat and the destabilization of marine sediments, with resulting increased turbidity and reduced photic effects, with concomitant detrimental effects on seagrasses and other bottom flora and fauna. Increased turbidity resulting from dredging and destabilization of sediments can directly adversely affect shellfish, including clams and oysters. Dredging impacts and siltation can negatively affect seagrass growth and water quality by increasing turbidity resulting in reduced photosynthesis in seagrass, by smothering the seagrass directly and by silting fauna and vegetation in adjacent productive grassbeds. Persons other than the officers and directors of Bocilla Waterways, Inc. own property and have riparian rights on the Old Bocilla Pass channel. These persons have in the past, and have the right in the future, to use Old Bocilla Pass for navigational purposes and could elect to maintenance dredge Old Bocilla Pass as they have in the past. If the proposed channel is constructed, there is obviously a more direct access and shorter water route between the waters of Bocilla Lagoon and Kettle Harbor. Water quality at times in Kettle Harbor has been worse than that in Bocilla Lagoon, especially in terms of low dissolved oxygen. If poorer water quality exists in Kettle Harbor due to low dissolved oxygen, an influx of red tide or some other cause, the construction of the proposed channel would increase the chance, by the more direct connection and increased flow in the southern end of Bocilla Lagoon, to contaminate the water of Bocilla Lagoon. The Public Interest Public opposition was expressed at the hearing, including that of ECOSWF, the Intervenor, some of whose members include people who live in the area of the proposed channel and use the involved waters. Local fishermen who harvest shellfish and finfish in Bocilla-Lagoon and Kettle Harbor, and use Old Bocilla Pass for navigation between Lemon Bay and Bocilla Lagoon, oppose the project, some of whom are members of the organized Fishermen of Florida, an association of approximately 25,000 members. Residents of Bocilla Lagoon and the immediate area, who habitually navigate Old Bocilla Pass, including local fishermen, have had little trouble navigating Old Bocilla Pass because they are familiar with the channel. Although the Petitioner alleges that the new channel is needed in part for the safety of people living on Bocilla Lagoon to assure quick access to the mainland in case of medical emergencies, the members of the public living on Bocilla Lagoon, (with one exception) and on surrounding areas of the island, do not wish such increased access for medical purposes. The island is presently reached from the mainland by either watercraft or helicopter. Formerly, there was a bridge connecting the island with the mainland which has since been destroyed, and not rebuilt. The residents living on Bocilla Lagoon, either full- time or part-time, buy their homes and choose to live there with knowledge of the present mode of access through Old Bocilla Pass, which is also the means they would achieve access to the mainland in case of medical emergencies or, alternatively, by helicopter transport or by transport over island roads to the ferry landing, with access to the mainland by ferry. The residents, in general, desire to maintain the isolation of life on the island as it presently exists and do not desire enhanced access between the island and the mainland, since part of the charm of having homes and living on the island is its isolation from the more populous mainland. Other than the testimony of Petitioner's witnesses, there was no testimony presented expressing any public need for the proposed channel, as for instance from public officials having knowledge of any medical or public health need for enhanced access to Bocilla Lagoon and the island. The proposed project is contrary to the public interest due to its adverse effects on seagrasses, shellfish, and water quality as delineated above. The adverse effects on seagrasses would result from the dredging itself and the destruction of a portion of the extant seagrass beds, and the resultant likelihood of poor survival rates in the attempted transplanting of seagrass as a replacement for that destroyed by the channel dredging. The proposed project is not in the public interest of those people with riparian rights on Old Bocilla Lagoon and northern Bocilla Lagoon, as there is substantial likelihood the proposed project will reduce flows through Old Bocilla Pass' channel with the resultant increased settling out of sediment and thus increased shoaling of that channel, which would concomitantly increase the need for maintenance dredging in Old Bocilla Lagoon and channel. Additional maintenance dredging and the possible negative effects of such additional dredging on marine, flora and fauna in Bocilla Lagoon and Old Bocilla Pass constitute an additional burden on these riparian owners, the bearing of which is not in their interest. The proposed project is also contrary to the public interest in that the proposed channel is deeper, wider and more direct as an entry into Bocilla Lagoon from Kettle Harbor and Lemon Bay, and would thus allow larger, deeper draft boats to enter Bocilla Lagoon with concomitant increased pollution from oils, greases and possible discharge of onboard sewage, which could have adverse environmental impacts on water quality in Bocilla Lagoon, as well as Kettle Harbor. The use of deeper draft, larger boats with larger propellers and more powerful engines could also result in damage to adjacent grassbeds in the vicinity of either ends of the proposed channel, either through direct propeller contact or through prop wash, when such boats are navigated in areas minimally deep enough to accommodate their draft. Since the installation of the proposed channel would result in a deeper, more readily used access to Bocilla Lagoon by larger boats with the remaining original channel usable also, at least for a time, there is a-substantial likelihood of increased residential development on riparian property around Bocilla Lagoon. This could have the result of reducing water quality in the lagoon, or potentially so, through septic tank leachate, stormwater runoff and other adverse environmental effects, such that the water in the lagoon traditionally approved for shellfish harvesting may be prohibited in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying both the variance application and the permit application sought by Bocilla Waterways, Inc. DONE and ENTERED this 24th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Kenneth O. Oertel, Esquire Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas W. Reese, Esquire Environmental Confederation of Southwest Florida 123 Eighth Street, North St. Petersburg, Florida 33701 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner, E. F. Guyton, has filed an application for a permit which would allow the dredging of a boat slip and construction of a sedimentation basin with boat storage, specifically requiring the excavation of a boat basin, access canal, and access channel on his property which is located on the west shore of Crescent Lake, in Putnam County, Florida. The permit application number is 54-6806. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has the responsibility of appraising those applications such as the one submitted by the Petitioner, E. F. Guyton, and making a decision to grant or deny that permit. The authority for such action on the part of the Respondent resides in Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code. This cause comes on for consideration based upon the Respondent's letter of intent to deny the application, as dated August 22, 1978, after which the Petitioner has filed its petition challenging that intent to deny and requesting that the permit be granted. The petition in behalf of the Petitioner was received by the office of the Respondent on September 8, 1978. It was subsequently assigned to the Division of Administrative Hearings for consideration and that Notice of Assignment was dated September 28, 1978. The proposal for permit calls for excavation of a boat basin 100 feet wide and 480 feet long, leading into an access canal 25 feet wide and 500 feet long. This excavation is in the vicinity of an existing intermittent natural stream. The proposal would call for the removal of approximately 21,000 cubic yards of silt and sand, landward of mean high water. The excavation would be accomplished by use of a dragline to a depth of -2.0 feet MSL. The basin and canal slopes would be 2:1 and stabilization of slopes would be assured by riprap and grassing. A concrete spillway would be constructed at the upper end of the basin to direct the stream flow into the basin. In addition, the proposal calls for the dredging of an access channel through the shallow littoral zone of Crescent Lake to the mouth of the proposed access canal. The dredging involved with the access channel would cause the removal of 400 cubic yards of sediment from an area 250 feet long and as wide as 30 feet. The proposed depth of the channel is 2.0 feet MSL and slide slopes would be 5:1. The spoil would be pumped to a dike holding area on adjacent uplands. The Respondent's Exhibit No. 1, which is the permit application, offers a sketch of the boat basin with secondary sedimentation feature and the attendant access canal and channel. The project lies between U.S. Highway 17 and Crescent Lake, Areas to the south and west of the site are pasture and bayhead wetlands and they serve as a watershed for the aforementioned intermittent stream. Other upland areas in the vicinity are dominated by fully-drained flat woods and well-drained sand hill and messic oak terrain. The project site waterward of the mean high water is part of a shallow littoral zone of the west shore of Cresent Lake. The intermittent stream receives the runoff from the pastureland and drainage from U.S. Highway 17. There is a pronounced change in elevation during the course of the intermittent stream. The submerged littoral zone of the lake, which includes the proposed site of the access canal, falls away at a gentle slope and includes a number of supporting hardwoods, predominantly bald cypress. The area also includes submerged emergent vegetation, which is found in the shallows offshore. These shallows are exposed to favorable sunlight from the point of view of the health of this vegetation. The vegetation includes an emergent bed of oft stem bulrush (Sicrpus validus) which is in line with the proposed channel. Within the photic zone there is submerged tape grass (Valisneria americana) and naiad (Najas sp.). On the shore of Crescent Lake at the project site is found a hardwood swamp in its natural form, together with a creekbed which divides into numerous channels fanning out in the direction of the lake itself. This area of the creekbed contains bald cypress (Taxodium distichum), red maple (Acer rubrum), swamp ash (Fraxinus panciflora), black willow (Salix nigra), black gum (Nyssa biflra), water hickory (Carya aquatica), and wax myrtle (Myrica cerifera). The herbs and ferns in this area include penny wort (Hydrocotyl umbellata), arrow- arum (Peltandra virginica), leather fern (Acrostichum danaeifolium), and royal fern (Osmunda regalis). The sediments found in the creek area are sandy to silty sand. In the area where the boat basin/sedimentation facility would be located, the present intermittent stream is much more confined than in the area of the creekbed. Only in times of heavy rainfall does the water come outside the banks of the intermittent stream and inundate the surrounding territory. This portion of the stream is densely vegetated by a mixture of hydrophytes, facultative hydrophytes, an optimally situated upland species. These include sweet bay (Magnolia virginiana), black gum (Nyssa biflora), and red maple (Acer rubrum). Additionally, there are slash pine (Pinus elliotii), long leaf pine (Pinus palustris), dahoon (Ilex cassine), wax myrtle (Myrica cerifera), water oak (Quercus nigra), wild azalea (Ericaceae), and saw palmetto (Serenoa repens). The sedminets in this area range from very sandy in the slightly higher elevations adjacent to the stream bed to a heavy peat which is found predominantly in the bay tree locations. The uplands in the agricultural area are dominated by water oak, slash pine, long leaf pine, live oak and saw palmetto. A more graphic depiction of the project site and in particular as it relates to the intermittent stream, shore line upland agricultural area, and U.S. Highway 17 may be found in the Petitioner's Exhibits 1 and 2 and the Respondent's Exhibits 2 through 15, which are photographs of the project site. There are numerous varieties of fish in the area of Crescent Lake through which the access channel would be routed. These include: Seminole killifish (Fundulus seminolis), naked goby (Gobiosoma bosci), black bullhead (Ictalurus melas), brook silversides (Labidesthes sicculus), sunfish (Lepomis sp.), large-mouth bass (Micropterus salmoides) and Atlantic needlefish (Strongylura marina) . In addition, there are 35 species of invertebrates which were collected in the studies made by employees of the Respondent in their assessment of this permit application. The names of those invertebrates may be found in the Respondent's Exhibit No. 19 which was admitted into evidence in the course of the hearing. The vegetation and shallow water with a sandy bottom, together with the numbers and species of macro invertebrates, small fishes and immature game fishes point to the fact that this part of the lake serves as a valuable site for the propagation of fish, otherwise referred to as a spawning ground. The water quality in Crescent Lake at the site of the project is good, from the standpoint of gross observations. However, there have been some indications of eutrophication in Cresent Lake. A more complete understanding of the water quality may be gained from an examination of the Respondent's Exhibits 21 through 41 admitted into evidence. These exhibits are constituted of certain water quality reports rendered after extensive testing in Crescent Lake. The rainfall in the area exceeds 54 inches a year, with 50 percent of that rainfall being recorded in the wettest quarter, in which over 7 inches a month would fall. July has recorded 15 inches as a mean measurement over the last 80 years, with the month of May showing less than 2 inches, the month of September showing less than 2 inches and the month of October less than 1 inch. In considering the proposed project, a beginning point would be an examination of the ability of the primary filtration pond and secondary filtration function found in the boat basin, to adequately disperse the pollutants which will come into the system from the agricultural area and U.S. Highway 17. That treatment system is inadequate. The inadequacy exists because in periods of low rainfall the pollutants will settle to the bottom of the siltation system and will not be dispersed evenly. This cycle of low rainfall when followed by heavy rainfall, such as occurs in July, will cause the pollutants to be rapidly discharged from the system into the basin of the lake, either in a dissolved form or a free form, causing an unreasonable dilatorious effect to water quality and creating possible turbidity. The confined nature of the proposed channel which empties into the lake will promote scouring because the water is coming out in a more confined area than the natural access allows at present. In addition, the flow velocity in the secondary siltation system is not strong enough to flush out the pollutants in an efficient manner. Finally, channelization promoted by the system would remove a certain percentage of the biological treatment that occurs in the natural intermittent stream, thereby introducing a greater quantity of pollutants into the lake and reducing oxidation that this biological treatment and natural course of the intermittent stream bed now provides. The project, as contemplated, is very similar in its nature to the canal system in Dunns Creek, a body of water adjacent to Crescent Lake. A study conducted on that canal system revealed a very poor quality of dissolved oxygen, which falls below the water quality standards for Class III waters. (A copy of this report may be found as Respondent's Exhibit No. 20 admitted into evidence.) These are the same standards that would apply to Crescent Lake. In addition, there is a lack of flushing and the development of aquatic weeds deterimental to the fish and invertebrates located in the area of the Dunns Creek canals. Therefore, a similar problem could be expected in the project now under consideration. If the project were completed, the excavation of the material would cause disruption of the sediment and water quality degradation if precipitation occurred during the excavation. Efforts at turbidity control would not protect against a heavy rain and the maturely vegetated stream bed and productive littoral vegetation and substrates would be lost. The long term effects of the project would cause degradation of the water quality and a loss of fish and wildlife resources in the impact area. The filtrative assimilative capacity provided by the algae, shrubs, trees and associated substrates involved in the process of absorption and in aerobic bacterial metabolism, would be eliminated by the project and replaced by an intermittently flushed, highly nutrified shallow water lagoon and canal. Pollutants associated with boat operations would further compound the water quality problems and perpetual sediment disruption would occur because of a natural result of shallow water maintenance and use of the system. Siltation and periodic discharge of degraded basin water into the littoral zone of the lake would adversely effect the productive potential and the habitat potential offered by this area in its present form. Based upon a full assessment of the project, it is established that there would be increased and harmful erosion, shoaling of the channel and the creation of stagnant areas of water. It would also cause an interference with the conservation of fish, marine and wildlife to an extent that is contrary to the public interest. It would promote the destruction of natural marine habitats, grass flats suitable as nurseries or feeding grounds for marine life and established marine soils suitable for producing plant growth of a type useful as a nursery or feeding ground for marine life or natural shoreline processes to an extent contrary to the public interests. These failings are in direct contravention of Chapter 253, Florida Statutes. The project would be contrary to State Water Quality Standards, as developed pursuant to authority of Chapter 403, Florida Statutes. Thus, the Petitioner has failed to give reasonable assurances that the immediate and long term impacts of the project would not result in a violation of the State Water Quality Standards, as required by Rule 17-4.28(3), Florida Administrative Code.
Findings Of Fact The Respondent Harper Brothers, Inc., operates a farming and limestone mining operation in Lee County, Florida. It has filed a surface water management permit application for a project to be operated as an adjunct to the mining operation at Green Meadows Mine owned by Harper Brothers. The Respondent Harper Brothers retained consultants in the general fields of engineering, hydrology, surface water management and hydraulics to assist in the formulation of a surface water management plan for the development and operation of their mining site. As a culmination of this effort, Respondent Harper Brothers filed its application for a surface water management system, and permit therefor, with the district. The SFWMD (District), upon receiving applications for surface water management systems and related permits evaluates water quantity, quality and various environmental concerns related to water resources mandated by Chapter 373, Florida Statutes, Chapter 40E, Florida Administrative Code and Chapter 17-3, Florida Administrative Code. Such an application must meet district criteria contained in the statutes and rules in order for the surface water management permit to be issued. The district's staff makes a recommendation to its governing board for approval or denial of such permits, and often with related conditions attached. In the instant case, after review of the various water quality and environmental criteria, the recommendation of the governing board of the agency was for approval of the permit with certain conditions. THE PROJECT The project which is the subject matter of this proceeding is a rock mining operation for the mining of limestone in Lee County, Florida. The application is for the construction and operation of a surface water management system to serve a 405-acre mining operation which, in essence, involves the management of the water produced by "de-watering," or pumping-out of the active rock pit, through use of a retention area, dykes, pumps, culverts and a weir structure; with a view toward keeping the water pumped from the pit (dewatering water), and stormwaters which fall on the site, contained in a retention area which has been designed to retain all the dewatering discharge. The only water discharge envisioned off the site represents the volume of stormwater which falls thereon. The stormwater which would be discharged off the site is that water which actually falls as rain onto the retention area as well as stormwater that is pumped into the retention area from the pit through the use of the two existing dewatering pumps. During excavation of the rock pit, water is discharged from the pit into the on-site retention area through use of these two pumps. An existing weir structure allows some water from the retention area to flow through a ditch to a small lake on the Respondent Harper Brothers' property. Water from the lake is used at the rock mine and some existing farmland of Harper Brothers is supplied irrigation water from it. At present, some farmland is supplied irrigation water through a pump from the retention area and some receives irrigation from the mine pit itself through another pump. The remaining water discharged from the mine pit is held in the retention area where it infiltrates into the ground. The retention area will be surrounded by 3.5-foot high by 12-foot wide dykes. Along the south side of the retention area a double dyke system is proposed. The outer dyke will also be utilized as a road and varies from three to four feet in height with a top width of 36 feet, which will be paved. Stormwater discharged from the retention area would flow through an outfall structure located at a crest elevation of 26.75 feet, National Geodetic Vertical Datum (NGVD). The controlled elevation in the retention area is 26.3 feet NGVD which is maintained by a 3.83-foot wide "bleeder notch." Discharge from this structure would then be routed westward between double dykes under the Harper Brothers' "north-south road" down a swale on the north side of its entrance road to "no-name" slough, the ultimate "receiving waters." It was established by expert witness Missimer, for Respondent Harper Brothers, that the dewatering discharge which would be held in the retention area will infiltrate into the ground at a rate of approximately 43,000 gallons per day per acre per a one-foot elevation in water level. The rate of infiltration in the ground is directly proportional to the "head" increase so that for a two-foot water level with the resulting increased pressure or "head," the infiltration rate would be 86,000 gallons per day per acre. Based on the presently permitted maximum monthly withdrawal rate, at a point of equilibrium would be reached at a water depth in the retention area of 1.3 feet, whereby the rate of water pumped into the retention area equals the rate of infiltration into the ground without considering additionally any evaporation into the atmosphere. Thus, the bleeder notch would be set at the above elevation so that all dewatering discharges from the mine (which may contain rock and other sediments) are effectively retained on site. PRE-DEVELOPMENT VS. POST-DEVELOPMENT DISCHARGES The SF design criteria contained in Chapter 40E, Florida Administrative Code, the applicability of which is not in dispute in this proceeding, provides that the volume of stormwater discharged from such a project cannot exceed the volume of such discharges from the same surface area in its pre-development condition. The development referred to in this instance is, of course, the development of the mine and the related retention area and other water management installations or "improvements." Expert witnesses Glaubitz and Serra testifying for the Respondent Harper Brothers and SFWMD established that the quantity of pre-development discharge from the subject site or surface area, was calculated based upon a "design storm event." This means that the pre-development discharge from the Harper Brothers' mine site was calculated, based upon reviews of the watershed boundary, the slope, the vegetation types, and the hydrologic length of the watershed in the geographical area, as well as through the use of aerial photography and U.S. Geological Survey maps, to show the amounts of surface and stormwaters discharged from this site, or its pre-development surface area, during a 25-year, 3-day duration storm event, meaning a storm lasting for a duration of three days of rain of a severity that has been experienced, according to meteorological records, an average of once in 25 years in the subject geographical area. Based upon these calculations of pre-development discharge rate or volume during a 25-year, 3-day storm event, the pre- development discharge from the Harper Brothers' mine site was calculated to be a volume of 10 cubic feet of water per second (cfs). "Post-development discharge" is the rate of discharge taking into account the same 25-year, 3-day storm event, which is allowed to discharge off the project site after development is completed. The calculation of post- development discharge was computed by taking into account such factors as soil storage capability, stage discharge and calculation of the amount of retention or detention of storm water required on the site. Thus, the calculated post- development discharge of stormwater from the site as it is proposed to be designed, is nine cubic feet per second during such a 25-year, 3-day severe storm, which capability is designed into the proposed project. Thus, the post- development discharge of stormwater off the project site does not exceed, and in fact is less than, the pre-development discharge of stormwater from the site. Included within the calculations by these two experts, concerning post-development volume of stormwater to be discharged, is an analysis of the quantity of water to be retained in the retention area of the proposed project. The discharge from the retention area is controlled by the above-mentioned weir and bleeder notch. The retention area proposed by the applicant is to be used both for discharge of dewatering water from the mine pit (under the previously issued industrial water permit) as well as for retention of stormwater. This weir and bleeder notch is designed to be at an elevation which only allows discharge of a volume of water representing the volume of stormwater entering the retention area over a given period of time, and not the dewatering water from the site, which may contain rock, dust in suspension, and other sediments. The previous permit granted to the applicant, as well as the permit sought in this proceeding, would require (as all parties agree) that the dewatering volume of water, representing the water pumped from the mine pit, will totally remain on the site. The project as designed is reasonably assured to be capable of retaining all such dewatering mine pit water on-site. One critical factor considered in determining the design and site for the retention area (155 acres) and in setting the bleeder notch elevation for discharge of stormwater volume, is the infiltration rate from the retention area into the ground beneath it. The Respondent Harper Brothers established (through these uncontradicted expert witnesses) that the infiltration rate is 43,000 gallons per day per acre of the retention area for a one-foot elevation of water in that retention area. One of the factors computed into the infiltration rate calculation is the "transmissivity rate." The transmissivity rate is 200,000 gallons per day per foot in the shallow or surface aquifer at the project site. Petitioner's expert, Mr. Bruns, conceded that if that rate is correct, as it was established to be, that the post-development volume of discharge leaving the project site would not exceed the pre-development volume of discharge, if the maximum pumpage rate into the retention area from the pit did not exceed 8.5 million gallons per day, and it is so found. Parenthetically, it should be noted that the Petitioner presented no testimony of its own concerning infiltration rates or transmissivity rates. Neither did the Petitioner's expert Mr. Bruns make any calculations of quantity of discharge from the site in either a pre-development condition or post-development condition, nor was a water management or hydrologic study of the drainage basin (approximately 6 square miles) made by Petitioner's expert witness, to assist in analyzing quantity of discharge. Under certain hypothetical conditions it would be possible for dewatering discharge water from the mine, as a volume of water, to be discharged, commingled with stormwater discharge, from the retention area. Thomas Missimer, testifying as an expert witness in the fields of hydrology and water quality for Harper Brothers, was uncontradicted. His studies and calculatiops in evidence established that, with regard to the infiltration rate downward into the soil under the retention area, and the amount of water pumped into the retention area, that equilibrium is reached when pumping into the retention area reaches 8.5 million gallons per day. That is, approximately 8.5 million gallons per day infiltrate downward into the soil and thus leave the retention area and thus an 8.5 million gallon pumpage rate per day would result in a static water level in the retention area, aside from evaporation. If the Respondent pumped in excess of this figure, which might be possible under its present mine dewatering industrial use permit, then the pumpage figure might exceed the equilibrium figure and cause the volume of water discharged off the site to exceed that volume which only represents stormwater. Accordingly, the parties stipulated that the maximum daily pumpage rate of 8.5 million gallons per day would be included as a condition in the permit, if it were issued to the Respondent, such that, based upon the uncontradicted infiltration data, that the limitation to a maximum pumpage rate into the retention area of 8.5 million gallons per day from the mine pit, would be permissible. In view of this stipulation, Petitioner withdrew its contention that the post-development volume of discharge water leaving the site would exceed the pre-development volume of discharge. It was thus shown that at the maximum pumpage rate of 8.5 million gallons per day no mine dewatering discharge (as a volume of water) will leave the retention area. NON-ALTERATION OF HISTORICAL DRAINAGE PATTERNS The Petitioners also contend that the supposed alteration of historical drainage patterns by this development at the site will cause additional flooding to the Petitioner's access road to their property (residence and nursery) by the road known as Mallard Lane. In that connection, the historic pattern of stormwater discharge off the project site or its geographical area, is figured into the analysis of pre-development water volume discharge versus post-development discharge. This project, like others of its type, is mandated by the rules at issue to not alter the pre-development patterns of water discharge off the site area so as to adversely affect the property and landowners off the site. Although the pre-development discharge is generally observed and calculated by looking at a site before the development involved in a permit application takes place, in the instant case, Harper Brothers, Inc., by the authority of its previously issued dewatering and industrial water use permit had already initiated its mining operation and so pre-development conditions as they relate to this permit were not directly, physically observable. Accordingly, a hydrologic study of the drainage basin in which this project is located was performed, and, in conjunction with the use of aerial photography and U.S.G.S. quadrangle maps, the perimeter of the basin was determined and an analysis of the historical pattern of flow in the drainage basin was done. The general flow of water in the drainage basin historically is from northeast to southwest, with an ultimate discharge into the "no-name" slough, a "cypress head" or slough which generally flows in a westerly and southwesterly direction from the area immediately adjacent to the project site. Internally within this drainage basin, some old pre-development north/south dykes have blocked some of the westerly flow which historically existed at the site, thereby causing some of the water to flow in a northwesterly direction until it reaches the northern end of the north/south dykes, thence returning to the generally southwesterly drainage pattern, ultimately ending up in the slough system. A small area of farm fields was located north of the east/west access road to the site, and southerly of an existing east/west line of farm dykes, and may have drained in a southerly direction before development. There is currently no information and no evidence of record concerning how this farm field area was drained. The drainage from this area now, however, is insignificant and is calculated at approximately one cubic foot per second as a maximum rate. As the calculated post-development discharge from this project site is approximately 9 cubic feet per second, even if it be assumed that the drainage from the old farm field should be added to the post-development discharge rate from the project site itself, such an addition would only equal and not exceed the historic, pre-development discharge rate of ten cubic feet per second. The flows in a southerly direction are currently blocked by the east/west access road to the Harper Brothers' site, used by Harper Brothers. In a predevelopment condition however, the same situation existed since the southerly flow was similarly blocked by farm dykes which existed in the pre- development condition. The proposed facility is designed to have stormwater which falls on the entire project site to be pumped into the retention area. The volume of stormwater permitted to be discharged will discharge from the retention area via the above-mentioned outfall structure and will be routed westward through the double-dyke system down a drainage swale on the north side of the entrance road, and ultimately into the no-name slough. Thus, the historic drainage pattern of the basin from the northeast to the southwest will not be significantly altered by the project as designed and proposed. The project generally preserves this historic drainage pattern by discharging the drainage within the basin into the "no-name" slough as occurred in the pre-development condition which, when the above-described pre-development and post-development discharge rates are compared reveals that there will be no adverse alteration in terms of either a dearth of or excess of water supply to this natural slough system. The Petitioner's access road, North Mallard Lane, running from north to south, accessing Petitioner's property west of the project site, is indeed subject to inundation, but was subject to such inundation in the pre-development condition of the project site. This is because the slough crosses this access road. Since the post-development condition does not alter the historic patterns of drainage to any significant degree, and does not represent an alteration in the volume of discharge from the project site area over that in the historic, pre-development condition, no additional flooding to the Petitioner's access road will be caused as a result of the project installation and operation. The flooding being caused to the Petitioner's access road, indeed was shown to be related in part to culverts of insufficient size installed by Lee County, so that water tends to stand on the road surface as opposed to draining under and away from it. NON-ALTERATION OF THE pH OF RECEIVING WATERS It is undisputed that the subject project, like all such projects, under the permitting authority of SFWMD, must meet state water quality criteria contained in Chapter 17-3, Florida Administrative Code. The design of such a surface water management system must include "best management practices" (BMP's) in order to satisfy the district's design criteria. BMP's are techniques which are incorporated into the design of such a system to enhance water quality such as the use of swales, retention ponds, and gravity structures. Given that the project will utilize a retention area, grassed swales and other well accepted water management structures, the design was shown to comport with "best management practices." Water quality measurements for the only water quality parameter in dispute, that of pH, were taken on the project site using standard, accepted scientific methods and U.S. Geological Survey Water Quality Standard sampling techniques. The tests revealed a pH in the retention area itself of 7.91 pH units. The pH in the pit area was 7.8 pH units and in the off-site water in the slough, the pH was 7.3 units. The water discharge from the retention area would be a combination of stormwater (rain water) which is approximately 6 pH units in the geographical area involved, and the retention area water at approximately 7.8 pH units. The precise pH of this discharge water would depend on the quantities of water from each source, but was shown to be almost neutral or approximately at a pH of 7. Thus, the discharge from the retention area of the commingled dewatering and stormwater, if such occurs, will not alter the receiving waters one full pH unit. Upon issuance of the permit, the applicant will still have to comply on a continuing basis with the water quality parameters of Chapter 17-3, Florida Administrative Code, and the staff of SFWMD will continue water quality monitoring after the permit is issued. There has thus been no showing that commingling of dewatering water and stormwater in the retention area and the discharge of such commingled waters to the receiving waters of "no-name" slough would affect the pH of that receiving water in a manner to exceed existing, permissible pH parameters and adversely affect water quality. Expert witness Serra testifying for the district as well as for Harper Brothers, has studied similar mining operations. Such operations, utilizing similar water management procedures, have not caused any water quality violations related to discharges of commingled dewatering and stormwater, including no violations of the pH parameters. Finally, near the conclusion of the proceeding, Petitioner, in effect, abandoned its dispute regarding the issue of compliance with the pH water quality parameter.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the South Florida Water Management District authorizing issuance of a surface water management permit to the applicant herein for the proposed surface water management system, imposing upon the applicants the limiting and special conditions enumerated in the district staff report depicted in Exhibit 2 and incorporated by reference herein, and additionally, those two special conditions set forth immediately above. DONE and ENTERED this 17th day of August 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of August 1984. COPIES FURNISHED: W. E. Connery Gulf Hydro-Farms, Inc. Post Office Boa 148 Estero, Florida 33928 John A. Noland, Esquire Post Office Box 280 Fort Myers, Florida 33902 Michael S. Tammaro, Esquire South Florida Water Management District Post Office Box "V" West Palm Beach, Florida 33403-4238 John R. Maloy, Executive Director South Florida Water Management District Post Office Box "V" West Palm Beach, Florida 33402
The Issue The Department of Environmental Protection seeks to impose costs and specific restoration requirements resulting from unpermitted dredging and filling by Respondent. Inherent in that issue are the following: Whether the property at issue was within the Department's dredge and fill jurisdiction at the time the property was filled; and The amount of the Department's costs, if any.
Findings Of Fact The parties' stipulated to the following facts: Petitioner agency has the authority to administer and enforce Chapter 403 F.S. and the rules promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C. Respondent is the developer of a parcel of real property located in Section 10, Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de St. John Subdivision, located at the northwest corner of the intersection of South Main and Southwest 6th Terrace. The property is a wetland area. On February 13, 1992, agency personnel inspected and found fill material had been placed on two areas of the parcel: an area approximately 88 feet by 83 feet for residential development (area 1) and an area approximately 83 feet by 25 feet for an access driveway (area 2). The fill material was placed by Respondent without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92- 0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never applied for a permit and has proposed no mitigation for the filling done without a permit. Jack Dunphy is the supervisor of Petitioner's dredge and fill enforcement section for its Northeast District. He earned a B.S. in biology and has taken postgraduate courses in plant morphology, plant taxonomy (the identification of plants) and wetlands ecology. He has had further annual training by the agency in wetland plant identification. He was accepted as an expert in the identification of wetland species and agency enforcement procedures. At all times material, Mr. Dunphy used the version of Chapter 17-301 F.A.C. accepted as Joint Exhibit B in making his determination that the agency has dredge and fill jurisdiction of Lot 85. The Respondent contended that the agency had no dredge and fill jurisdiction because Lot 85 is an isolated wetland. At all times material, the rules did not place isolated wetlands within agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were amended effective July 1, 1994 to give the agency jurisdiction over isolated wetlands. Both parties place substantial reliance upon Rule 17-312.030(2)(d) F.A.C. which provided in pertinent part: For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for waters exempted by [rule], which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below: * * * (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in [statute]. Standard hydrological methods shall be used to determine which streams constitute intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge and fill permitting unless there is a continuation of jurisdiction as determined pursuant to [rule]. The agency used the procedures outlined in Chapter 17-301 F.A.C. to determine whether Lot 85 was connected either vegetatively or hydrologically to a named water body. Chapter 17-301 F.A.C. lists both the wetland plants and the method for determining dominance of those species. It is undisputed that, under the applicable rules, an area is connected vegetatively to a state water if there is a domination of wetland plants connecting the area to a named water body. It is undisputed that, under the applicable rules, an area is connected hydrologically to a state water if there is an open water connection from the area to a named water body. On the ground, an area may be physically connected to a state water either vegetatively (dominant named species) or hydrologically (by water). On the ground, an area may be physically connected vegetatively and hydrologically. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to establish a jurisdictional connection if an area is connected by a combination of water and vegetation. Respondent contended this is a clear misinterpretation of the agency's own rule. The agency's standard operating procedure at the time Respondent placed the fill was to interpret its rules in para materia to require that its personnel "ground truth" the area in question by first identifying surface waters (a named water body, in this case, Mason Branch and its unnamed tributaries) and proceed landward, by ground, to establish the connection. As long as there was water or dominant jurisdictional vegetation, the agency pronounced a jurisdictional connection. Mr. Dunphy determined that Lot 85 was dominated with wetland vegetation and that the water on that parcel flowed through a culvert under South Main Street and off to the east of the property. South Main Street is a dirt road which has been in place for approximately twenty years. South Main Street physically separates Lot 85, which contains jurisdictional vegetation, from jurisdictional vegetation growing to the east of South Main Street. It does not separate Lot 85 from the lot immediately north of Lot 85, which is also covered with jurisdictional vegetation. The water on Lot 85 and this adjacent lot drains through the same culvert, (hereafter culvert A) under South Main Street to the east. Mr. Dunphy drove through the area and identified what he considered to be an hydrologic connection between Lot 85 and an unnamed tributary of Mason Branch. There is no dispute that Mason Branch is a water of the state. It appears on maps going back to the nineteen-sixties. The unnamed tributary was identified on P-3, the United States Department of the Interior Geological Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to admit that the unnamed tributary could not be described as a "bubbling stream," witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground what they were able to identify as, "an unnamed tributary of Mason Branch." As one responsible for enforcing the agency's dredge and fill rules, Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps, and aerial photographs to determine jurisdiction. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in red ink approximately how Lot 85 is connected to the Mason Branch tributary. In general, water flows from Lot 85 to the lot north of Lot 85 (designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85 and under South Main Street, then through a wetland area marked by jurisdictional vegetation east of South Main Street where it connects to an excavated ditch. The excavated ditch turns to the north where it empties into another wetland area marked by jurisdictional vegetation, and then through culvert B under another dirt road. From there, the water flows through jurisdictional vegetation to the unnamed tributary connecting to Mason Branch. The water course from the end of culvert A to the beginning of the excavated ditch cannot be seen on P-2, an aerial photograph, because of the canopy of the wetland trees. The western beginning of the ditch is indicated by a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2 in a circle. Mr. Dunphy visited the vicinity of Lot 85 eight times between the agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995. Each of the eight times Mr. Dunphy visited the site, water was flowing through culvert A running under South Main Street and Lot 85 was inundated. Water also was running through culvert B. On his first visit to the area, Mr. Dunphy walked from the eastern side of South Main Street, opposite Lot 85, into the woods and saw a small, approximately seven foot wide, defined channel where the water flowed over jurisdictional vegetation east to the ditch. He saw quite a bit of water through this area and water flowing through the channel prior to reaching the ditch. According to Mr. Dunphy, the area east of South Main Street but west of the ditch contained cypress and tupelo trees with buttressed (expanding out) trunks and water lines, lichen lines and moss lines which appeared to be above the level of the street due to periodic inundation of the area. This is the type of hydrologic indicator from which scientific judgment may conclude that inundation or saturation is frequent, whether or not a specific agency rule to that effect is in place. Indeed, it is fairly simple cause and effect logic, and therefrom the undersigned infers, that water in the area has frequently stood higher than the road and may have overflowed the road. Also, on a visit in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt roads in the area were heavily washed out in places by high water. Mr. Dunphy's walking the parcel and tracing the runoff constituted "ground truthing." Because Respondent challenged agency jurisdiction, Mr. Dunphy requested that the agency's Jurisdictional Evaluation Team from Tallahassee also make a determination as to whether or not Lot 85 was within the agency's dredge and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency has assigned them the responsibility for making similar jurisdictional determinations around the state. As an expert in enforcement procedures, Mr. Dunphy regularly relies on the team's opinion concerning jurisdiction. He went to the area with the team during their ground-truthing inspection and relied on the team's report. The report also explains and supplements Mr. Dunphy's direct evidence. That October 26, 1993 report concluded from a visit to the site on October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the vegetation which connects Lot 85 to the unnamed tributary of Mason Branch. The report states, in pertinent part, as follows: The . . . property was inspected 19 October 1993. The property had been timbered recently and most of the canopy trees were gone. Those trees remaining were the same species as the trees on adjacent properties on all sides . . . which were covered with mature swamp hardwood forest. Many of the stumps on the . . . property were sprouting, so they could be identified to species and these were also the same as those on adjacent properties. The dominant canopy species on the adjacent properties were black gum (Nyssa sylvatica var. biflora) and bald cypress (Taxodium distichum). Other species present included dahoon holly (Ilex cassine), red maple (Acer rubra), and slash pine (Pinus elliottii). The gum and cypress tended to make up 80 to 85 percent of the areal coverage of the canopy, with dahoon and maple being the majority of the remainder. Much of the groundcover vegetation . . . consisted of invader species which had moved into the areas of fill. All other species present were wetland plants. A list of the plants found on this property is attached . . . The property was inundated at the time of the inspection. Water exited the property at its north- west corner through a culvert under South Main Street, flowing east into the swamp on the other side of the street. This swamp ran northeast and where it ended a ditch approximately 7 ft. wide turned north to connect to another swamp near Southeast Second Avenue. Water from this swamp passed under Southeast Second Avenue through another culvert and continued into another swamp on the north side of the road. This swamp ran north, turning gradually to the east where it connected to a tributary of Mason Branch. This point of connection was by means of a ditch which flowed through a wet hardwood hammock forest. Flow in all of these waterways was brisk at the time of the inspection and all points of connection were visited and inspected. Mason Branch is a water of the State, therefore all waterways and wetlands connected to it are also waters of the State . . . The property is vegetated by plant species which are currently listed in Sections 17-301.400(2) and Florida Administrative Code. (emphasis supplied) The agency concluded that Lot 85 is within the headwaters of a larger wetland area that constitutes the headwaters of the unnamed tributary of Mason Branch, a water of the state. In 1991, the Respondent had employed Mike Adams to analyze its property for purposes of planned development and to render advice as to what state and federal permits would be required. He visited the area six times and Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts of the subdivision were located in wetlands subject to the jurisdiction of Petitioner agency and the Army Corps of Engineers, and that development required permitting by both those agencies and possibly by St. John's Water Management District. Mr. Adams has a B.A. in biology and an M.S. in environmental management. At the time of formal hearing, he was a Natural Resources Manager for the Florida National Guard. He is a Certified Environmental Professional. He was accepted as an expert in wetland plant identification. In his work as a private consultant for the Respondent, Mr. Adams had determined that Lot 85 was within the Department's jurisdiction. In making that determination, he analyzed whether or not Lot 85 was dominated by wetland plants. Then he determined whether or not the vegetative composition of the wetland plants on Lot 85 extended off-site. In determining that wetland plants were dominant both on-site and off- site, Mr. Adams employed the plant species and the method for determining dominance set out in the Department rules in effect at all times material. Lot 85 was covered with jurisdictional wetland plants such as cypress, sweet gum, black gum and red maples. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and fill jurisdiction because it was part of a headwater wetland. In formulating his opinion, Mr. Adams walked the entire length of the connection between Lot 85 and the waters of the state, starting at culvert A crossing under South Main Street, through the wetlands to the east of South Main Street, along the excavated ditch, across the street to the north and as far as the unnamed tributary of Mason Branch. Mr. Adams drew the path of the connection beginning at the west end of the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85" in it and the culvert under South Main Street with the letter "A". The aerial photograph and oral testimony clearly demonstrated jurisdictional vegetation dominates between culvert A and the west end of the ditch, from the east end of the ditch to culvert B, parallel to both sides of the ditch for the entire length of the ditch. Mr. Adams also drew in green the path of the connection and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map. Exhibit P-3 as printed by the Department of the Interior does not show a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad sheets like P-3 are not 100 percent accurate in identifying water courses. Mr. Adams never relies solely on quad sheets for determining and advising clients concerning Petitioner state agency's jurisdiction. In his expert opinion, the information on the quad sheets must be ground-truthed. In response to questioning as to why various exhibits did not show all the intervening property between Lot 85 and Mason Branch as "wetlands," Mr. Dunphy testified that the USGS maps only depict wetlands in a general way, both because of the scale and how they are created. The USGS Quad Map itself contains a disclaimer stating that its information is not field checked. "Field check" is synonymous with "ground truth." Mr. Dunphy further testified and pointed out that the National Wetlands Inventory Map created by the United States Department of the Interior (R-3) contains a similar disclaimer which specifically provides that map is not an indication of wetland extent as determined by other federal, state and local regulations. Mr. Adams determined that there was an intact vegetative connection for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch was full of water and that the excavated ditch and/or the spoilage (earth thrown up parallel on either side of the ditch when it was dug) was also dominated with wetland plants covered by agency rule. More specifically, although the excavated ditch appears to start at the edge of the wetland area to the east of South Main Street on P-2, Mr. Adams' green markings demonstrated that it actually starts some distance into the wetland area. The ditch feathers out at both its west and east ends, but identifiable wetland vegetation links up to the hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain of wetland vegetation from Lot 85 to the tributary of Mason Branch except for the roads, where the water (a hydrologic connection) flowed through culverts under the roads. At the time Mr. Adams walked the connection route, the area to the east of South Main Street had pockets of standing water but did not have water flowing through it. Although water was not flowing through the area, Mr. Adams concluded that water typically did flow through that area because of the depth of the standing water which initially caused him not to notice culvert A, which was overgrown, and because the plants present in that area were wetland plants. Admittedly, Mr. Adams was less than articulate when examined about the effects of seasonal rains, intermittent rains, and intermittent flow of the water on the ground, but he eventually made himself clear. He first testified that he thought the flow of water from Lot 85 was "intermittent," but he later clarified that he was not using that word as contemplated by the statute and rule. At one point, he testified that by "intermittent," he intended to mean "seasonal," but did not intend to also indicate that the connection met the definition of "intermittent stream" in the statute or rule. He was perfectly candid that the ditch on the east side of the road did not connect water body to water body but connected vegetation to vegetation and water ran through the ditch from vegetation to vegetation. He agreed that if "hydrologic connection" can only mean "water connecting to water" then there is no hydrologic connection between Lot 85 and the unnamed tributary. However, from the whole of his testimony, it is apparent that surface and ground waters are both involved; water flow depends upon rain regularly depositing water upland, and the water stands, flows slowly, or flows rapidly, dependent upon how deep the water gets, to the tributary; there is probably an exchange of waters with the tributary; this is not dependent upon a specific wet season but during drought periods, no flow will be observed. These explanations do not alter or diminish Mr. Adams' opinion that, applying standard scientific indicators of soil, vegetation composition and hydrology, there is a regular connection by surface and ground water between Lot 85 and the unnamed tributary. He was also definite that there was standing water in the whole area when he was there and that he interprets "isolated" as used in the rule to mean no hydrologic or vegetative connection whatsoever exists and that the water would have to exit Lot 85 without going to the water source (state water) only as a result of periodic flow, which he does not believe to be the situation here. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's witness, Jack Buchansky, was unable to independently identify most of the footage of either P-4 or P-5. Exhibit P-4 was irrelevant in large degree. At most, the two videotapes together show a single occasion shortly before formal hearing when South Main Street, Lot 85, and areas in the vicinity were dry, but even so, they show dirt roads with ditches parallel on each side containing standing water and vegetation. Standing water and vegetation also appear in the culvert shown and in the depression between tire tracks or ruts on the roads. The nature of the vegetation was not explained. Except for asserting that the dirt roads have been high and dry for 20 years and during hundreds of his visits and that water only flows in the ditches during heavy rains, Mr. Buchansky testified much to the same effect as the other witnesses: that the area across the street from Lot 85 (the same area identified by other witnesses with an X in a circle on P-2) was a natural drainage or spill area and that he never went back there because the water stands there after each rain; that the vegetation is the same throughout the area except for the barriers created by the roads; and that water drains away from his property toward the east by way of culvert A. The greater weight of all credible competent evidence is that jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows on the lot to the north; that jurisdictional vegetation grows everywhere east of South Main Street, even in the man-made ditch and/or on the ditch's "spoil" connecting two patches of jurisdictional vegetation, and that the depressed water channel over vegetation between culvert A and the west end of the man-made ditch and the man-made ditch itself collect and funnel rain and ground water because each is lower than the surface soil; and that jurisdictional vegetation dominates from the east end of the ditch to culvert B and between culvert B and the tributary. The roads create a barrier to jurisdictional vegetation, but the culverts carry the water between the areas of jurisdictional vegetation. Wherever the water goes, it is possible for seeds to travel and propagate dominant plant species, dependent upon which plants are involved, and the water flows regularly to the tributary. Unrefuted competent testimony shows that restoration of Lot 85 is necessary because Respondent's fill has caused the wetland to lose some of its functions, including filtering ability, habitat for wildlife dependent on the wetlands, and water storage for flood control. Appropriate restoration will require that the fill be removed to the original grade and that a mixture of red maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Mike Eaton was accepted as an expert in the agency's dredge and fill procedures and permit criteria. He visited the site with Mr. Dunphy to determine whether the fill on the property could be permitted. He concluded it could not be permitted without mitigation. The agency prepared an exhibit itemizing expenses it claimed to have incurred in the course of its investigation. The exhibit was not listed in the Joint Prehearing Stipulation and some parts of it may have applied to charges dropped when the charging document was amended. It was not admitted in evidence over objection. Mr. Dunphy testified that he totalled reasonable expenses at $981.16, but his breakdown of what the expenses were and how they were incurred was insufficient to relate the agency's financial expenditures to the sole charge remaining after the amendment. Respondent did not diminish that figure through cross-examination, but stipulated that $250.00 constituted the Department's reasonable expenses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order finding Respondent guilty of the charged violations and requiring: That Respondent shall, within thirty days of the final order, remove from Lot 85 all fill from the Property, which has been placed within the landward extent of the Tributary of Mason Branch in accordance with the restoration plan, attached and incorporated as Exhibit I in the Amended Notice of Violation. All fill shall be removed down to natural, pre-fill elevations and gradings, and shall be disposed of in a site approved by the Department; and Within thirty days of the fill removal, Respondent shall plant a mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10 feet apart. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Within thirty days of the fill removal, Respondent shall tender $250 to the agency as costs. RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1995.
Findings Of Fact Harold Click and Harold Peterson, Petitioners, are sole owners of property which borders Dunn's Creek, one of the largest tributaries to the St. John's River in Putnam County, and which is described as Lots 80, 88, and 89, Section 38, Township 11 South, Range 27 East. Dunn's Creek is a Class III water body of the state. Petitioners applied for a dredge and fill permit initially in 1980 but Respondent issued an Intent to Deny in January, 1981. A second permit application was submitted in 1982 on behalf of Petitioners following a site visit by representatives of Respondent in June, 1981, but again an Intent to Deny was issued in September, 1982. A third application was submitted on or about May 3, 1984, following another site visit by Respondent's representatives, but the Intent to Deny which resulted in this hearing was issued on December 5, 1984. During these site visits, Respondent's representatives offered suggestions about what might be an acceptable project but gave no assurances that the application, as submitted on May 3, 1984, would be permitted. The project which Petitioners now propose would include the placement of pilings and other fill materials within the waters and landward extent of the waters of the state which would result in the alteration of at least 10,000 square feet of the swamp floodplain community of Dunn's Creek. This proposed filling will degrade the water quality of the areas affected by replacing periodically inundated wetlands with uplands. Although the project also includes construction of a fill road with a bridge over a natural slough on Click's lot, Respondent's expert witness Tyler testified that this portion of the project alone would not have resulted in the Intent to Deny. According to Tyler, the key area of objection was the .23 acres Petitioners proposed to fill which was within Respondent's jurisdiction and which would have widened an already existing berm. This widening would have allowed the placement of two septic tanks and two, dwellings on pilings on the property and an access driveway through Click's portion of the property to Peterson's. As proposed, fill was to be placed over a total of .35 acres, with .23 acres being in the waters of the state or to the landward extent of waters of the state. Bald cypress trees or other species listed in Rule 17-4.02(17), Florida Administrative Code, are present in part of the wetland area occupied by the project site in greater numbers, biomass, and aerial extent than competing plant species or communities. Without appropriate pollution control measures, the proposed project could reasonably be expected to result in an adverse change in the biological integrity, bacteriological quality, biochemical oxygen demand and the concentration of dissolved oxygen, turbidity and nutrients in some of the waters on the project site, in Dunn's Creek, and in discharge areas elsewhere. The filling associated with the project can be expected to have a long- term detrimental impact on water quality and biological resources, according to Respondent's expert witness Deuerling. Natural habitats and rainwater storage areas would be destroyed or detrimentally altered, as would the natural filtration function performed by the swamp areas to be filled. In the immediate vicinity of Petitioners' lots, Respondent has denied two dredge and fill permits and there are an additional two permit applications which are pending. Deuerling has also performed site visits at three other locations along Dunn's Creek in the immediate vicinity of Petitioners' lots, and it can be expected that other permit applications for similar projects will be submitted if Petitioners are granted a permit.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order denying Petitioners' application for a permit. DONE and ENTERED this 5th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985. COPIES FURNISHED: Peter B. Heebner, Esquire 523 North Halifax Avenue Daytona Beach, Florida 32018 Ross S. Burnaman Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This proceeding concerns Clarence E. Middlebrook's application #2-069- 0785AUSMV for a consumptive use permit for his project at Wekiva Falls Resort. Staff of the St. Johns River Water Management District have recommended approval of the application with certain specific limiting conditions. Petitioner, Middlebrooks, contends that the limitations placed on the approval are inappropriate and are so onerous as to preclude the continued use of his facility for public bathing. Petitioner, STS, claims that the present recreational use is not a reasonable beneficial use, interferes with existing legal users of water and is not in the public interest. STS urges limitations more restrictive than those proposed by the district staff. The basic issue for resolution, therefore, is what conditions should be placed on an approval of Middlebrook's application relating to recreational use. Approval of his application relating to an existing household consumptive use permit is not at issue. The parties have stipulated that STS has standing as a petitioner in this proceeding. In addition, in their prehearing statement filed on August 28, 1989, the parties have stipulated that the 14-inch and 28-inch standpipes on the Wekiva Falls Resort are governed by and subject to the provisions of Chapter 373, F.S., and Chapter 40C-2, F.A.C. and are legally considered to be wells for purposes of this proceeding.
Findings Of Fact In their Prehearing Stipulation filed on August 28, 1989, the parties have agreed: Middlebrooks is a private individual who co- owns, along with his wife, and does business as the Wekiva Falls Resort in Lake County, Florida. STS is the owner of approximately 1,842 acres of land contiguous to the southern and western boundary of the Wekiva Falls Resort. The District, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373-219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. On September 4, 1985, Petitioner submitted to Respondent a CUP application No. 2-069-0785AUS to withdraw a maximum of .123 million gallons per day (MGD), i.e. 31.7 million gallons per year (MGY) of water for household type use from two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. An administrative hearing was held regarding that application on November 6 and 7, 1986, and a final order was issued on May 14, 1987. The final order was appealed to the Fifth District Court of Appeal which issued its opinion on July 7, 1988 (529 So.2d 1167). Permit No. 2-069-0785AUS was issued by the District as result of these proceedings. Middlebrooks returned the permit by mail to the District. On September 13, 1988, Middlebrooks submitted to Respondent a CUP application No. 2-069-0785AUS to request approval of a maximum of .123 MGD (31.7 MGY) of water for household type use, which was revised on February 21, 1989, to request a maximum 14.26 MGD of water from the two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Middlebrooks' property in Lake County, Florida. On March 20, 1989, District's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application No. 2-069-0785AUS. Both Middlebrooks' and STS' petitions for administrative hearing were timely filed with the District. In 1968, C.E. Middlebrooks purchased the 140 acre tract on which the wells are located. The property is bounded on the east by the Wekiva River, and on the west by Wekiva River Road. At the time of purchase the property was underdeveloped and overgrown. Shortly after purchase, Middlebrooks inspected the property and found an oval-shaped depression from which water was flowing. Such flow is common in this area along the corridor of the Wekiva basin. These surficial seeps, also called artesian flows, emanate from the surficial and intermediate aquifers. This, and other substantiative findings regarding the characteristics of the property, were made in the recommended order as adopted in the final order in case #86-2101, on May 13, 1987. Still, Petitioner insists that the water was from a natural spring. The only new evidence presented by Petitioner regarding the existence of a "spring" is the testimony of William Shell, who in the late 1930's used to fish with his father in the tributaries and streams off of the Wekiva River. William Shell claims that he and his father took a 10-foot canoe back into the property and he swam and fished in the "spring". Shell was imprecise as to the location of the spring and conceded that the site identified on a map attached to his statement could be as much as five miles off. His testimony as to the existence and location of a spring is unpersuasive in the face of the contrary historical evidence from aerial photographs, soils and geological survey maps, and the well driller's log describing the strata through which the 24-inch well was drilled. In undertaking the development of the property, Middlebrooks dug out the area in which the wells were ultimately drilled, utilizing a dragline to clear out what is now the existing stream bed between the oval-shaped depression and the area which is now the marina (or canoe basin). Extensive dredging was done to develop the marina at a point approximately 200 feet west of the Wekiva River, and additional dredging was done to connect the marina to the Wekiva River in order to have access by boat to the Wekiva River. The stream which now extends from the western boundary to the Wekiva River is called Canoe Creek. In order to maintain the swimming area and the section of Canoe Creek extending eastward from the swimming area to the Wekiva River, it is necessary for Middlebrooks to dredge the area every two to three years. In 1972 as a part of the development activities described above, Middlebrooks hired a well drilling contractor to drill a 14-inch well at a location within the oval-shaped depression. The well was drilled into the Floridan aquifer to a depth of 107 feet, and well casing 14 inches in diameter was driven to a depth of 58 feet. In 1973 Middlebrooks hired a second well drilling contractor to construct a second well within the oval-shaped depression slightly ease of the 14-inch well. The second well was drilled into the Floridan aquifer to a depth of 120 feet, and well casing 24 inches in diameter was driven to a depth of 80 feet. As part of his development activities, Middlebrooks constructed concrete towers around each of the wells and placed diffuser plates and planters on top of each to give the appearance of a waterfall. A concrete wall and sidewalk were constructed around the oval-shaped area. The water flowing from the wells discharges into the oval-shaped swimming area and then flows eastward through Canoe Creek until it reaches the Wekiva River. Middlebrooks' business, known as Wekiva Falls Resort, has a total of 789 campsites located on the northern and southern sides of the property. The swimming area, which extends from the western end of the concrete-enclosed oval- shaped area where the wells are located, to the wooden bridge which crosses Canoe Creek just west of the marina, is licensed by the Florida Department of Health and Rehabilitative Services (HRS) as a public bathing facility. Middlebrooks also offers canoe rentals and paddleboat tours of the Wekiva River, each of which originate from the marina. Middlebrooks' present business operation centers around the water-based recreational opportunities provided by the water emanating from the wells. The facility employs approximately seventeen persons. Groundwater from the Floridan aquifer flows from the two wells under artesian pressure. Middlebrooks testified that he had calculated the discharge from the two wells to be 12.5 mgd and 12.72 mgd, although his records for the period from April 1986 through January 1989 showed average daily flow from the two wells to be 12.98 mgd. The prior final order entered in this matter determined average daily flow to be 12.47 mgd. Because these are artesian wells, flow varies depending on hydrologic conditions. The gate valve for the 24-inch well was frozen in the open position approximately 12 years ago and has since been encased in concrete making it inoperable. There is a diverter valve at water level, which, if opened, would increase the flow volume from the well, but which has no control over the amount of water flowing through the top of the well. As the well is presently structured, water essentially free flows from the well; Middlebrooks can control flow from the 24-inch well only through manual insertion of a poppet valve which must be first hoisted to the top of the well with a crane and then mechanically inserted into the top of the well. The only time this device is used is when Middlebrooks shuts down the well in order to do dredging or other maintenance activities. Early in 1989, the concrete tower encasing the 14- inch well fell over and had to be removed from the swimming area. The well casing was cut off at pool level, removing the gate valve on it. Although flow increased from the 14- inch well as a result of shortening the length of the casing above ground, Middlebrooks mechanically inserted a poppet valve into the top of the remaining casing in order to restrict flow. Middlebrooks contends that, with the restrictor device which is inserted in the 14-inch well, flow is essentially the same as it was before the casing was cut down and the valve removed. In 1973, shortly after the 24-inch well was constructed, USGS did an analysis of the water coming from the well to determine chloride concentrations. Chloride concentrations were measured at that time to be 230 parts per million (ppm). Chloride concentration is a measure of salt content in the water. The benchmark figure for chloride concentration in water as determined by the United States Environmental Protection Agency (EPA) is 250 pp. Water which exceeds 250 ppm in chloride is nonpotable. At the time these wells were drilled, the water was potable. At the base of the Floridan aquifer in the area in which Middlebrooks' property is located is a layer of seawater, extremely high in chloride concentrations, which became trapped when the ocean water which once covered Florida receded and dry land emerged. This water is called relic sea water and is necessarily very old water. Significant discharges through a well in this region can cause the interface between the fresh water in the Floridan aquifer and the relic sea water to move upward toward the cone of influence of the well and break. This is followed by turbulent mixing of relic sea water and fresh water and results in elevated chloride concentrations in the water discharged from the well. This water is sometimes referred to as connate water. Subsequent tests of the chloride concentrations in Middlebrooks' well have been done, both as part of a regional study done by the district and in preparation for this litigation. These test results show significant changes in the chloride concentrations in the water flowing from Middlebrooks' wells. Samples taken by the district in March and October 1986 showed concentrations of 312 ppm in the 14-inch well and 296 ppm for the 24-inch well for March, and 300 ppm for each of the wells in October. The 14-inch well was sampled again by the district in March and April 1989 and showed levels of 335 ppm and 296 ppm respectively, and an April 1989 sample from the 24-inch well showed 317 ppm. Samples taken by Jammal and Associates on August 5, 1989, showed 280 ppm for the 14-inch well and 290 ppm for the 24-inch well. Averaged, these results show concentrations over the 1986-89 period of 304 ppm for the 14-inch well and 300 ppm for the 24-inch well. The changes observed from the 1973 test and the 1986- 89 tests cannot be attributed to seasonal variations. The only samples taken since 1974 from the wells which do not show significant changes in the chloride concentrations are samples which were collected by Middlebrooks himself. The validity of these results is less credible than the results outlined in the previous paragraph, given the expert testimony supporting the former results. Further, the results shown from the samples collected by Middlebrooks are questionable in light of the elevated levels of minerals (including chlorides) which were noted in the analysis of waters taken from Canoe Creek, through which the water coming from the wells flows to the Wekiva River. The water flowing from Canoe Creek is 17 times higher in chlorides than water in the Wekiva River. Chloride levels in the swimming pool area were measured by Dr. Harper at almost 300 ppm. Even Dr. Roessler, an expert called by Middlebrooks noted high levels of mineralization in the water flowing through Canoe Creek to the Wekiva River from the wells and agreed that reductions in flow from the wells would result in reduced chloride concentrations within Canoe Creek. The importance of the significant increase in chloride concentrations in the water flowing from Middlebrooks' wells, as noted, is that the groundwater coming from those wells in no longer potable. Continued discharge from the wells at the current free flow level will aggravate the problem of increasing chloride levels in those wells and in the immediate vicinity of those wells. If no action is taken to address the upward movement of the saltwater-freshwater interface, there is a potential for transmittance of connate water to wells of adjacent landowners. Reduction in the flows from Middlebrooks' wells would stabilize the saltwater-freshwater interface beneath his wells. This could result in lower chloride concentrations in the water flowing from Middlebrooks' wells, and at the very least, there would be no further aggravation of the problem. Section 10D-5.120, Florida Administrative Code, governs public bathing facilities such as Middlebrooks', and essentially has two water quality requirements. The first is a flow-through requirement which specifies that there must be minimum flow of water through the facility of 500 gallons per bather per 24 hours. The second requirement is that total coliforms must not exceed 1000 most probable number of coliform organisms (mpn) per 100 milliliters. Although Middlebrooks' HRS license for his public bathing facility does not limit the number of bathers who may use his facility, there is an existing injunction obtained against Middlebrooks by Lake County, Florida, which allows a maximum of 2500 persons on the entire premises per day. Middlebrooks has made no effort in the past, nor does he presently make any effort to determine how many patrons actually use the bathing facilities on a daily basis. As the prior final order noted "for all the record shows, he may have never had that many (the maximum) since his permit was issued". The only evidence of actual usage of the bathing facilities showed a maximum of 290 persons in the pool area on a summer weekend. Regardless of how few, if any, persons utilize the bathing area under present conditions, the same amount of water flows from the wells daily. The stream which extends from the western end of the swimming area to Wekiva River Road and then off site receives drainage during wet weather conditions from offsite areas. All of Canoe Creek including the portion west of the swimming area is essentially a catch basin for surface water drainage from Middlebrooks' property. Surface water drainage enters Canoe Creek through overland flow, through swales conveying stormwater to it, and through an assortment of stormwater drainpipes which drain parts of Middlebrooks' property as well as off-site areas. The water entering Canoe Creek from this surface water drainage is extremely high in total coliforms. There are no significant stormwater treatment facilities on the site. A concrete weir with a spillway separates the swimming area from Canoe Creek west of the swimming area. The water in Canoe Creek immediately west of the swimming area is extremely high in total coliforms. A sump pump has been installed just west of the weir which, under normal weather conditions, is capable of pumping enough of the water into a roadside swale, thereby diverting it around the swimming area, to prevent this high coliform water from overtopping the weir and flowing into the swimming area. However, under rainfall conditions, the pump will not prevent this drainage from spilling over the weir and Middlebrooks does not run the pump continuously. Water has also been observed spilling over the weir into the swimming area under normal conditions. The higher coliform water which is pumped into the roadside swale is reintroduced into the swimming area through a culvert pipe midway between the oval area, where the wells are located, and the marina. There is also an apparent influx of total coliforms through surficial seepage and other sources internal to Middlebrooks' property. One of these sources of coliforms could be the wastewater treatment plant operated by Middlebrooks on the property. Other than the part-time operation of the sump pump, which was installed for aesthetic reasons rather than water quality reasons, Middlebrooks has done nothing to control the numerous sources of total coliforms to his swimming area, nor does he propose any modifications to accomplish this in his application. Instead he has relied and proposes to continue to rely on the 12.5 mgd flow of water from his wells to dilute the total coliforms entering the swimming area in order to meet the HRS standards for water quality. Middlebrooks dismisses any alterations to the site to address these total coliforms sources as "impractical". To the contrary, it is practical, technologically feasible, and economically feasible to control the introduction of coliform to the swimming area and meet HRS standards by preventing introduction of coliforms rather than relying on massive amounts of groundwater to meet the standards through dilution. One means would be to operate a sump pump around the clock instead of only on a part-time bases. Installation of additional toilet facilities for campers would reduce the use of Canoe Creek and its vicinity as a toilet. More importantly, treatment facilities such as retention and detention areas to treat stormwater runoff before it enters Canoe Creek, as well as diverting the water around the oval part of the swimming area, would enable Middlebrooks to comply with HRS total coliforms standard without the necessity of utilizing 12.5 mgd of groundwater. Reducing the flow of water from Middlebrooks' wells in accordance with the recommendations contained in the District's staff report would not cause blowouts or any other adverse geological consequences on his property or elsewhere. As indicated earlier, this region is characterized by artesian flow, and there is the potential for increased discharges from springs or other discharge points within the vicinity of Middlebrooks' property if flow is reduced from his wells. Overall, the area should return to a more naturally balanced system such as existed before the wells were constructed. The flow which discharges presently through the wells produces enough water to supply the domestic needs of 90,000 people. Reduction in the discharge from the wells would make additional water available for use for other beneficial purposes within the area as the water which now discharges from Middlebrooks' wells could be withdrawn at other locations within the vicinity of Middlebrooks' property. Through properly spacing wells and limiting their depth, (skimming well fields) these other uses of water could occur without aggravating the existing problem with chloride concentrations. Middlebrooks and one of his employees described water upwelling within the swimming area on one occasion when flow was stopped from the wells. While this would not be unusual in an area characterized by artesian flow, it may also be an indication that well construction problems exist with either or both of the wells. Having the wells geophysically logged as is required in the permit conditions proposed by district staff, would reveal, among other things, whether the well is properly grouted and sealed. If the wells are not properly sealed contaminated connate water could be allowed to move upward and interchange with other water-bearing zones, resulting in chloride contamination in those zones as well. The aquatic and wetland habitat associated with Canoe Creek can be divided into three distinct segments: (1) the intermittent stream extending westward from the weir and spillway to Wekiva River Road (hereinafter "the intermittent stream"); (2) the swimming area which begins at the weir and extends to the bridge just west of the marina (hereinafter "the swimming area"); and (3) the marina which encompasses the dredged boat basin and that portion of Canoe Creek extending eastward from the marina. These three segments have varying importance as aquatic or wetland habitats and can be separately characterized according to the impacts which would be felt from a reduction in the flow of water from the wells as recommended by the district staff report. The intermittent stream is characterized by slow flowing or stagnant water. There are species indicative of a wetland system associated with the channel here, although the banks of the stream have been mowed and maintained. Aquatic and wetland dependent species do utilize this part of the stream; however, they are in less abundance than in other parts of Canoe Creek. Because the hydrology of this portion of the stream is not affected by the flow from the wells, there would be no impact on this area if flow from the wells is reduced. The swimming area, which consists entirely of hard sand, is devoid of biological activity as a result of the regular mechanical maintenance performed on it by Middlebrooks, leaving no vegetation in the channel. Although there are aquatic species which utilize primarily the oval-shaped part of the swimming area, many of these are exotic species. In any event, there would continue to be a flow of water to maintain that environment. The southern bank of Canoe Creek in the swimming area down to the water's edge has been cleared, sodded, and is maintained as a lawn. There are no wetland plant species in this area. There are trees along the northern bank of the stream in this area, and it is less disturbed than the southern bank; however, the understory has been removed. Overall, there would be minimal impact to the aquatic and wetland species within the creek itself, and no impact to plant species along the banks of the creek if flows are reduced in accordance with the District staff' s recommendation. The marina area and the creek eastward of it provide the most abundant and productive part of the creek for aquatic species. This portion of the creek is at the same grade as the Wekiva River and therefore is in equilibrium with the river. Water levels are controlled by the pulse of the river, rather than the flow from the wells, and will be unchanged by reduction of flow from the wells. Although there would be a reduction in the amount of water moving through this area, there would be little, if any, impact to the functions of this portion of the creek as an aquatic habitat if the reduction in flow recommended in the district staff report were accomplished. Viewed as a whole, Canoe Creek, because of the wells and the alterations made to the site by Middlebrooks, is an altered natural environment with an artificially created and maintained ecosystem. The primary natural feature associated with this property is the riverine forested wetlands which extend approximately 200 feet inland from the Wekiva River. This area lies within the floodplain of the river and is influenced by the rise and fall of the river. These wetlands would not be affected at all by reduction in flows from the wells. Middlebrooks has contended that the flow from his wells provides a benefit to the Wekiva River by improving water quality in the river. Extensive water quality data showing the quality of discharges from Canoe Creek, versus ambient conditions in the river both upstream and downstream of Canoe Creek, do not support this assertion. The flow from Canoe Creek does not reduce temperatures in the river nor does it provide a thermal refuge for fish. Dissolved oxygen levels in the water flowing out of Canoe Creek are virtually the same as in the Wekiva River upstream of the creek. Chloride concentrations in the Canoe Creek discharge are 17 times higher than in the river itself. Total coliforms are higher in the Canoe Creek discharge than in the river itself. Although there is a slight reduction in nutrients as a result of the Canoe Creek flow, this slight reduction has no impact in a fast moving system such as the Wekiva River. Significantly, the flow from Canoe Creek violates State Water Quality Standards for specific conductivity (an indicator of the level of mineralization.) The probable source of this violation is the mineralized water flowing from Middlebrooks' wells. Reduction in flows from the wells would not degrade water quality in the Wekiva River and would likely eliminate the source of a specific conductance water quality violation. The 12.5 million gallons per day of groundwater which flows through Middlebrooks' wells (as distinguished from the 31.7 million gallons per year that is used for household type use) is primarily used by him to enable him to charge visitors to swim in the water. Any other uses of the water are secondary. The absolute deadline for making application to the District for continuation of existing uses and thereby to be evaluated as an existing legal user was September 11, 1985. The first application filed by Middlebrooks for an allocation of water for a use other than household type use was filed on September 13, 1988, exactly three years after the deadline for the use to be classified as and evaluated as an existing use. No exemption was sought or claimed for the water supplying the swimming area prior to the September 11, 1985, deadline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered by the District Board approving the issuance of a consumptive use permit to C.E. Middlebrooks for the amounts and under the terms and conditions established in the District's Technical Staff Report dated March 24, 1989. DONE AND RECOMMENDED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by the Petitioners. FACTS PROPOSED BY PETITIONER MIDDLEBROOKS 1-8 Adopted in paragraph 1. 9-12 The existence of a prior "springs" was not proven by a preponderance of evidence and these findings are rejected, with the exception of the date of purchase, which is adopted in paragraph 2. 13 Rejected as unnecessary. 14-18 See 9-12, above. 19-36 Rejected as unnecessary or subordinate to the facts found. 37 Adopted in paragraph 10. 38-43 Rejected as unnecessary or subordinate. 44 Adopted in paragraph 10. 45-46 Adopted in substance in paragraph 24. 47, 48 Adopted in part in paragraph 9. The extent of use was not established. Rejected, except as to the existence of the injunction, which is adopted in paragraph 20. This injunction was apparently the result of neighbors' concern over a proposed rock concert to be held at the site. Adopted in paragraph 19. 51-53 Rejected as unnecessary or subordinate. 54, 55 Rejected as unsupported by the weight of evidence. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as unsupported by the evidence. 59-63 Rejected as unnecessary or subordinate. 64-79 Rejected as contrary to the evidence. 80-81 Rejected as unnecessary or subordinate. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 85-90 Rejected as unnecessary or subordinate. Adopted in substance in paragraph 9. Rejected as contrary to the evidence (the "efficiency" of the bathing area). Adopted in part in paragraph 20, otherwise rejected as unnecessary. 94-99 Rejected as cumulative. These same facts are addressed above. 100-101 Adopted in part in paragraph 22. 102-168 Rejected as cumulative. These same facts are addressed above. 109-113 Rejected as contrary to the evidence. 114 Rejected as cumulative 115-118 Rejected as contrary to the evidence. Rejected as unnecessary and irrelevant. Rejected as contrary to the evidence. Rejected as irrelevant. FACTS PROPOSED BY PETITIONER STS Adopted in substance in paragraphs 1 and 5. Adopted in substance in paragraphs 3 and 4. Adopted in paragraphs 6 and 7. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in substance in paragraph 5. Addressed in the Preliminary Statement. Adopted in paragraph 11, conclusions of law. Adopted in paragraph 33. Adopted in substance in paragraphs 24 and 25. Adopted in paragraphs 19 and 25. Adopted in substance in paragraphs 22 and 23. Adopted in paragraph 33. Adopted in substance in paragraph 17. Adopted in substance in paragraph 15. Adopted in substance in paragraph 16. Rejected as contrary to the evidence. 19-22 Rejected as unnecessary or subordinate. COPIES FURNISHED: Robert A. Routa, Esquire P.O. Box 6506 Tallahassee, FL 32314-6506 Frank Matthews, Esquire Kathleen Blizzard, Esquire P.O. Box 6526 Tallahassee, FL 32314-6526 Wayne E. Flowers, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director P.O. Box 1429 Palatka, FL 32178-1429 =================================================================
Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
