The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of April, 1983.
Findings Of Fact The Parties. Respondent, Citrus Recreational Marina, Inc. (hereinafter referred to as "Marina"), is a corporation. Marina is the applicant for the permit which is at issue in this proceeding. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with the responsibility for, among other things, wetland resource permitting. The Department also has responsibility, pursuant to an agreement with the Southwest Florida Water Management District (hereinafter referred to as the "Water Management District"), for Management and Storage of Surface Water permitting within the jurisdictional boundaries of the Water Management District. Petitioner, Save the Manatee Club, Inc. (hereinafter referred to as "Save the Manatee"), is a non-profit, Florida corporation. The stated purpose of Save the Manatee includes protection of the manatee and its habitat through the promotion of public awareness, research and lobbying efforts. Petitioner, Friends of the Greenway (hereinafter referred to as "Friends"), is an organization which promotes responsible environmental policy in Citrus County. Save the Manatee and Friends are "citizens" of the State of Florida. They filed a verified petition for hearing in this matter. They alleged in the petition that the proposed facility will injure, harm, or otherwise pollute the state's natural resources. Members of Petitioners observe, study and enjoy manatee in Citrus County, including waters that would be impacted by the proposed facility. Marina's Permit Applications, the Department's Notice of Intent to Issue and the Petitioners' Challenge. On March 28, 1995, Marina applied to the Department for a permit for Management and Storage of Surface Water. On March 10, 1993, Marina applied to the Department for a wetland resources (dredge and fill) permit. The permits sought by Marina are associated with Marina's plan to construct a marina facility. The marina is to be constructed within an existing dolomite mine pit (hereinafter referred to as the "Mine Pit"). On or about February 6, 1996, the Department entered a notice of intent to issue the permit sought by Marina. A copy of the draft permit, permit number 092278259 and MS092681199, was attached to the notice of intent to issue. On or about March 13, 1996, Petitioners filed a Petition for Formal Administrative Hearing challenging the Department's proposed decision to issue the draft permit. Marina's Proposed Facility. Marina's proposed facility is to be located in Citrus County, Florida. Citrus County is located on the west coast of Florida, north of Tampa, Florida, and south of the mouth of the Suwannee River on the Gulf of Mexico. As part of the proposed facility, Marina proposed to construct 256 wet slips (122 of which may be covered) on six floating docks, a boat ramp, a boat lift bay, a 63-boat dry storage facility, a convenience store with fueling and sewage pump-out facilities, a clubhouse, a stormwater facility and a parking area. The proposed facilities will also include a potable water system. The water system will provide drinking water to the clubhouse, bait stand, fueling facility, boat storage area and the marina docks. The proposed facilities will also include an on-site wastewater treatment facility. The treatment facility will consists of an aerobic system with on-site effluent disposal through drainfield lines into the soil. No sewage treatment percolation ponds will be included on the proposed site. The stormwater system for the proposed site will be separate from the wastewater treatment facility. The stormwater system will include the collection and treatment of stormwater in on-site basins prior to discharge into the Mine Pit. The system will be designed to retain the entire rainfall from a 100-year storm combined with wet detention and on-line systems involving percolation. All these systems have been designed to meet the design standards required by Chapter 40D-4, Florida Administrative Code. The post development runoff discharge rate for the proposed site is projected to be less than the current rate of runoff discharge on the proposed site. The proposed facility will not cause any increased flood risks on-site or off-site. No part of the surface water management system will be located within 100 feet of any public supply well. The fish cleaning stations included for the proposed facility will be located over land. Waste associated with fish cleaning will be collected for disposal. Wastewater from the stations will be directed into the wastewater treatment system for the proposed facility. Wastewater from boats at the proposed facility will directed to the wastewater treatment facility through two pumpout stations located near the proposed fueling facility. Solid waste from the proposed facility and boats utilizing it will be disposed of in trash receptacles located throughout the proposed site. They will ultimately be picked up by a solid waste hauler for disposal. Erosion around the Mine Pit will be controlled through the placement of 2,200 feet of rip rap, vegetation planting and other erosion control techniques. The Mine Pit where the proposed marina is to be constructed is located on the south side of the Cross Florida Greenway Waterway (hereinafter referred to as the "Greenway Waterway") (formerly known as the "Cross Florida Barge Canal"), approximately one half mile east of where U.S. Highway 19 crosses the Greenway Waterway. The proposed site is approximately 4.75 miles from where the Greenway Waterway empties into the Gulf of Mexico. The Mine Pit is U-shaped, approximately 31.4 acres in size, and has an average depth of -20 feet, with pockets of -33 feet in depth. Marina proposed to fill the Mine Pit to 13.0 feet NGVD, place 2,285 linear feet of rip rap, and dredge 4.75 acres of the Mine Pit to -13.0 feet NGVD. The waters of the northwestern corner of the Mine Pit are separated from the waters of the Greenway Waterway by a plug of land approximately 100 to 150 feet wide. Marina proposed to remove the plug to create an entrance from the marina to the Greenway Waterway. The removal of the plug will result in a lowering of the level of water in the Mine Pit by approximately 3 to 5 feet to sea level, the level of the water in the Greenway Waterway. Marina also proposed to excavate a flushing canal channel between the Greenway Waterway and the northeast corner of the Mine Pit. The boundary of the property on which the Mine Pit is located is approximately 100 feet from the Mine Pit at its closest location. The Mine Pit was excavated from lime rock and Ona fine sands; Pits and Udorthents (both manmade) soil types exist throughout the project site. Weedy vegetation dominates the historically disturbed upland area surrounding the Mine Pit. Saltbush (Baccharis halimfolia), marsh elder (Iva frutescens), dog fennel (Eupatorium spp.), marsh fleabane (Pluches spp.), and waxmyrtle (Myrica cerifera) exist along the Greenway Waterway. Southern red cedars (Juniperius silcicola) are scattered throughout the area. Cattails (Typha spp.) have invaded the edges of the Mine Pit. Ownership of the Proposed Site Property. Marina has no ownership interest in the property where the Mine Pit is located. Nor has Marina ever held such an interest. The proposed facility site is held in three undivided interests. At the time the permit applications were filed by Marina, Marina had an option contract to purchase the proposed site. At the time of the final hearing of this matter, the option contract was no longer in force. Marina had also been authorized in writing prior to filing the permit applications to act as agent for the owners of the site for purposes of seeking environmental permitting. It was stipulated at the time of the final hearing that two of the three undivided interest owners had authorized Marina to act as their agent for purposes of obtaining the permits at issue in this proceeding. At the time of the final hearing, the third undivided interest owner did not authorize Marina to act as its agent for any purpose. Marina is agreeable to a new condition being added to the draft permit by the Department requiring Marina to submit documentation to the Department before any development of the proposed facility is commenced proving that Marina has acquired interests in the proposed site necessary for it to carry out the permit conditions. It is the Water Management District's policy in implementing Rule 40D- 4.301(g), Florida Administrative Code, which requires applicants to provide reasonable assurances concerning their proposed projects, is to require the land owner to be the permittee. The Greenway Waterway and the Surrounding Area. The Greenway Waterway consists of natural and man-made waters formerly intended to be used as the Cross Florida Barge Canal. The waters of the Greenway Waterway are classified as "Class III" waters. The Cross Florida Barge Canal was deauthorized on January 22, 1991. In its place was created the Cross Florida Greenways State Recreation and Conservation Area. The State of Florida owns the majority of the lands within the Cross Florida Greenways State Recreation and Conservation Area. The state can, therefore, control development along the Greenway Waterway. A portion of the Greenway Waterway was constructed as part of the Cross Florida Barge Canal by digging a canal from a spillway at Lake Rousseau, east-northeast of the proposed site, to the Gulf of Mexico. This portion of the canal (hereinafter referred to as the "Greenway Canal"), is straight and was designed for a depth of 12 feet. The actual depth of the Greenway Canal varies and, in some locations, is 18 feet deep. The Greenway Canal is also approximately 250 feet wide. The Greenway Canal intersects the Withlacoochee River, which is located to the east of the proposed facility. Prior to the construction of the Greenway Canal, the Withlacoochee River ran from a spillway at Lake Rousseau to the Gulf of Mexico. After construction of the Greenway Canal, the portion of the Withlacoochee River which connects with the Gulf of Mexico was, and still is, separated from the Greenway Canal by an earthen berm. The western portion of the Withlacoochee River (hereinafter referred to as the "Upper Withlacoochee"), continues to run from Lake Rousseau for approximately 1.3 miles to the Greenway Canal and then runs to the Gulf of Mexico through the Greenway Canal. The depth of the Upper Withlacoochee varies from river bottom which is exposed at low tide to areas of approximately 20 feet. The depth of water, the speed at which water flows and the amount of aquatic vegetation in the Upper Withlacoochee varies depending on the amount of water released from Lake Rousseau through the spillway. For the past year, the rate of flow in the Upper Withlacoochee has been relatively high. There are currently two public boat ramps, but no marinas, located on the Greenway Canal. One of those boat ramps is in disrepair and the evidence failed to prove that it is in use. There are no marinas on the Upper Withlacoochee or the Greenway Canal. There is a Florida Marine Patrol station located on the Greenway Canal approximately one-half mile east of U.S. Highway 19. Whether the presence of the station will have any impact on the enforcement of speed limits in the Greenway Canal is purely speculative. Approximately 2 miles west of the proposed facility is an existing active mining operation owned by Independent Aggregates. Barges transport mine product along the Greenway Canal from the mine to the Gulf of Mexico. Another organization, known as "Holnam", has been permitted by the Department to construct a barge-loading facility opposite the Independent Aggregates' barge facility and mine. It is unlikely, however, that Holnam will actually begin operating barges on the Greenway Canal. A speed limit of 25 miles per hour has been imposed by the Department throughout the Greenway Canal. The speed limit was imposed to protect West India Manatee that utilize the Greenway Canal. The Upper Withlacoochee has been designated an idle-speed zone by local ordinance. Crab traps are located along the banks of the Greenway Canal for approximately four miles into the Greenway Canal from the Gulf of Mexico. Traps are generally anchored to the bottom by lines and are spaced approximately 100 feet apart, 20 to 15 feet from the bank. A channel extends for approximately 12 to 15 miles into the Gulf of Mexico from the mouth of the Greenway Canal. The channel is marked. There are obstructions and shallow water outside this channel. Prudent boaters will continue in the channel for approximately four to nine miles before turning north or south into the Gulf of Mexico. Operators of smaller boats and those with knowledge of the area are able, however, to navigate north or south closer to shore. Impact on the Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The West India Manatee is an endangered species, which means that it is in danger of extinction. Approximately 3000 manatees are found in Florida waters. Approximately half are located on the east coast and half on the west coast of Florida. There is little interchange between the two groups. The State of Florida is attempting to restore the manatee population to a size which will help to insure its survival as a species. In order for the manatee population to survive, human development and interaction with manatees must be managed. Manatee habitat needs to be preserved from development. Two of the most significant challenges to the survival of the manatee are the number of manatees killed by boats and the increasing number of boats in Florida waters. Collisions with boats is the greatest known cause of manatee deaths (approximately 25 percent). Manatee change locations frequently searching for food, drinking water, resting areas, potential mates and birthing areas. They also return to preferred habitat features. Manatee are attracted to areas that are calm and quiet for birthing areas. Shallow water, accessible from deeper water, is essential for birthing. After giving birth, the mother and calf generally remain in the area for some period of time, sometimes as long as months, until the calf is able to survive elsewhere. They will leave an area, however, if disturbed. Boat traffic, even at slow speeds, can cause disruption to mothers and young calves. Boat traffic can separate a mother and calf. There are approximately 300 manatee in the waters of northwestern Florida (from Tampa Bay to the Suwannee River), which includes the area of the proposed facility and Citrus County. This population has been increasing in recent years. Manatee in the waters of northwestern Florida require a stable source of warm water during the winter. During the winter ambient temperatures drop below the level at which the manatees' metabolism will sustain them. As a result of the need for warmer waters, most of the manatee in northwestern Florida spend the winter in Citrus County. Kings Bay, Crystal River and Homosassa all provide warm water locations for manatee. These sites are located to the south of the proposed facility. Kings Bay is the most important winter manatee habitat on the west coast of Florida. During the rest of the year, when waters are warmer, manatee leave their warm water, winter habitats to forage and investigate other habitat. Manatee that winter in the warm water sites in Citrus County generally migrate to the north. They travel to, and past, the mouth of the Greenway Canal, returning by the same general routes in the winter. Manatee also linger at the mouth of the Greenway Canal at the Gulf of Mexico because that area offers a combination of a relatively deep-water channel with adjacent shallow water and aquatic vegetation. Manatee use the waters of the Greenway Canal and the Upper Withlacoochee. The Greenway Canal is not, however, considered particularly good habitat for manatee. It has relatively deep water, steep banks, little fresh water and little vegetation of interest to manatee. In 1991 Citrus County adopted a Manatee Protection Plan as part of its comprehensive growth management plan. The Manatee Protection Plan does not identify the Greenway Canal as essential manatee habitat. The Manatee Protection Plan was adopted with the assistance of the Department. The Plan was based upon a compilation of manatee studies, marina inventory studies, and a comprehensive view of the county's waterway systems at the time the Plan was adopted. "Essential manatee habitat" is defined in the Manatee Protection Plan as "any land or water area constituting elements necessary to the survival and recovery of the manatee population from endangered status". Whether an area is "essential manatee habitat" is to be considered under the Plan as "a criteria for determining areas where dock facilities should be limited." The definition of "essential manatee habitat" for purposes of the Plan is different from the standard to be applied in by the Department in this case. The definition in the Plan is similar to the federal criteria considered and found to be different from that applicable to Department permitting cases in Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 651 (Fla. 3d DCA 1992). The Manatee Protection Plan contemplates that a master plan will be undertaken to establish the capacity of the Greenway Canal for boat and marina facilities. That master plan has not been developed. The fact that the master plan has not been formally undertaken, however, is of little consequence. The Department, due to the State's ownership of the land surrounding the Greenway Canal, has been able to consider possible uses of the Greenway Canal for boating and marinas without a formal master plan. The Manatee Protection Plan does not support a finding that the proposed facility will not have an adverse impact on the manatee. Although the waters of the Greenway Canal do not constitute good manatee habitat, the Upper Withlacoochee is considered good habitat, depending on the amount of water being released from the spillway at Lake Rousseau. Manatee have used the Upper Withlacoochee for feeding, resting and birthing. The Upper Withlacoochee has limited human activity, light boat traffic, sources of fresh water, a warm-water spring and aquatic vegetation. The Upper Withlacoochee has been used for birthing. Infant mortalities reported in the area suggest that the Upper Withlacoochee is used as a preferred birthing area. The rate of mortality suggests a higher rate of successful births. Aerial survey and mortality data also suggests that the Upper Withlacoochee and the Greenway Canal are utilized throughout the year by manatee. Greatest use is seasonal. Aerial survey data underestimates the number of manatee utilizing the Upper Withlacoochee and the Greenway Canal due to the lack of water clarity and due to the meandering course of, and vegetation along, the Upper Withlacoochee. Manatee mortality data concerning the Greenway Canal and the Upper Withlachoochee provides some indication of the fact that the number of manatee that travel through the Greenway Canal and the Upper Withlacoochee is not insignificant. While there was considerable evidence presented concerning whether the number of manatee that utilize the Greenway Canal and the Upper Withlacoochee is accurate or has been underestimated, based upon aerial survey data and manatee mortality comparisons, the critical fact proved by the evidence in this case is that a significant number of manatee do use the Upper Withlacoochee as habitat, including for birthing. The evidence also proved that, in order for manatee to use the Upper Withlacoochee, it is necessary that they travel the length of the Greenway Canal. Another critical fact proved by the evidence is to this matter is that manatee traveling to and from the Upper Withlacoochee must travel the Greenway Canal from the Gulf of Mexico past the proposed facility. The evidence was also unrefuted that increased boat traffic from the proposed facility will have the potential to adversely impact the manatee. That adverse impact will take the form of physical injury due to collisions and stress on manatee from increased human activity. The activity could reduce the use of the Upper Withlacoochee as habitat. What remains to be determined is whether the conditions of the draft permit will provide adequate assurances that the impact will not be contrary to the public interest. The Department's Bureau of Protected Species Management determined that, without the conditions to be added to the draft permit it suggested, the following impacts could be expected as a result of approval of the proposed facility: The probability of manatee/boat collisions increases with increasing boat traffic where boaters and manatees regularly inhabit the same waterways. While the current level of barge/vessel traffic does not appear to be a problem, increasing the amount of recrea- tional and commercial vessel traffic to the proposed levels in this narrow waterway is expected to adversely impact the endangered manatee. Barge trips may become more frequent, and barges traveling down the center of the canal drives manatees toward the edges of the canal. This increases the risk of manatee/recreational boat collisions, and increases the risk of these recreational boats driving manatees underneath, ahead of or behind traveling barges. The probability of lethal and sublethal propeller strikes increases. Also, there is not sufficient space for manatees between the canal bottom and the bottom of a fully loaded barge, with only one foot clearance as typical for loaded barges. The probability of a manatee being crushed will increase, and this impact is difficult to offset with conservation measures other than not allowing the activity. Page 2, Petitioners exhibit 7 and CRMI exhibit 10. The evidence in this case supports the foregoing conclusions. The increased boat traffic from the proposed facility, even if limited to sailboats and even if power boats are allowed at lower speed limits than currently in force in the Greenway Canal, may cause impacts with manatees due to the increased traffic and the use of the Greenway Canal by barges and recreational boats. It is possible that manatees, confronted by oncoming recreational boats and barges, may be forced into the path of barges and be crushed. Barges used by Independent Aggregates are approximately 72 feet wide and 250 feet long and are pulled or pushed by tugboats. The probability of this conflict taking place will be greater if barge use of the Greenway Canal is increased as proposed by Independent Aggregates. The greatest threat to the manatee of the proposed facility is the threat of death or injury as a result of cuts or blunt trauma from collisions of boats with manatees. This threat is primarily associated, however, with faster moving, power boats. Therefore, the extent of possible adverse impact on the manatee will be determined largely by the speed limit imposed in the Greenway Canal. To mitigate against the possible adverse impact on manatee, the Department has included certain conditions in the draft permit. Those conditions are found in Condition 6 of the draft permit and were recommended by the Department's Bureau of Protected Species Management. As a result of the Bureau of Protected Species Management's review of the proposed facility, it was recommended that the proposed facility not be approved if all of the conditions suggested by it were not included in the draft permit. All of the conditions recommended, except one, were included in the draft permit. The condition not included was one that provided that a violation of manatee speed zones would be grounds for revocation of the lease of any slip or dock space at the proposed facility. The lease revocation condition recommended by the Bureau of Protected Species Management was not included in the permit due to concern by the Department as to whether the condition could be legally imposed. The language of the memorandum of review of the proposed facility from the Bureau of Protected Species Management suggesting that the proposed project should not be approved unless all recommended conditions are accepted is standard language used by the Bureau and not intended to be strictly interpreted. The Bureau ultimately concluded that, despite its recommendation, it believes that the conditions of the draft permit are adequate to offset adverse impacts to the manatee. The Bureau's explanation is sufficient to eliminate any inference that otherwise may be drawn from its suggestion that the proposed facility should not be approved due to the exclusion of the permit condition concerning revocation of leases for speed zone violators. Condition 6 requires, among other things, that signs warning of possible manatee activity be displayed during construction, that personnel associated with the project be educated about the manatee, and that other measures designed to protect manatee during construction be followed. Due to the fact that most of the construction will take place in the enclosed Mine Pit, there should be little, if any adverse impact on manatee as as result of construction. Condition 6 also provides that permanent manatee warning signs and information concerning manatee be posted by the marina, and that a manatee awareness education program be established at the proposed facility. Condition 6 also limits the use of the boat ramp of the proposed facility to boats stored "on-site." The ramp will not be open to the general public. Finally, condition 6.l. provides the most important limitation of the use of the proposed facility. Condition 6.1 limits use of the proposed facility to sailboats and, therefore, prohibits the use of power boats: . . . until the applicant has provided documentation to the Department that manatee protection speed zones in the CFBC have been revised, approved by the Bureau of Protected Species Management, and posted in the CFBC. Occupancy of the facility by sailboats shall not be restricted. The limitation of the use of a marina to sailboats should adequately mitigate the adverse impacts to the manatee from the proposed facility. See Coscan, at 651. The effect of condition 6.l. is to allow Marina to obtain a modification of the draft permit after it is issued to allow power boats based upon events which may take place in the future. There are no guarantees that those events will result in reasonable assurances that the adverse impact to the manatee from power boat use at the proposed facility will not be contrary to the public interest. The speed zones which must be established and approved by the Bureau of Protected Species Management will be established, if at all, through rule- making procedures. See Rule 62N-22.011, Florida Administrative Code. The process would allow public input. Additionally, the outcome of the process would be subject to challenge under Chapter 120, Florida Statutes. Because of possible challenges to the efforts to impose speed zones, it is possible that speed zones adequate to reduce the adverse impacts to the manatee which would satisfy the public interest test applicable in this matter will not be adopted. The standards which the Department must adhere to in establishing speed zones are not the same standards applicable in this matter. In this matter, reasonable assurances must be given that there will not be adverse impacts to the manatee, a threatened species, contrary to the public interest. Establishing speed zones pursuant to other provisions of law will not insure that the reasonable assurances required for the issuance of the permit at issue in this case will be given. Although the resulting speed zones may be adequate to protect the manatee, there is no way to determine what kind of speed zones will be established. Without knowing the ultimate speed zones which may be established, or, more importantly, to know that the speed zones will meet the public interest test applicable in this matter, it is not possible to find the reasonable assurances Marina is required to provide at this time or at any time before the proposed facility is actually permitted. If reasonable assurances can be given that the use of power boats in the proposed facility will not be contrary to the public interest once speed zones are established, Marina or the owner of the proposed facility may apply for a permit modification. At that time the requisite reasonable assurances concerning power boat use can be determined. The provision of condition 6.l. allowing Marina to avoid seeking a permit modification at that time is, therefore, at a minimum, unnecessary, and at its worse, an effort to allow Marina to avoid having to provide the necessary reasonable assurances concerning the use of power boats. If only the impact on the manatee were considered in establishing speed zones, it could be concluded slow or idle speed should be imposed throughout the Greenway Canal and for some distance into the Gulf of Mexico in order to adequately reduce the adverse impact from the proposed facility on the manatee. Establishing speed zones, however, requires a consideration of other factors. The evidence in this case failed to address those factors sufficiently to recommend a condition to the draft permit concerning speed zones. Based upon the foregoing, it is concluded that reasonable assurances have not been given that there will not be unreasonable adverse impact to the manatee if the use of power boats at the proposed facility is allowed as provided in condition 6.l. of the draft permit. Other Public Interest Criteria. The evidence failed to prove that the proposed facility will adversely affect the public health, safety or welfare or the property of others. The evidence also failed to prove that the proposed facility will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The docks and other marina facilities will all be restricted to the Mine Pit, which is not now open to navigation. There is adequate width in the Greenway Canal to allow boats to exit the Mine Pit into the Greenway Canal and for boats and barges in the Greenway Canal to pass each other. Rip-rap to be placed along the Mine Pit shore and other shoreline stabilization activities will be adequate to prevent erosion and shoaling. Groundwater flow at the proposed site should not be adversely affected by the proposed facility, except as discussed, infra. The proposed facility should not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed facility. Recreational values (boating and fishing) should be enhanced as a result of the proposed facility. If condition 6.l. is not eliminated and power boats are allowed in the Greenway Canal, there are no assurances that the recreational value provided by the manatee will not be adversely impacted. The proposed facility is intended to be permanent. The evidence failed to prove that the proposed facility will adversely affect or enhance significant historical or archaeological resources under the provisions of Section 267.061, Florida Statutes. If condition 6.l. is not modified to eliminate the use of power boats automatically upon the establishment of speed zones, there are no reasonable assurances that the current condition and relative value of functions being performed by the Greenway Canal and the Upper Withlacoochee will not be adversely affected by the proposed facility. Otherwise, the proposed facility should not have an adverse impact on current conditions and relative value of current functions of the area. Groundwater Quality Standards. The general geology in the area of the proposed facility and the Greenway Canal is known as karst terrain. Karst terrain is geology formed by the solution of limestone over millions of years. Sequential episodes of exposure of the Floridan aquifer, which underlies the area, occurs in karst terrain as the result of the natural formation of sink holes. These sink holes impact the movement of groundwater. Information exists to reasonably describe the hydrogeology of the area in "regional" terms. There is insufficient information generally available about the specific hydrogeology of the proposed site or the immediately surrounding area. Underlying the entire area and the proposed site in particular is the Floridan aquifer. The properties of the Floridan aquifer in coastal Citrus County, including the proposed site, can vary enormously over relatively short vertical distances. This variability impacts the movement of groundwater. The groundwater under the proposed site is classified as G-II. The terms "potentiometric surface" are used to describe the level to which groundwater will rise above sea level. The higher groundwater rises above sea level, the thicker the layer of underlying drinkable water should be before reaching an interface between drinkable and undrinkable water. In central Citrus County, the potentiometric surface is relatively low and flat at approximately 5 or 6 feet above sea level. The resulting interface between drinkable and nondrinkable water is found at 200 or more feet. Due to natural geological conditions, moving to the northwest of Citrus County, including the Greenway Canal area, potentiometric levels are higher. Therefore, thicker layers of drinkable water should be found around the proposed facility site and the Greenway Canal than in central Citrus County. Because of higher potentiometric surface in the area of the Greenway Canal, the layer of drinkable water would be expected to continue beyond 120 feet below the surface. Construction of the Greenway Canal has resulted in the intrusion of saltwater from the Greenway Canal into the groundwater. It has also resulted in the upconing of mineralized (sulfate) waters from deeper to less deep levels within the Floridan aquifer. These impacts have been significant with regard to the chloride levels (from the saltwater) and sulfate upconing. The impact of the construction of the Greenway Canal on saltwater intrusion and sulfate upconing is the result of the lowering of the surface waters to sea level in the Greenway Canal. The lowering of the level of water in the Greenway Canal has had the effect of decreasing the potentiometric surface and, consequently, reducing the thickness of the layer of drinkable groundwater. Saltwater has intruded along and beneath the Greenway Canal. The extent of this intrusion is represented graphically on Petitioner's exhibits 13 and 14. Saltwater intrusion has occurred primarily as a result of downward leakage of saltwater traveling up the Greenway Canal. The saltwater intrusion has been localized around the Greenway Canal. The wedge of saltwater intrusion has reached to approximately where U.S. Highway 19 crosses the Greenway Canal, approximately one-half mile east of the proposed site. Although it is "theoretically" possible that the saltwater wedge could continue to move along the entire length of the Greenway Canal, the evidence fails to support such a conclusion. Due to freshwater discharges from Lake Rousseau, the evidence supports a conclusion that the saltwater wedge will not move further eastward to any significant extent. The lowering of the waters of the Greenway Canal to sea level has had the effect of bringing sea level elevations to the Floridan aquifer several miles further inland than had been the case before construction of the Greenway Canal. Groundwater adjacent to the Greenway Canal, which is at levels higher than sea level, has discharged into the Greenway Canal. This has caused a lower groundwater level and the movement upward of groundwater. Similar effects have occurred naturally along the Withlacoochee River. As groundwater rises it comes into contact with a geologic unit which contains calcium sulfate. The sulfate mixes with the groundwater causing the "mineralized" groundwater. While the change in surface waters in the Greenway Canal was quick, the change in groundwater quality from saltwater intrusion and sulfate upconing has taken place only as fast as groundwater in the area flows. Generally, groundwaters flow very slowly. The impact of the Greenway Canal on upconing of sulfates will continue over time. Mineralized waters will continue to move upward and, perhaps, laterally away from the Greenway Canal. Pockets of mineralized waters (containing sulfates) can be found naturally occurring around the proposed site. Sulfate enriched groundwater in coastal areas naturally move toward, and discharge into, the surface waters along the coastal boundary. This process occurs along the Gulf of Mexico and the shoreline of Citrus County. The construction of the Greenway Canal has disrupted this natural process. The Mine Pit, when it was in use, was dewatered to different levels at various times. The dewatering took place for varying periods of time. Usually, the Mine Pit would be completely dewatered for a period of approximately three months. On one occasion, the Mine Pit was dewatered for a period of two years (1989 to 1991). It was dewatered to allow the removal of dolomite. The Mine Pit was allowed to fill back up with water after each dewatering. The dewatering of the Mine Pit was regulated by the Water Management District. The permit allowing dewatering of the Mine Pit required that the permit holder mitigate for adverse impacts of dewatering, including the inducement of natural contaminants into the aquifer. The evidence failed to prove, however, the extent of adverse impacts of the dewatering or whether the permit holder actually mitigated against any such adverse impacts. The lowering of the water level in the Mine Pit caused some upconing of sulfates for the same reason that the digging of the Greenway Canal did. Lowering the water level in the Mine Pit lowered the potentiometric level. The evidence, however, failed to prove the extent of the impact or how long the impact lasted. The lowering of the water level of the Mine Pit to sea level by connecting the Mine Pit to the Greenway Canal as proposed by Marina will have the same general impact as the digging of the Greenway Canal on the upconing of sulfates. Unlike the impact of the dewatering of the Mine Pit, the proposed modification will be permanent. Lowering the water level will have the same type impact for the same reasons that the digging of the Greenway Canal caused upconing. The potentiometric level will be permanently lowered; the layer of drinkable water will be permanently decreased. The evidence failed to prove that the lowering of the water level of the Mine Pit to sea level as a result of the proposed project will have the same impact on saltwater intrusion. This impact is less likely because the Mine Pit is four and a half miles inland from the Gulf of Mexico. The upconing of sulfates as a result of the construction of the proposed facility will cause the levels of sulfates found in some portion of the currently drinkable layer of groundwater to exceed water quality standards. The area impacted will consist of groundwater which would otherwise have been expected to be potable. Comments concerning the proposed facility were provided to the Department by the Water Management District. By letter dated August 16, 1995, the Water Management District informed the Department that it was anticipated that the proposed facility would result in saltwater intrusion and upconing of mineralized water and that the area's groundwater could be expected to be degraded inconsistent with Water Management District rules. In response to the Water Management District's comments, Marina agreed to undertake a hydrogeologic study to gather site specific information to address those concerns. As a part of Marina's study, one monitoring well was drilled on the proposed site. The well was drilled to a depth of 450 feet in order to gather data concerning water quality at various depths. In early 1996, the Water Management District concluded that the results of the study undertaken by Marina had resolved its concerns. The test well was drilled to the south of the Mine Pit, approximately 2500 feet from the Greenway Canal. The water quality tests run on water taken from the test well reflected a sharp change in water quality at a depth of approximately 120 feet. The water below that level contained high levels of sulfates: 552 milligrams per liter of sulfate. Immediately above the high sulfate waters, low sulfate levels (12 milligrams per liter) were found. This result is contrary to what would be expected to be found based upon the higher potentiometric surface in this area of Citrus County. Because the potentiometric surface is higher in the area, it would be expected that the layer of drinkable groundwater would be considerably higher than 120 feet. The findings concerning the thickness of the drinkable groundwater found at the test well are consistent with the conclusions concerning the impacts of the digging of the Greenway Canal. As a result of the digging of the Greenway Canal and the lowering of the water level to sea level, the resulting decrease in the potentiometric surface has caused the upconing of mineralized waters and a decrease in the layer of drinkable groundwater. The Department and Marina have not disputed the fact that drinkable groundwater will be impacted by the upconing of mineralized waters (sulfates) as a result of connecting the Mine Pit with the Greenway Canal and lowering the level of water in the Mine Pit to sea level. The Department and Marina, however, have suggested that the extent of the impact of the lowering of the water level in the Mine Pit will not extend more than 100 feet from the Mine Pit and will be limited to the proposed site. The evidence failed to support this position. The unplugging of the Mine Pit will have the effect of increasing the area of water below sea level in the area by 12 percent of the size of the area of the Greenway Canal. Data from test wells around the Greenway Canal and other data has indicated that the upconing of mineralized water as a result of the lowering of the water level in the Greenway Canal has extended considerably more than 100 feet from the Greenway Canal. In light of the fact that the Mine Pit is equal in surface area to 12 percent of the surface area of the Greenway Canal, there is reason to be concerned that the area of impact from the lowering of the water level in the Mine Pit will also be significant. In light of the foregoing, and due to the variability of the geology of the area, the data from a single well on the site is of questionable value. Data from a single well simply does not provide the information necessary for Marina to provide reasonable assurances that the impact on groundwater from its proposed facility will be limited to an area of 100 feet from the Mine Pit. There is simply not enough data concerning the Mine Pit to conclude with any reasonable assurance that the upconing of mineralized waters (containing sulfates) will be limited to an area of 100 feet around the Mine Pit. Because of the size of the Mine Pit in relation to the Greenway Canal and the impact on upconing from the Greenway Canal, it is more likely that the impact of upconing will exceed 100 feet. A log of geologic characteristics of the test well was maintained. A confining unit or layer was found between the high-sulfate and low-sulfate waters at between 110 and 120 feet below the surface. The evidence failed to prove, however, the extent to which the layer may extend horizontally from the well location. In light of the general geology of Citrus County and the region around the proposed site, insufficient data exists to reach any conclusion about the extent of the confining layer. Establishing the extent of the confining layer would require more extensive (and costly) study of the site. The existence of a confining layer would also have no significant impact on the degree of upconing as a result of lowering the water level in the Mine Pit. I. Surface Water Quality Standards. Petitioners stipulated that the proposed facility would not violate surface water quality standards except with regard to the standard for chloride. Because of the flow of fresh water from Lake Rousseau and the flushing canal to be constructed at the proposed site, reasonable assurances have been given by Marina that there will be sufficient flushing of the Mine Pit to preclude a violation of chloride standards for surface waters. The evidence presented by Petitioners concerning the possibility that the salt water wedge resulting from the construction of the Greenway Canal may extend landward and eventually into the Mine Pit was too speculative and "theoretical".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order denying Citrus Recreational Marina, Inc.'s application for wetland resource permit (dredge and fill) and the application for Management and Storage of Surface Waters Permit. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996. COPIES FURNISHED: Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Peter Belmont, Esquire 511 31st Avenue, North St. Petersburg, Florida 33704 Wayne Hrydziusko Assistant General Counsel Douglas H. MacLaughlin Assistant General Counsel State of Florida, Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Douglas Roberts, Esquire HOPPING, GREEN, SAMS & SMITH, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake. According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae. Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca. A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: * NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document. Lake Tresca Copelan Property Pettengill Property Petitioners' Exhibit No. 9. (Legend supplied.) The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks. After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated: Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them. I have taken the liberty of attaching copies of relevant sections of Florida Statutes and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8. Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits. At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan: I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at which you would like to put in a drive way. Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners. Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know. I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees. I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7. Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him. In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species. On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately 15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8. On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4. Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6. On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1. DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part: Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway] In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period. * * * In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action. Respondent does not waive his right to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings. The Department, for and in consid- eration of the complete and timely perfor- mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order. * * * 9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161, Florida Statutes. Joint Exhibit No. 2. In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer. DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi- sion No. 1 by R.E.P. 13 August, 1981; located in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10. According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it. APPLICATION INACCURATE In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was 80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent. Under the "Remarks" section of Mr. Copelan's application appears the following: Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9. In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER. Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10. PRIVATE PROPERTY RIGHTS Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake. DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway. OILS AND GREASES Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat. Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road. Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives. BIOLOGICAL EFFECTS Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca. Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web. The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days. DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982 COPIES FURNISHED: Randall E. Denker, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Gordon D. Cherr, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Webb, Esquire Post Office Box 385 Destin, Florida 32541 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DWYNAL and IONA PETTENGILL, Petitioners, vs. CASE NO. 82-294 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN, Respondents. /
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
The Issue The issues in this proceeding involve whether the Respondent, St. Joe Paper Company ("St. Joe"), is entitled to a "dredge and fill permit" authorizing it to construct a marina for recreational boats, containing 84 boat slips, along the eastern shore of the St. Johns River in St. Johns County, Florida. Embodied within that general consideration are issues involving whether St. Joe, in the construction and operation of the marina, can comply with water-quality parameters embodied in Chapter 17- 3, Florida Administrative Code, for Class III waters of the State, Section 403.918(1), Florida Statutes, as well as the public interest standards of Section 403.918(2), Florida Statutes, and the standard concerning "cumulative impact" embodied in Section 403.919, Florida Statutes.
Findings Of Fact The applicant, St. Joe, seeks to construct and operate a recreational boat marina, consisting of a single, main pier, 12 feet wide and extending some 850 feet waterward in a westerly direction from the shoreline of the east bank of the St. Johns River in St. Johns County, Florida. The main pier will join a terminal pier extending approximately 575 feet in a general north/south direction parallel to the shoreline of the St. Johns River, perpendicular to and abutting the longer main pier. Extended in a landward or easterly direction from the terminal pier structure will be four (4) individual "finger piers" ranging from 119 to 305 feet in length. Located along the individual piers and along a portion of the main pier near the waterward end of it will be 84 slips for recreational-type boats. Additionally, a breakwater system will be suspended along the outer perimeter of the terminal pier and northernmost and southernmost individual piers in order to reduce wave action and its effect on boats in the interior of the marina. Additional details concerning the marina design and operation are contained in the findings of fact below. The Site The site of the proposed marina is on the eastern shore of the St. Johns River in St. Johns County, Florida. At that point, the St. Johns River is almost two miles wide, being approximately 10,000 feet from shoreline to shoreline. The proposed marina site encompasses approximately 1,100 linear feet of river bank frontage. All of the adjacent upland property is owned by St. Joe, and St. Joe owns extensive additional river frontage to the north and south of the marina site. The nearest properties not owned by St. Joe are located 3,500 feet to the north of the site and 1,500 feet to the south of the site. The site is located approximately two miles north of Hallowes Cove, a relatively pristine, diverse and productive marine habitat. The site is characterized, landward of the terminal end of the pier and waterward of the upland, by an unvegetated "near shore area or tidal zone" which extends approximately 50 feet from the mean high-water line of the river to the mean low-water line. Waterward of this zone and extending to a depth of approximately two feet is a system of grass beds, (vallisnerida), commonly known as "tape grass". The grass beds extend approximately 200 to 250 feet from the shoreline. Waterward of the grass beds is an unvegetated area with a gradual slope to a depth of approximately six feet. From the six-foot contour of the river bottom, a relatively precipitous slope begins, extending to depths which exceed 19 feet. In this zone, there are no grass beds. Further waterward and extending beyond the most waterward extent of the the marina site, the river bottom rises somewhat to depths of 13 feet, 12 feet and 11 feet, in the direction of the center of the river. The river bottom substrate in the area of the marina is composed primarily of sand. This includes some shell and other coarse materials, with minor amounts of silt. In fact, organic silt is a very small portion of the bottom sediments, consisting, at a depth of four and one-half feet, of less than 1% silt and at a depth of 15 feet of less than 6% silt content. The present water quality prevailing at the marina site is good, and the benthic habitat in the general area is healthy and diverse. The most landward boat slips proposed at the marina will be located at a distance of approximately 275 feet from the most waterward extent of the grass beds. These most landward slips will be located in depths of approximately eight feet. Access to the marina will be from the north and south in defined channels marked on the west by the end of the individual piers and on the east by channel markers located at the depth contour of minus six feet. That is, the six-foot depth will be the most shallow portion of the channel marked by the channel markers, so that boats will not be permitted to navigate the shallower portion landward of the channel markers insofar as the marina's enforcement program can insure that. The approximate width of the northern channel is 75 feet, and the width of the southern channel is 50 feet. Due to the precipitous drop in depth beyond the contour of minus six feet, the average depth of the channels is 10 to 12 feet. The majority of the boat slips, as well as the basin of the marina, will be located in depths of between 10 and 18 feet. The consultant and expert witness who designed the marina, Erik Olsen, established that the length of the main pier and the location of the most landward of the boat slips and the location of the channel markers are all part of a design and plan intended to insure that marina and boat activity within the marina occur well beyond the extant grass beds and waterward of depths of six feet, to insure that no damage to the grass bed habitat area is occasioned by propeller scouring, "prop-wash", or grounding of boats. Other design measures are also intended to preclude boaters from entering the shallow depths and grass bed areas. Two tiers of signs will be located between the marina basin and the most waterward extent of the grass beds. First, regulatory buoys and signs are proposed to be located at the contour of minus four feet and will establish a "manatee protection zone" landward of that contour. The evidence reveals, however, that a safer contour for the manatee protection zone boundary to be established by the applicant would dictate placing the regulatory warning signs concerning the manatee protection zone at the same contour, minus six feet of water, where the channel markers will be located. This is because the marina will serve boats of up to 4.5 feet in draught. Secondly, a tier of signs will be located approximately ten feet waterward of the most waterward extent of the grass beds warning boaters that aquatic grass beds exist landward of the signs and that prop dredging and boat operation is prohibited. Such warnings at the locations found above should be mandatory conditions to any grant of the permit. A specific, agreed-upon condition is already in the draft permit issued by the Department prescribing the size and lettering of these signs and other design details. A railing will extend, as proposed by the applicant, along the main pier between the slips and the shoreline to discourage boaters from mooring along the main pier, landward of the slips. The evidence establishes that in order to more adequately insure protection of the manatee habitat area and the grass beds, a mandatory condition in boat-slip rental leases should be inserted to absolutely prohibit boaters from mooring along the main pier, landward of the boat slips. Because of the currents and significant water depth prevailing at the marina site, the marina construction will require no dredging nor will operation and maintenance of the marina require any dredging on a continuing basis. Additionally, in the interest of protecting water quality, no fueling facilities or boat fueling will be permitted at the marina at all; and the grant of a permit should be mandatorily conditioned on this basis. Neither will any boat maintenance or repair be permitted at the marina, including no hauling of boats or scraping or painting of boat bottoms. This condition should be clearly pointed out to users of the marina by appropriate warning signs regarding the prohibition against boat maintenance and repair, including warnings concerning the proper methods of disposal of used oil and other petroleum products. The marina will feature pump-out facilities for boat heads and bilges. The pump-out facilities will consist of a central pumping system in which waste is removed from the boats, transported by pipeline to an upland, central waste water collection and treatment system. No holding tanks or other storage of wastes will be located at the piers. The pump-out facility will serve not only the boat heads but also boat bilges in order to prevent contaminants, such as oil and boat fuel from entering the State waters involved. The piers will feature trash collection containers of appropriate number, size and location on the piers so as to provide convenient trash disposal for each boat slip. The piers will also feature plastic modular dock boxes to preclude boaters from randomly storing materials and equipment on the piers. No fish cleaning will be permitted on the piers at all, but rather must be accomplished on the uplands, with disposal of related wastes in the upland collection system. A "no wake" zone will be established in an area extending 500 feet north and 500 feet south of the marina. The "no wake" zone will be marked pursuant to requirements of the Florida Marine Patrol. The marked "no wake" zone should also extend waterward of the farthest waterward extent of the marina, as well as 500 feet north and south of it. Only private, recreational boats will be moored at the marina. All commercial boats will be prohibited. The marina will serve a Yacht Club to be developed by St. Joe in conjunction with the marina. Only members of the Yacht Club and their guests will be permitted to use the marina. This will assist with enforcement of the various conditions on marina operation and maintenance by the owners as to the boat-slip lessees and their guests. This and all other conditions should be enforced by mandatory restrictions in the boat-slip leases. Likewise, the applicant has agreed to permit no "liveaboard" boats at the marina in order to avoid the possibility of sewage or other contaminants entering the State waters from liveaboard boats. The upland facilities will include restrooms, and signs should be appropriately placed on the piers to advise boaters and boat owners and operators of the availability of restroom facilities. The marina will not feature fueling facilities; however, St. Joe will maintain pollution containment supplies and equipment at the marina sufficient to contain any potential fuel or other petroleum spills from catastrophic events, such as the rupture of a boat fuel tank. Expert witnesses for St. Joe established that a "management and operational plan" designed to enforce the provisions enumerated above will be enacted by the applicant. The management and operational plan includes three mechanisms of enforcement: Warning signs. Boat-slip lease agreements which must incorporate all restrictions found to be necessary herein. These will contain an enforcement provision providing for mandatory eviction from use and lease of the marina facilities for any breach of those conditions by lessees or their guests. Management personnel will be employed on the marina property to enforce all restrictions and conditions designed to insure environmentally-safe operation and maintenance of the marina, and such personnel should be employed during all operating hours of the marina, not just during daylight hours, as proposed by the applicant. Signs will be posted at conspicuous locations at the marina and at the upland facilities of the Yacht Club informing boaters of the marina rules and prohibitions. The signage will be visible to Yacht Club members and their guests using the marina, and members' guests will be required, upon mooring at the marina, to register and to review the rules and prohibitions. Boat-slip lease agreements at the marina will incorporate these marina rules and prohibitions. Under the lease agreements, a violation of the marina rules or prohibitions by a member or guest will be considered a breach of the lease and will result in revocation of the lease and removal of the member's boat from the marina. A dock master will be employed at the marina to supervise the operation and maintenance of the marina and will be assisted by dock hands and other personnel in order to see that the conditions and restrictions referenced herein are enforced. The applicant has proposed such personnel being employed during daylight hours. However, in order to insure that the standards for operation and maintenance of the marina and boats using it will be enforced so as to avoid water-quality violations and violations of the public interest parameters delineated below, the permit grant should be conditioned upon such personnel being employed during all operating hours of the marina, whether daylight hours or not. If this is accomplished, the enforcement mechanisms outlined in the management and operational plan will reasonably insure enforcement of the marina's rules, prohibitions and conditions on any grant of the permit and likewise reasonably insure that water-quality and public interest standards are not violated. Upland Facilities The upland and Yacht Club facilities to be developed in conjunction with the marina will be located on approximately seven acres adjacent to the marina site. The Yacht Club and related facilities will include a clubhouse, parking, and a storm water treatment system which will serve the upland facilities. St. Joe has obtained a conceptual permit for the management and storage of surface waters for the proposed upland improvements, including the Yacht Club. It will also seek a permit for the storm water treatment system, itself. St. Joe, through its consultants, has investigated and opined that the installation of the proposed upland facilities are feasible and can comply with applicable regulatory criteria and is pursuing the necessary permits and approvals from local governments and state agencies. It will insure that all such is accomplished prior to initiation of construction of the Yacht Club facilities. The precise configuration and design of all upland facilities will be dictated by applicable local ordinances and the requirements of State regulatory agencies. Marina Impacts The applicant/Respondent and the Petitioners are in essential agreement, through the testimony of their witnesses, regarding the general potential impacts which may be posed by marinas in a general sense, when located in proximity to environmentally-sensitive areas. Concerning anticipated impacts of this marina at the subject site, however, St. Joe presented the testimony of three expert witnesses, as well as a hydrographic study. It was thus established that violations of the pertinent water-quality statute and rules and the public interest standards contained in the statute referenced herein will not be violated. The Petitioners, although presenting both lay and expert testimony regarding the water quality and habitat type and quality in the general area of the site and the general impacts that can be caused by marinas in such areas, presented no expert testimony or studies regarding the anticipated impacts of this particular marina, as designed and configured by the applicant, on the subject site and aquatic habitat. Water Quality Considerations Marinas are potential sources of pollutants which may adversely impact water quality. Different sources at a marina may generate different pollutants; and in this case, testimony addressed these potential pollutant impacts. The totality of the expert testimony taken at hearing establishes that the marina will not likely cause a violation of applicable water-quality standards. One witness for the Petitioners, Bill Watkins, was accepted as an expert in water quality. In describing potential impacts of the marina, however, he only opined that there "could be some effect on water quality"; however, he did not specifically establish adverse effects on water quality which could be anticipated or reasonably expected regarding violations of applicable standards. Mr. Watkins acknowledged: "As to whether or not that degree of pollution, and that's what we're talking about, degree of impact, would be something that would be, have a significant degradation effect, I could not answer without further site specific studies." Mr. Watkins further described the type of site specific information which would be required for him to make a proper assessment of water-quality impacts, including hydrographics and the nature of the sediments existing at the site. Other witnesses for the Petitioners similarly declined to opine regarding violations of the water-quality standards because site specific information was not available to them. Dr. DeMort, for example, explicitly declined to offer an opinion regarding water-quality violations. The opinions and testimony of the expert witnesses on water quality presented on behalf of St. Joe, as well as by the Department, are accepted in establishing that no water-quality violations by the construction and operation of the marina are anticipated. The reasonable assurance that water-quality violations will not occur through the construction and operation of the marina is illustrated by the unrefuted evidence concerning the hydrographics by which the site is characterized. A knowledge of site hydrographics is necessary to accurately determine potential water-quality impacts. A hydrographic study was prepared by St. Joe through the auspices of its consultant, Olsen Associates Incorporated. The experts who prepared that study testified on behalf of St. Joe at hearing, and a Department witness who reviewed the study testified by deposition. None of the Petitioners' expert witnesses addressed the subject of site hydrographics other than to note that they were an important consideration. Mr. Buckingham was accepted as an expert witness in the area of marine engineering with emphasis on hydrographics. He testified regarding the hydrographic study prepared and submitted by St. Joe. The study involved the collection of data at the site, including the gauging of water surface elevations over a two-day period in December of 1988; the comparison of those elevations to predicted elevations based upon historical data; a measurement of current velocities at the site; a dye study to assess the flow regime at the site; and the gathering of depth soundings and sediment samples to confirm the bathymetry and nature of bottom sediments at the site. The hydrographic study also involved the analysis of the data collected at the site. Hydrographics at the site are composed of two components, the transport of a pollutant by advective currents and the dispersion or diffusion of a pollutant within the water column. The physical transport by advective currents dominates the hydrographic circumstance prevailing at the marina site. A pollutant introduced at the site is more likely to be physically transported away from the site, in addition to being merely dispersed through the water column at the site. This is because of the relatively high current velocities prevailing. Both the transport and dispersion components were analyzed in the study to determine the time and distance necessary to reduce an initial concentration of a hypothetical pollutant to 10% of its initial concentration. A pollutant introduced at the site would be reduced to 10% of its initial concentration in less than seven minutes and within 400 feet of the site on the ebb tide and within 300 feet of the site on the flood tide. Moreover, the "plume" of this hypothetical pollutant would occur in a longshore direction parallel to the shore, as opposed to a direction toward the shore and would be of comparatively narrow width (approximately 30 feet). The hydrographics of this site are such that a complete water exchange will occur in 20 to 30 minutes at any point during the tidal cycle. The evidence thus demonstrated that the site is extremely well flushed by tidal currents. In his deposition, Ken Echternacht, of the Department, testified that data in the hydrographic study was realistic in his experience and that he had no questions or concerns regarding the data and methodology used to confirm that data. In addition to Mr. Buckingham's testimony and the study, itself, the testimony of Dr. Echternacht established that flushing is of no concern and is thoroughly adequate at the site. Dr. Echternacht is the Department's hydrographic engineer, whose function is to review all dredge and fill permit applications which may have impacts upon the hydraulics of surface water systems. He has reviewed approximately 1,500 dredge and fill permit applications. His testimony and that of Mr. Buckingham is accepted, as is that of other Department expert witnesses in establishing the excellent flushing characteristics of the site and that the construction and operation of the marina will not adversely affect the present hydrographic situation at the site, as that relates to establishing that no water quality violations will occur. All marinas are potential sources of pollutants. The first to be addressed involves the installation of the pilings themselves during the construction of the marina. This is a potential source of turbidity. Turbidity involves the suspension of bottom sediments and substrate material in the water column, which can pose, among other problems, the retardation of light penetration through the water column which can have an adverse impact on photosynthesis in marine grass beds. In extreme cases, it can cause the destruction of grass beds through killing of the grass by lack of adequate light penetration, as well as the smothering effect of sediments being deposited upon grasses. The method to be used by St. Joe in installing the pilings will be by "jetting" them into the bottom of the river initially and then driving the pilings into the river bottom to the required depth to support the piers. Witnesses for St. Joe and the Department established that this method will constitute an adequate safeguard to be employed during construction to minimize any turbidity. Any temporary or local turbidity caused by the installation of the pilings will be transitory and will pose no significant water-quality violation; however, turbidity curtains will, be employed, if necessary, by the applicant to control any such turbidity during construction. Another potential source of turbidity at a marina involves the dredging, washing or disturbance of the river bottom caused by boat propellers or boat keels. The evidence demonstrated that the risk of such "prop dredging" or wash at this marina will be negligible due to the design features and conditions at the site, including the channels and channel markers, and particularly by the depth of waters prevailing at the site. The marina basin and boat slips are located in water of sufficient depth to prevent prop dredging or wash. The =average depth of the entrance channels is between 10 and 12 feet. Maneuvering within the marina basin will occur in depths of 10 feet or greater. Although the most landward boat slips are located in depths of approximately eight feet, the average depth within most slips is approximately 10 to 12 feet. These depths are based upon the bathymetric survey of the site and confirmed by random soundings performed during the course of the hydrographic study in evidence. Further, these depths are "mean low water" depths. Mean low water reflects the "lowest expected level" within a 29-day tidal epic. The "mean lower low" level is the lowest expected level over the course of a year. That level prevailing at the site, according to the study, is 0.1 feet lower than mean low water. The maximum draught of boats expected to be moored at the marina is 4.5 feet. Thus, the depths in the marina will allow ample clearance between propellers and keels and the river bottom. The required clearance between boat bottoms and propellers and the river bottom can further be assured by proper placement of boats in the boat slips in the leasing process and in the assignment of boat slips to casual, temporary users of the marina. In other words, the larger boats will be assigned to the deeper, more waterward slips. Other measures include warning signs, which should be placed along the six-foot depth contour, along the landward edge of the entrance channels and beyond the waterward extent of the grass beds. This will insure that boaters do not stray into shallow-water, aquatic habitat areas. A second factor in determining the potential for prop dredging at the marina is the nature of the sediments themselves. Four witnesses, including those testifying for the Department and for the Petitioners, established that the sediments at the site are primarily sand-based, with minimal organic silt content. The sandy nature of the sediments minimizes the potential for turbidity caused by prop dredging or prop washing (hydraulic currents created by propeller operation) because sand, by its density, mass and weight, tends to settle out to the bottom much quicker if it is suspended in the water column. Even if prop dredging did occur at the marina, generating turbidity, the high flushing characteristic of the site would quickly transport and disperse any such turbidity and render it undetectable and likely prevent its deposition on the grass beds. A potential source of pollutants at a marina is boat fuel. Expert witnesses for the Department and the applicant established that the design and operational features of the marina, primarily the absence of any fueling facilities, will minimize or eliminate the potential for pollutants generated by fueling operations. Another potential source of pollutants at a marina is waste from boat heads and bilges generated by flushing boat heads or pumping out of bilges with bilge pumps. Expert witnesses for St. Joe, as well as the Department, established that the design and operational features with which this marina will be characterized will minimize or eliminate the potential for such pollutants to be generated because liveaboard boats will be prohibited, and the pumping out of heads and bilges will also be prohibited because of the conditions agreed to by the applicant for a grant of this permit. Another potential source of pollutants at a marina is the use of anti-fouling paint used on the bottoms of boats and the periodic scraping and repainting of boats. Expert witnesses for the Department and the applicant established that the operational features and design of this marina will minimize the potential for pollutants from this source because boat painting, sanding, and scraping and other operations attendant to boat painting will be absolutely prohibited at the marina. Finally, another potential source of pollutants would be trash and garbage materials. The potential for pollution from this source will be minimized by the use of trash containers and dock boxes located at frequent intervals around the piers and boat slips, as well as the instructional signs to be placed on the piers and slips by the applicant and the publication of marina rules in order to inform boat operators and guests of the necessity to dispose of trash in the proper containers. It has thus been established that the design and operational characteristics of the marina and conditions to be imposed thereon will minimize or eliminate the potential for pollutants to be generated and placed in the surface waters at the site. The marina will not occasion violations of applicable water-quality standards. Any pollutants which might be deposited in the surface waters at the site will be quickly transported and dispersed so as to be undetectable at the marina or in the vicinity of the marina because of the critical role played by the hydrographics prevailing at the site. Public Interest Impacts Much of the testimony at hearing regarding impacts upon the various public interest standards, including wildlife and habitats, focused upon the grass beds, and the benthic communities prevailing in deeper water at the site, as well as the fact that the site is used by manatees. Dr. Quinton White was accepted as an expert in biology and biological impacts of marina construction and operation. He testified on behalf of the applicant. His testimony and that of other expert witnesses offered by St. Joe and the Department established that there would be no adverse impact on benthic communities and organisms, including manatees, caused by the construction and operation of the marina. The Petitioners called expert witnesses on the issue of impacts on wildlife. Mike Allen, a Florida Game and Fresh Water Fish Commission staff member, testified that he was not really qualified as an expert in fisheries or benthic communities but, rather, in terms of terrestrial species which are not involved in this proceeding. Lawson Snyder, another Florida Game and Fresh Water Fish Commission staff member, was accepted as an expert in fisheries biology on behalf of Petitioner but testified that the marina's impacts upon fish and wildlife would not be detectable. Jim Valade, a Florida Department of Natural Resources staff member, was also accepted as an expert in marine biology, including fish and manatees, but testified that the permit applicant has taken steps to protect manatees in virtually all aspects and that his department's concerns regarding the safety of manatees have been adequately addressed by the design and proposed operation of the marina. Bill Watkins, a St. Johns River Water Management District staff member, was accepted as an expert in biology, but testified that the design of the marina provides the grass beds "a fair degree of protection" and declined to opine that the marina would have any adverse impacts upon wildlife or fish. Finally, Dr. Carol DeMort, in her deposition, specifically declined to render any opinion regarding adverse impacts upon wildlife or fish. Thus, the evidence adduced by the Petitioners at hearing did not rebut the evidence introduced by the applicant that the marina will have no detectable impacts upon wildlife or habitats involved in the vicinity of the site St. Joe introduced evidence concerning impacts from shading upon grass beds by the marina structures themselves and from turbidity "washed" onto, the grass beds by motorized boats maneuvering in the marina basin. Expert testimony was adduced that established that shading caused by the widest pier, that is, the main pier with a width of 12 feet, would have no adverse impact on the grass beds due to shading. That testimony was unrebutted and is accepted. Two expert witnesses for St. Joe, a marine engineer and a biologist, as well as a Department witness, established that, even assuming that turbidity was generated by propeller action in the marina basin, the turbidity resulting from prop wash would not be transported 275 feet from the marina basin offshore to the :grass beds at the inshore area. They attributed those opinions to the nature of the sediments involved which are not readily suspended, the flushing at the site, the distance between the basin and the grass beds, and the typical extent of prop wash from boats expected to be used at the marina. The Petitioners presented two witnesses, who testified regarding the impacts of prop wash. Mr. Allen, an expert in upland terrestrial species, testified regarding the potential for deposition of sediments on grass beds but also acknowledged that the hydrographics at the site, the distance between the marina basin and the grass beds and other protective measures would minimize this potential. One lay witness for the Petitioners testified to the effect that if a "handful" of boat owners in the marina violated the "no wake" restrictions and accelerated their boats in violation of those restrictions, they would cause turbidity to be placed upon the grass beds. His testimony was contradicted, however, by a marine engineer, who testified that prop wash is a function of many parameters (e.g., the RPM of the engine, the horsepower of the engine, the draught of the boat, and configuration of the propellers, etc.). He established that it would not be reasonable to expect prop wash extending twice the length of a boat. Regarding impacts upon benthic communities at the site, the applicant introduced expert testimony which established that the benthic communities in that vicinity of the marina, including the grass beds, fin fish, shellfish, and other organisms, will not be adversely impacted by the construction and operation of the marina in light of the safeguards which would be imposed upon the permit, as delineated herein. This is primarily due to the absence of significant concentrations of pollutants to be expected and the hydrographics prevailing at the site as that relates to the unlikelihood of boat grounding, prop dredging, and prop wash suspending pollutants and turbidity and depositing them on benthic community habitat areas. Only one of Petitioners' witnesses, Dr. DeMort, testified in her deposition concerning potential impacts upon benthic communities. Dr. DeMort made it clear, however, that she had conducted no investigations and studies necessary to enable her to render an expert opinion on the impacts upon the benthic communities prevailing at the site which might be caused by the marina's construction and operation. Her testimony in this regard only related to marina installation and operation in general and was not related to the specific design characteristics and proposed operational parameters of the subject marina. Manatees are an endangered species. There is much concern about their welfare with regard to the proposed project because all parties acknowledge that the site and the shoreward grass bed areas, particularly, are frequented by manatees, particularly for summer foraging. Manatees tend to forage in shallow waters and associated grass beds. Boats pose definite hazards to manatees and cause significant manatee deaths each year due to impact from boats, as much as 15% to 30% of the known population. In response to this hazard, the U.S. Marine Mammal Commission has recommended that grass beds be protected and that establishment of protective or "no wake" zones in manatee foraging areas be accomplished. In light of such restrictions voluntarily agreed to by St. Joe and its expert testimony in this regard and in light of the manatee education and awareness measures proposed by the applicant, it has been demonstrated that the marina will not have any negative impact on the manatee population in the area. The Petitioners' only expert witness concerning manatees, Jim Valade, indeed, opined that the marina had taken steps to protect manatees "in virtually all aspects". In this connection, the design features in the management and operational plan discussed herein and proposed by the applicant embodies measures to address potential impacts upon manatees which frequent the marina site. These include manatee awareness signs to be posted at the marina; and an additional specific condition has been agreed upon by the Department and the applicant which specifies the size, lettering and other details of the warning signs, and the location of them within the marina, all of which will be included in a plan to be submitted to, reviewed, and approved by the Florida Department of Natural Resources. Additionally, a permanent educational display will be located at the Yacht Club informing boaters who frequent the facility of the presence of manatees in the area and the need to minimize the impact of boats upon manatees. During construction, if a manatee is sited within 100 yards of the marina site, construction activities will cease and not resume until manatees have left the area. A handbook will be prepared concerning manatees and the effect on them of boat operation, which will be distributed to employees of the facility and to Yacht Club members and guests. This requirement and the review of it by Yacht Club members and guests will be an integral requirement in the terms of the slip leases. Additionally, no docking facilities, pilings or cleats will be located along the portions of the piers not containing boat slips in order to discourage boaters from attempting to moor at those locations, which will reduce the number of boats frequenting the marina, as that relates to manatee safety. This portion of the St. Johns River functions as a highly productive juvenile fish nursery and sports fishing area. Therefore, an examination of the marina's potential impacts upon marine productivity, fishing and recreation in the area is an important consideration in this proceeding. The discussion of this potential impact involves the same issues discussed in connection with impacts upon water quality and wildlife habitat; namely, the generation of pollutants and the impacts upon the grass beds and benthic communities directly by boat operation itself. Unrefuted testimony adduced by the applicant and the Department has established that impacts upon the fish population and upon marine productivity, fishing and recreational values will not be adverse. No deliterious effect is likely to be occasioned the fisheries and fish habitat and the habitat of other aquatic organisms in terms of juveniles or adults or to the sport fishing values of the area in which the marina will be located. Indeed, the marina structures and the shade and concealment offered by moored boats will provide additional habitat for juvenile fish, as well as provide an additional source of food because of the "fouling communities" of life forms which will be expected to grow on the pilings. These will serve as food for juvenile fish and some species of adult fish which, in turn, will enhance the food supply of predatory fish operating at an upper level in the food web. The boats and structures themselves also will operate as a source of protection for certain fish populations from predators. The Petitioners produced a fisheries biologist as an expert witness, who testified in this regard; but he acknowledged that he did not know whether noticeable impacts on conservation of fish, marine productivity and recreational values will be caused by the installation and operation of the marina. He testified in a general sense that he feared some negative impacts might result but did not feel that any such impacts would be detectable based upon testimony he heard and deferred to, including testimony that the littoral zone would not be impacted by the marina to any significant degree. He ultimately opined that the marina would likely have little impact on sports fishing. The other witness produced by the Petitioners concerning impacts upon fishing and recreational values was unable to render any expert opinion, by her own admission, because she had conducted no studies or otherwise been provided information regarding the design and proposed operation of the marina. Consequently, the testimony adduced by the applicant as to these parameters is accepted; and it has been established that the marina will not adversely impact fisheries, fish conservation, aquatic habitat, sport fishing, recreational values and marine productivity in the area involved at the project site. Regarding potential impacts upon the public health, safety and welfare and property of others, the applicant and the Department adduced expert testimony that no adverse impact regarding these interests will occur. The testimony of Petitioners' experts similarly establishes that the marina would not pose safety hazards or would otherwise give rise to any noticeable impacts upon the public health, safety, welfare and property of others. Regarding potential impacts upon navigation or the flow of water, St. Joe and the Department introduced expert testimony to establish that the marina would not adversely impact navigation or the flow of water, and it is so found. The Petitioners' introduced no evidence regarding this subject. Regarding potential impacts upon significant historical and archaeological resources, the applicant and the Department introduced evidence that no adverse impact as regards these resource parameters will occur. Although one of the Petitioners, in her testimony, speculated that the marina could "detract" from the William Bartram scenic highway, she was unable to specify how the marina would impact the highway or to what extent the highway was a significant, historical or archaeological resource. It is found that no such adverse impact on the William Bartram scenic highway will occur. Cumulative Impact Regarding cumulative impacts, the applicant and the Department introduced evidence that the marina would not give rise to impacts which, cumulative with the impacts of other marina facilities, would be significant. The evidence establishes that there are six marinas within four miles of this marina site; two upriver, and four downriver. Due to the hydrographic circumstances in the area and the distance of the other marinas from this site, it has been demonstrated that the addition of this marina to the area will not result in any adverse cumulative impacts. Mr. Mike Allen, the expert in upland terrestrial species (not involved in this proceeding), referenced in his testimony the cumulative impacts he feared on sports and commercial fishing. Mr. Allen made it clear, however, that his reference was not to cumulative impacts caused by the marina and existing marinas but, rather, to impacts which could be brought about by many such future facilities located in this particular area. The evidence does not reflect, however, that any other marinas are conceptually contemplated or are the subject of other permit applications for this area for the future. It is thus found that no significant adverse cumulative impacts will be occasioned by the installation and operation of the subject facility.
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 the application of St. Joe Paper Company for the dredge and fill permit at issue be granted, provided that the terms and conditions enumerated in the Department's Intent to Issue, in evidence as St. Joe Exhibit 9, and accepted by the applicant, as well as those conditions found in this Recommended Order to be necessary and supported by the evidence, are incorporated in the permit as mandatory conditions. DONE AND ENTERED this 26 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5053 Applicant's/Respondent's Proposed Findings of Fact 1-53. Accepted, but are subordinate to the Hearing Officer's Findings of Fact on the same subject matter, particularly in those several instances where conditions on the grant of the permit have been recommended to be modified somewhat by the Hearing Officer in light of the totality of the preponderant evidence presented. Rejected, as unnecessary. Accepted. Respondent DER's Proposed Findings of Fact The Department submitted no proposed findings of fact but, rather, adopted those submitted by the applicant/Respondent. Petitioners' Proposed Findings of Fact Petitioners, Hoffert, presented no proposed findings of fact but, rather, a letter in the nature of final argument which has been referenced and discussed in the above Preliminary Statement to this Recommended Order. Petitioners, Cornwell, submitted a post-hearing pleading; but it contained no specific, separately-stated proposed findings of fact, which can be separated from their mere recitation and discussion of testimony in evidence and arguments such that coherent, specific rulings could be made. Petitioners, Cornwell's post-hearing pleading did not conform to the instructions given to them by the Hearing Officer at the conclusion of the hearing concerning the appropriate manner for submission of proposed findings of fact, and they were submitted late. They have been considered in the rendition of this Recommended Order, however, in spite of the fact that they were filed in a tardy fashion. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 T. R. Hainline, Jr., Esq. ROGERS, TOWERS, ET AL. 1300 Gulf Life Drive Jacksonville, FL 32207 William H. Congdon, Esq. and Joanne Barone, Esq. Department of Environmental Regulation Twin Towers Office Building Room 654 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Davis Winn 3448 State Road 13 Jacksonville, FL 32259 Mary and Irv Cornwell 2652 State Road 13 Switzerland, FL 32259
The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
