The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
Findings Of Fact The subject application requests a water use permit from the Central and Southern Florida Flood Control District (FCD) for the supplemental irrigation of 145 acres of citrus lands located in Orange County. Received into evidence at the hearing were the public notice of hearing appearing in the Sentinel Star, permit application number 21424 with an attached report and the Staff Report of the FCD, prepared by Nagendra Khanal. The applicant requested an annual allocation of water in the amount of 120.15 acre-feet or 9.94 inches per year, for a period of twenty (20) years. The Staff Report recommends the issuance of a permit for said amount, with maximum monthly pumpages not to exceed 49.8 acre-feet or 4.13 inches, the permit to expire on January 15, 1978. Several further special provisions were recommended on pages 4 & 5 of the Staff Report, which report is attached hereto. There is no dispute between the applicant and the FCD over the technical aspects of the Staff Report. The protests of the applicant center around the length of the permit and some of the special provisions recommended in the Staff Report, which the applicant feels are vague and ambiguous. Mr. James A. Hinson, the applicant's corporate secretary, felt that the FCD had sufficient data and statistics as to the water resources and agricultural usage within the area to sustain the granting of a twenty year permit. It was further felt that the issuance of a two-year permit for the purpose of gathering information as to the quantity of use would tend to prompt higher usage and even lead to falsification of pumpage records on the part of agricultural users so as to assure the issuance of future permits. The applicant was also concerned with the costs of applying for another permit in two years. Mr. Nagendra Khanal, a hydrologist with the FCD, explained that the purpose of the two-year permit was to obtain information from agricultural users in the area as to the amount of water used and the effect of such usage on the Florida aquifer system. Since the outset of regulatory provisions, the FCD has set the same termination date for each permit for agricultural use within each of the basins. At that expiration time, the pumpage records for all users in the area will be established and present experimental estimates can then be compared with actual usage. Little is known by the FCD about how the Florida aquifer system operates and the data presently in use are experimental. Since all permits within each basin will expire on the same date, the entire basin can then be evaluated at one point in time. It was felt that if falsification of pumpage records were to occur, it could probably be detected by data currently available to the FCD. It was further opined by Mr. Khanal that at, the expiration date of all permits issued in each basin, an automatic conversion into new permits would occur at little or no cost to the applicant. With regard to the special provisions recommended in the Staff Report, Mr. Hinson expressed concern over the manner of compliance. Specifically, he desired more information on the type of equipment or devises required by the FCD when it calls for "minimum head pressures", and "a measuring device on each of the three wells." He also desired information as to the times of year the water quality analyses were to be performed. Mr. Khanal explained that no regulatory criteria had been established by the FCD with regard to pumpage and that the minimum type of measuring device, such as a time clock, on each of the wells would suffice. Further specifications will be supplied to the applicant upon request. It was explained by Khanal that the water quality analyses should be performed once before the rainy season (at the end of May) and once after the rainy season (at the end of October). There was some confusion over the inclusion of the parameter of "specific conductivity" within the definition of a standard complete water quality analysis. Finally, Mr. Khanal listed two amendments to be made in the Staff Report. On page 2, under "B. Existing Facilities", "3,500 gpm" should read "3,600 gpm." The last item on the chart on page 3 of the Staff Report should read "2 in 10 Year Drought" in lieu of "1 in 10 Year Drought."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Application No. 21424 be granted and that a permit be issued in accordance with the recommendations and provisions set forth in the Staff Report, as amended. Due to the apparent confusion over the inclusion of "specific conductivity" as a parameter to be included within the definition of a standard complete analysis, it is further recommended that the Staff make further inquiry into its necessity. If the Staff then concludes that "specific conductivity" is necessary to obtain a complete water quality analysis, it is recommended that it remain on the list of parameters. Respectfully submitted this 5th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR 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 5th day of March, 1976 COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Akerman, Senterfitt, Eidson and Wharton 17th Floor CNA Building Orlando, Florida Stephen A. Walker, Esquire Post Office Box V West Palm Beach, Florida 33402
Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 27th day of February, 1981.
The Issue The issues to be determined in this case are whether Petitioner Highway 60 and 301 Center, Inc., has standing to challenge the proposed Environmental Resource Permit issued to Respondent Big Bend Center, LLC, by Respondent Southwest Florida Water Management District ("District"), and, if so, whether Big Bend Center is entitled to issuance of the proposed permit.
Findings Of Fact The Parties Petitioner owns real property located at 105 U.S. Highway 301 South, in Tampa, which Petitioner leases to commercial businesses. Respondent Big Bend Center owns real property located at 110 U.S. Highway 301 South, which is across Highway 301 from Petitioner's property. Big Bend Center is named in the District's agency action and is the permittee. The site affected by the proposed permit modification is about 2.5 acres in size. It is part of a larger development owned by Big Bend Center, encompassing about 30 acres. The 30-acre site was the subject of a permit issued by the District in 1988. The 1988 permit approved a master drainage plan applicable to all 30 acres. The permit modifications discussed herein are modifications to this initial permit. Respondent Enterprise Holdings leases the 2.5-acre site at 110 U.S. Highway 301 South, which Enterprise uses for the operation of a car and truck rental business. When Petitioner filed its petition with the District, it named Enterprise Holdings, Inc., as a Respondent, even though Enterprise Holdings was not named in the permit. Neither Petitioner nor the District ever questioned the right of Enterprise Holdings to participate as a party. Respondent Southwest Florida Water Management District is the administrative agency charged with the responsibility to administer and enforce chapter 373, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Chapter 40D. The Permit The petition for hearing challenged the District's approval of a proposed permit designated 44003983.007. The permit authorized the construction of a building over existing pavement and the addition of a dumpster pad. After the petition for hearing was filed, Big Bend Center requested and the District approved a modification, designated .008, which included the .007 changes and, in addition, authorized the construction of a section of sidewalk and landscape islands in the parking lot. Enterprise then requested and the District approved another modification, .009, which authorized all the changes addressed in .008 and, in addition, authorized changes to the paved parking lot. Standing Petitioner contends that proposed permit, modification .009, would injure Petitioner because the authorized changes would result in flooding of Highway 301 that could reach Petitioner's property or, even if it did not reach that far, would interfere with traffic on Highway 301 in a manner that would disrupt Petitioner's business. The sole factual allegation upon which Petitioner bases its claim of flooding is that the previously-installed pipes that convey runoff to a retention pond may be too small; smaller than was required by Big Bend Center's 1988 permit. Petitioner's expert, Clifford Laubstein, stated that a boundary survey in the permit file shows two 18-inch diameter pipes connected to a 24-inch diameter pipe. Big Bend Center's 1988 permit required these pipes to be 24 inches and 30 inches, respectively. Laubstein admitted that the "as built" construction drawings that were submitted to the District by Big Bend Center after the construction of the master drainage system certifies that the pipes are the required, larger size. Laubstein did not have firsthand knowledge of the size of the pipes. He did not know which document was correct, the survey or the as built drawings. His position was simply that if the survey information was correct, Big Bend Center's stormwater system would fail to function properly and flooding could occur. Laubstein did not know whether the system had failed to function properly in the past or had ever caused flooding. Laubstein did not determine what storm event or volume of runoff would result in flooding of Highway 301, or the extent of flooding that would occur under various storm events. Because as built constructions drawings are prepared by an engineer and submitted to the District for the very purpose of certifying that a system has been constructed in accordance with the requirements of the permit, information in the as built drawings about components of the system would generally be more reliable than such information in a survey that was prepared for another purpose. Furthermore, Enterprise's expert witness, Steve Boggs, measured the pipes and determined they were 24 and 30 inches, as required by the permit. By refuting Petitioner's claim that the pipes "may" be undersized, Respondents refuted Petitioner's claim that Highway 301 or Petitioner's property "may" be flooded if the proposed permit modification is issued by the District. The stormwater system for the proposed project is properly sized to handle the stormwater runoff. Petitioner failed to meet its burden to prove by a preponderance of the evidence that it could be injured by the proposed permit modification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District dismiss the petition and issue Environmental Resource Permit 44003983.009. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
Recommendation Based upon the above findings of fact and conclusions of law it is recommended that the permit requested be issued in accordance with the recommendations and special provisions set forth in the staff report (attached thereto). Respectfully submitted this 3rd day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS 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 3rd day of November, 1975. COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Post Office Box 231 Orlando, Florida 32802 John Wheeler, Esquire Post Office Box V West Palm Beach, Florida
Findings Of Fact Respondent 360 North Corporation is seeking a permit to fill .05 acre of land dominated by submerged and/or transitional plant species as defined by the DER. The purpose of this fill is to enable Respondent 360 North Corporation to construct a residential building on its property. Respondent 360 North Corporation has proposed to create .15 acre of wetland habitat on its land in the vicinity of the proposed fill area to compensate for whatever detriment may ensue as a result of the .05 acre fill. Respondent 360 North Corporation has produced evidence, uncontroverted at the hearing, that it is the record owner of the real property for which the permit is being sought and of the area in which the proposed mitigation is to be conducted. Respondent 360 North Corporation established by testimony that there was no practical alternative by which the two proposed buildings could be located within the property without requiring significant modification to the buildings' structure or without the use of fill. Credible expert testimony characterized the vegetation within the .05 acre fill area as dominated by black mangroves (Avicennia gerrninans) and white mangroves (Laguncularia racemosa), all of which are less than 2.5 feet in height. The proposed fill activity is to be conducted in wetlands contiguous to Longboat Pass, Sarasota County, Florida, described by the DER as a Natural Class III Water Body. Respondent 360 North Corporation's witness testified that the placement of .05 acre of fill as proposed will have no significant effect upon the water quality in Longboat Pass. Respondent 360 North Corporation submitted a proposal for wetland habitat creation with its modified permit application. This proposal indicates the methodology by which the mangroves from the area to be filled will be transplanted to the mitigation area. It also indicates that the proposed fill will have a gradual slope and will be replanted with wetland herbaceous vegetation to prevent erosion. Testimony by 360 North Corporation's expert witness established that with proper planting and monitoring, the mitigation area would have an 80 percent chance of success barring any unforeseen acts of nature such as an extreme frost or hurricane. In addition, the expert testified that once established the mitigation area will create an environmentally superior habitat to that now existing in the area to be filled and would add to the stability of the shoreline at the north end of Longboat Key. The expert for Respondent 360 North Corporation testified that transplantation should be done in the spring of the year, preferably in March. In addition, he recommended that the trees be removed with a tree spade and replanted on four-foot centers. Additional mangrove plants and seedlings from nursery stock should be planted in the understory on two-foot centers. It was also recommended that a monitoring program be initiated to ensure survival of the trees in the mitigation area. The trees should be monitored at weekly intervals for the first six weeks, decreasing to biweekly intervals for the remaining first year, then at semiannual intervals for two additional years. The parties agreed to resolve this dispute if the requested permit was issued containing conditions requiring planting and restoration as outlined by Respondent 360 North Corporation's expert in his testimony at the hearing and in the proposal submitted to the DER with the modified permit application. Respondent 360 North Corporation agreed to revegetate with wetland vegetation the area disturbed by the use of scaffolding or other equipment employed during construction. Respondent 360 North Corporation additionally agreed to post a bond or other form of financial assurance in the amount of $10,000 with the DER to insure compliance with the conditions of the permit.
The Issue The issues presented for decision in this case are: whether Martin County should be granted the re-issuance of Water Use Permit No. 43-00752W for the Tropical Farms Water Treatment Plant and associated wells; and (2) whether Martin County should be granted Water Well Construction Permit No. SF032696B for the construction of Well No. 10 of the Tropical Farms Water Treatment Plant, pursuant to the permitting criteria of Chapter 373, Parts II and III, Florida Statutes; Chapters 40E-2 and 40E-3, Florida Administrative Code; and the Basis for Review for Water Use Permit Applications of the South Florida Water Management District.
Findings Of Fact Petitioner James W. Slusher, Jr., and his wife, Diane L. Slusher, own a residential lot located in unincorporated Martin County at 2376 SW Ranch Trail, Stuart, Florida 34997. On the lot is a single family home. The size of the residential lot is approximately 2.25 acres. Mr. and Mrs. Slusher purchased the subject residential lot and home in September of 1994 from Mrs. Stella Kassinger. Mrs. Kassinger and her late husband (the “original owners”) had the home built on the residential lot in approximately 1980. When the original owners built the home, they had a hole or “pit” dug in the rear portion of the lot. From aerial photographs taken at the time (1979-1980), and based upon the common practice in the area, it appears that the material from the “pit” was spread on-site to provide additional elevation for, and to minimize the potential for flooding of, the home and driveway that were constructed on the lot. Thus, the original “design function” of the “pit” was to provide fill for construction. The original owners thereafter allowed the “pit” to accumulate water and stocked it with fish so that Mr. Kassinger could use it recreationally as a fishing pond. The “design function” of the original “pit” was thus changed so that it would serve as a recreational amenity on the property. During the subsequent 14 years that the original owners lived in the home, they did nothing further to alter or improve the fishing pond. Over the years, the area immediately around the fishing pond became heavily vegetated and was used from time to time by various wild birds and animals. The fishing pond was used by the original owners for fishing and for observing the wildlife it attracted. After purchasing the home, Mr. Slusher also stocked the fishing pond with various fish over the years so that he and his family could continue to use it recreationally. The fishing pond continued to be used by the Slushers for fishing, for observing wildlife, and as a swimming area for their dogs. Currently, the overall dimensions of the fishing pond are approximately 90 feet wide, by 122 feet long, by 10 feet deep at its deepest part, when filled to the level that was natural prior to the operation of Water Well No. 10. Potable water for the Slusher home is obtained from a well drilled on the property, not from the public water system of the County. The Slusher well is located approximately 33 feet from the home. It is attached by PVC pipe to a pump located next to the home. The original owners caused the well to be drilled. The record in this case does not contain any persuasive evidence regarding the details of the Slusher residential water well. Specifically absent are such details as the depth to which the well was originally drilled, the material from which the well tube was made (i.e., cast iron or PVC), and the current physical condition of the sub-surface portions of the well. Mr. Slusher has not done anything to repair or replace the well since he and his wife purchased the home. On August 2, 2000, Mr. Slusher filed a petition with the SFWMD challenging the issuance of Water Well Construction Permit No. SF032696B, and the "use of the well." On November 3, 2000, Mr. Slusher filed an amended petition with the Division of Administrative Hearings, challenging the issuance of Water Use Permit No. 43-00752W and Water Well Construction Permit No. SF032696B. Martin County (“the County”) is a political subdivision of the State of Florida, established in 1925 pursuant to Section 7.43, Florida Statutes, and Section 1, Chapter 10180, Laws of Florida. SFWMD is an independent state agency, operating pursuant to Chapter 373, Florida Statutes. SFWMD originally issued Water Use Permit No. 43-00752W to the County on April 15, 1993. The “water use permit” was for wells and associated equipment at the Tropical Farms Water Treatment Plant (“Tropical Farms WTP”). SFWMD re-issued Water Use Permit No. 43-00752W to the County on March 14, 1996. The re-issued “water use permit” allowed additional wells to be drilled and additional draws of water by the County at the Tropical Farms WTP. One of the additional wells included in the re-issued water use permit was “Well No. 10.” SFWMD issued Water Well Construction Permit No. SF032696B to the County on March 28, 1996, allowing the construction of Well No. 10 at the Tropical Farms WTP. In accordance with the restrictions imposed by the water well construction permit, the County drilled Well No. 10 on a site located at least 100 feet in distance from the fishing pond on the Slushers’ property. The physical location of Well No. 10 is essentially “adjacent to” the Slusher property. County Well No. 10 is approximately 120 feet deep and draws water from the surficial aquifer. It commenced operation in December of 1996. It is uncontested that the operation of the well field, especially County Well No. 10, has caused drawdowns of the pond level and of the groundwater in the area of Mr. Slusher's residential water well. The MODFLOW model used by the County in support of its application indicates a maximum drawdown of 7.4 feet. The persuasive expert opinion evidence in this case indicates that maximum draw downs of 7 or 8 feet would be expected in the area of Mr. Slusher's residential water well. The County has acknowledged that the operation of Well No. 10 has had a significant effect on the drawdown of the water table in the area of the pond. County Well No. 10 appears to have been constructed in a manner consistent with the applicable rules. The well was properly drilled and grouted, the correct materials were used, and the well was constructed in a manner that did not result in harm to the water resources. The water use permit was issued prior to the well construction permit, as is appropriate. Although permitted originally in 1993 and again in 1996, the Tropical Farms WTP did not begin regular operations until June of 1997. It is now part of a consolidated system which includes four other water treatment plants, all operated by the County for the purpose of obtaining and providing potable water to the public county-wide. In support of its applications for the issuance and re-issuance of the water use permit, the County provided SFWMD with so-called “MODFLOW calculations” done by a professional engineering firm retained by the County. MODFLOW was developed by the U.S. Geologic Survey and is considered the standard for assessment of ground water resource impacts. The results of the three-dimensional MODFLOW modeling showed that the drawdown effect on the water table of the proposed wells for the Tropical Farms WTP would be unlikely to cause any adverse effect on typical wells used by homeowners, even if the latter were located within the same small “square” as one of the County’s wells. Prior to the commencement of the operation of Well No. 10 by the County, the water level in the fishing pond on the Slusher property would vary only a few inches up or down during the course of a typical year. After the County began to operate County Well No. 10, Mr. Slusher observed and videotaped much greater variations in the water level in the fishing pond on his property. After County Well No. 10 began to operate, the pond water level dropped to the extent that it would become virtually empty of water from time to time. At other times, however, the fishing pond would refill with water, such as in September of 1999, and in August of 2001. When the water in Mr. Slusher's pond gets very low, it has an adverse impact on the fish in the pond; the fish die because they have insufficient water. Mr. Slusher has not done anything over the years since the operation of County Well No. 10 began to attempt to prevent the variations in the water level of the fishing pond, or to mitigate the occurrence of such variations. The County (together with the rest of southern Florida) has experienced several periods of severe drought over the past few years. Yet other “ponds” on other properties in the same neighborhood as the Slusher property have not experienced the significant variance in water level that has occurred in the fishing pond on the Slusher property since the County began drawing water from Well No. 10. The County does not operate Well No. 10 continuously. Rather, it has attempted to reduce its use of the well. SFWMD has never issued any notice to the County that any mitigation was required on the Slusher property pursuant to the limiting conditions of the water use permit. The County does not dispute that its operation of Well No. 10 has contributed to a drawdown in the level of the water table in the surrounding area, nor that such a drawdown has contributed to the variance in the water level in the pond on the Slusher property. Indeed, the drawdown of the water table generally was fully anticipated and predicted in the materials submitted by the County to SFWMD. The use of County Well No. 10 to draw water from the surficial aquifer is not the only factor contributing to the variances in the water level of the fishing pond on the Slusher property. Evaporation and natural variances in the level of the water table also contribute to changes in the water level of the fishing pond. Bentonite is a naturally occurring clay that is mined for a variety of uses, including the “lining” or “waterproofing” of reservoirs, lagoons, ponds, ditches, and other man-made bodies of water in order to seal them and to prevent or minimize seepage or percolation of the water into the ground. Even repeated wetting and drying of the clay does not reduce its effectiveness. Bentonite is widely used and has not been found to have any harmful or toxic effects on either human beings or wildlife. In some applications, bentonite clay is a superior lining material when compared to a man-made liner, such as a plastic or polymer sheet. In a small scale application where the volume of water in a lined pond is relatively low, a man- made liner could be forced away (“balloon up”) from the bottom of the pond by the pressure of a rising natural water table. Lining the pond on the Slusher property with Bentonite (or some similar clay) would create a virtually impervious layer that would separate the water in the pond on the Slusher property from the surrounding water table. With such a lining in place, County Well No. 10 would have no significant effect on the water level of the pond. The water level in the pond on the Slusher property could also be stabilized at or near its normal level prior to the operation of County Well No. 10 by installation of a water supply that would add water to the pond whenever the pond dropped below a specified level. Mr. Slusher first complained to the County about the effect of the County’s operation of Well No. 10 in 1997, when he spoke with Jim Mercurio, a County water utilities employee. Mr. Slusher also complained at about the same time to SFWMD, which resulted in a “field investigation” in September 1997. At that time, Mr. Slusher complained about the lowering of the water level in the pond on his property, but specifically denied any adverse effect on the water from his residential water well. Mr. Slusher began to complain about the water quality and water pressure in his residential water well sometime in 2000. The water flowing from Mr. Slusher's residential water well now has an unpleasant odor, taste, and color, and the water causes rust stains. The water pressure of the water flowing from Mr. Slusher's residential water well is less than it was before the construction of County Well No. 10. The rust stains, odor, taste, and color are all due to iron oxidation of the water drawn from the well on the Slusher property. The County regularly experiences similar problems with iron oxidation in the water that it draws from its own wells in the same area as the Slusher property, which the County must treat at the Tropical Farms WTP. The problem of iron oxidation (and accompanying odor and taste deficiencies) in the water is thus not unique to the water drawn from the well on the Slusher property. Iron oxidation in well water is not harmful to human beings. The evidence in this case does not include any evidence of any testing of the water quality of the water coming from the Slusher residential well. Similarly, there is no persuasive evidence as to the current condition of the sub- surface portions of the Slusher residential well. Further, the evidence regarding the cause of any deterioration of the water quality and/or the water pressure of the Slusher residential water well is both anecdotal and speculative, and is not a persuasive basis for determining the cause of any deterioration of the water quality and/or water pressure of the subject residential well. Specifically, the evidence is insufficient to establish that the water quality and water pressure deterioration complained of by Mr. Slusher are a result of the operation of County Well No. 10. Such deterioration could be caused by other circumstances or conditions, including the uninspected sub-surface condition of Slusher's residential water well. The water quality and water pressure problems currently experienced by Mr. Slusher could be minimized or eliminated by connecting his residence to the residential water supply system operated by the County. A branch of the County's public water system already exists in Mr. Slusher's neighborhood within a few hundred feet of his property. The application and information provided to SFWMD by the County were determined by SFWMD to provide “reasonable assurances” that existing legal users would not be adversely affected by the proposed wells or water treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governing Board of the South Florida Water Management District enter a final order issuing Water Well Construction Permit No. SF032696B and re- issuing Water Use Permit No. 43-00752W to Martin County, subject to the general and special conditions set forth therein. DONE AND ENTERED this 31st day of May, 2002, 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 31st day of May, 2002. COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. 618 East Ocean Boulevard, Suite 5 Post Office Box 1197 Stuart, Florida 34995-1197 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 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 Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
