The Issue The issue is whether the Respondent, Kingsley Service Company, should be granted an operating permit to increase the capacity of its Fleming Oaks Waste Water Treatment Plant from .490 MGD to .720 MGD.
Findings Of Fact The Fleming Oaks Waste Water Treatment facility is located on Fleming Island, at the south end of Bahia Road. (T 25). It includes three units, a .180 MGD, a .150 MGD and a .490 MGD plant. (T 49). The facility is owned and operated by Kingsley Service Company, the largest utility in Clay County. (T 24) Kingsley has operated in Clay County for more than 26 years and presently services the equivalent of over 17,000 homes. (T 23). Fleming Island is a relatively large piece of land bounded on the east by the St. Johns River, on the south by Black Creek, and on the north by Doctors Lake. On the west, Black Creek and Doctors Lake are connected by Swimming Pen Creek and a swampy marsh area. (T 25-26). In 1982, a .080 MGD sewage treatment plant was built at the present Fleming Oaks location. In 1984, a .0150 MGD plant was added, bringing the total facility capacity to .230 MGD. Effluent from those plants was discharged through a pipe to the St. Johns River. On February 25, 1986, Kingsley received permit No. D010-115962 authorizing continued operation at the Fleming Oaks facility of the 0.080 MGD and 0.150 MGD sewage treatment plants. This operation permit expired on February 25, 1991. (RE #1). On October 8, 1987, the Department issued permit No. DC10-139744 to Kingsley to expand "the existing 0.230 MGD...Sewage treatment plant by constructing a separate 0.490 MGD extended aeration sewage treatment plant with a total design capacity of 0.720 MGD." (RE #2). On January 25, 1990, the Department issued permit No. D01-104228 to Kingsley, "[t]o operate a 0.490 MGD extended aeration sewage treatment plant." This permit required Kingsley to apply for an operation permit for the full capacity of the plant, 0.720 MGD, when the new plant, 0.490 MGD reaches a load of approximately 90% of its capacity. The operation permit for the .490 MGD expires on January 25, 1995. (RE #3). Pursuant to the permit requirement referenced in the preceding paragraph, Kingsley applied to the Department on January 17, 1991 for an operation permit to "[p]lace [the] existing 0.230 MGD WWTP into service raising treatment capacity to 0.720." (RE #5). After reviewing that application, the Department executed a notice of permit issuance, authorizing Kingsley to operate a parallel 0.490 MGD extended aeration waste water treatment plant ("WWTP"), a 0.150 MGD contact stabilization WWTP and a 0.080 MGD contact stabilization WWTP having a combined design capacity of 0.720 MGD serving Fleming Island and authorizing discharge of the treated effluent into the St. Johns River, via an existing 500-foot pipe, 8 inches in diameter. (RE #7). This permit allowed the previously-constructed 0.230 MGD plant to be placed back in service. It is this permit which the Petitioners challenge. The system in question was designed by a qualified engineering firm with substantial experience in the design of waste water treatment plants (R 46, 47 & 48) and in compliance with Department regulations. (R 63-64). The system, as designed and constructed, is being operated by qualified personnel and consistent with Department regulations. (R 280, R 124, 131, 132). The 0.490 MGD plant consists of an aeration tank, a digester, and a clarifier. (RE #8; T 51). Raw sewage is pumped from lift stations into a "surge tank," where it falls through a bar screen and grid chamber which take out large items and sand which accumulate in the sewage system. (T 55-56). Raw sewage is then pumped from the surge tank to the aeration portion of the plant. (T 56). In the aeration tank, solids and liquids, called "mixed liquor," are evenly distributed throughout the depth of the liquid in the aeration tank, where the breakdown process occurs. (T 65). A control box is located between the aeration tank and clarifier which allows waste water from the aeration tank to flow into the clarifier once it reaches a certain level in the aeration tank. (T 56-57). The flow moves through the control box and into the portion of the clarifier called an "annular weir." The annular weir is approximately 18 inches from the outside wall of the clarifier and looks like the outer ring of a bull's-eye target from above. The purpose of the annular weir is to distribute flow evenly into the clarifier. At the center of the circular clarifier is a rectangular-shaped structure called an "effluent weir." (T 57). In the part of the clarifier outside the rectangular effluent weir, undigested solid material settles out onto the bottom. The liquid portion which remains after the solids settle out flow over the top of the effluent weir into the interior of the rectangular structure. The interior of the effluent weir can only be reached from the top. There are no entry points at the bottom, where the solids are. (T 66). The clear liquid that flows over the effluent weir and the sludge that settles to the bottom of the clarifier undergo further, separate treatments. The clarified effluent that flows over the top of the effluent weir is piped to the chlorine contact chamber for disinfection. (T 52). Chlorine is fed into the effluent to destroy pathogens which may be present. (T 81). The final 2-1/2 feet of the chlorine contact chamber is where dechlorination takes place. (T 62). Dechlorination is required so that the chlorine level in the effluent is reduced. (T 54). Dechlorination occurs when sulfur dioxide is mixed with the chlorinated effluent. Discharge monitoring takes place in the chlorine contact chamber. (T 62). The treated and dechlorinated effluent is pumped to the St. Johns River through an outfall which is 500 feet from shore. (T 53, 63). The sludge which settled to the bottom of the clarifier is drawn off at the bottom of the clarifier and directed into the "digester" where, under aerobic conditions and without additional food, bacteria die-off occurs. (T 59). The sludge is actually a liquid substance, approximately 97% water and 3% solids. (T 98-99). The digester is an ancillary process separate from the treatment of waste water. (T 57). The digester stabilizes and further reduces the organic content of the sludge. (T 51). Tanker trucks regularly remove the sludge from the digester and transport it to dairy farms where it is applied to the land. (T 98-101; RE #11 for invoices). The 0.490 MGD plant "has been designed and constructed to meet all the requirements currently posted or regulated by the State of Florida." (T 64). The construction and operation of the Fleming Oaks plant, when compared with the other 600 in the Department's Northeast District, is "very good." (T 131). Although the BOD and TSS limits are 20, the Fleming Oaks plant consistently gets better than 10 and many times less than 5 for these parameters. (T 131). Sampling of the St. Johns River at the end of the outfall pipe has shown that the water quality standards have been met for each sample. (T 141). The Monthly Operating Reports show that required parameters are almost always met. (RE #11). On June 7th, a machine sampled sewage coming into the plant and sewage that was leaving the plant. Two samples were taken, one where raw sewage comes in and one the final effluent. The raw sewage had a BOD of 205 and the treated effluent had a BOD of 1. (T 283-286). TSS was run the same way. Raw sewage had a TSS of 182 while the treated sewage had a TSS of 1. (T 287). Petitioners' concerns about the permitting of the 0.230 MGD capacity center around the buildup of "muck" in the river in the vicinity of the existing outfall. Petitioners assert that Kingsley pumped sludge through the outfall which "polluted" their waterfront as "muck." Donald Loop, who lives 4,000-5,000 feet to the south of the outfall, described the muck buildup as starting 18 months ago "at two to three inches and over a period of time increas[ing] to 18 inches in some places and other places over 24 inches." In conjunction with the muck buildup was "extreme devastation of all greenery, starting with cattails and many other green plants that grew out there." (T 153-154). During this time frame, the rainfall was 25% below the annual average and "the river flows were much less than normal." (T 153, 270). Damon Loop, Donald Loop's brother, lives on a canal, 350-400 feet off the St. Johns River. The canal is approximately 1,000 feet north of the outfall of the Fleming Oaks facility. (T 233). He noticed a muck buildup "when Kingsley Service Company first started putting the effluent into the river." (T 228). At that time, the end of the canal area started filling up with muck. The muck now covers almost 4-1/2 feet and has been there for six or seven years. (T 228). Two or three hundred feet out in the St. Johns River, where it is 10 feet deep, there is a black silt one foot to 15 inches deep. (T 229). Other witnesses also described the muck. Saxton Weir, who lives approximately one-half mile to the north of the outfall, described the muck as being 43 or 44 inches thick. (T 200, 204). The muck extended along his shoreline "over 500 feet" and extended out into the water "from 5 feet to over 100 feet." (T 212-213). Mr. Weir actually saw muck extending as far out as "485 feet from the shoreline." (T 214). The accumulated muck was blown away after three days of rain and a storm. (T 205). A video tape of the conditions caused by the muck was received and viewed. There are tons and tons of muck in this area. Petitioners believe that the muck was actually sludge or TSS illegally discharged from the Fleming Oaks facility. This belief was based upon the mistaken conclusion that the 0.430 MGD treatment process was requiring an inappropriately large amount of chlorine. Petitioners concluded that there was excessive chlorine in the water because of the death of barnacles on pilings in the area. Chlorine kills bacteria and oxidizes other organic materials. (T 116). Small amounts of organic matter which have not been completely digested by the treatment process can be oxidized by chlorine. (T 102). Chlorine is increased to treat unoxidized organic material. (T 83). The MOP/11 operation waste water manual, characterized by Mr. Loop as the "Bible of waste water treatment," indicates that about three parts per million chlorine is appropriate. (T 176). For June of 1990, the average chlorine feed was actually 3.3 parts per million. (T 297-298). The chlorine levels were within normal limits. The barnacles were killed by some other factor, perhaps the drought which occurred at about this time. Because of the muck-related complaints, a sample of sludge was taken by a Department employee from an unknown location in the area and analyzed at the Department laboratory, where it was microscopically determined that the sample was decaying vegetation. (T 138). Without intentionally discharging large amounts of sludge over a period of time, the chance of even noticing any buildup along the shoreline is very, very small. The particles left in the effluent are very small and very light. The ability of this material to settle in a water flowing at even low velocity is difficult. The velocity of the current at the outfall is sufficient to prevent any particles from settling out. (T 96). The "muck" in the river in front of the houses of the Petitioners was not shown to be sludge from the Fleming Oaks Waste Water Treatment Plant after testing by the Petitioners. (R 252). The capacity at issue in this proceeding, 0.230 MGD capacity, consists of 0.080 MGD plant, composed of two tanks, and a 0.150 MGD plant that is composed of three tanks. (T 49-50). Both of these plants are contact stabilization plants. ( T 67). Although permitted until February of 1991, these two plants ceased operating in April of 1989. (T 37). The St. Johns River is Class III waters of the State of Florida. Secondary treatment, which is required for these plants, is sufficient to maintain the water quality standards for the St. Johns River. (T 124-125, 130). When the 0.080 and 0.150 MGD plants were operational, they operated within the limits of the permit at issue here. (T 67). They will meet the requirements for issuance of the permit. (T 124). When the .230 MGD capacity is brought on line, raw sewage entering the surge tank will be routed to each of the three plants rather than just to the aeration plant alone, as it is at present. (T 88). Waste water will be pumped proportionately to the separate plants through variable speed pumps. (T 89). After appropriate treatment in the 0.80 MGD and 0.150 contact stabilization plants, clear liquid effluent will be transferred from them to the chlorine contact chamber where it will be chlorinated, dechlorinated and then pumped to the St. Johns River through the existing outfall. (T 90).
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the application of the Kingsley Service Company for the waste water treatment operating permit at issue be granted, on the terms and conditions set forth in the Department's Draft Permit, in evidence as Respondents' Exhibit 7. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Florida. STEPHEN F. DEAN 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 13th day of March, 1992.
Findings Of Fact On March 30, 1978, Lee County applied to the Department for permits pursuant to Chapters 253 and 403, Florida Statutes, to improve the existing Daniels Road in Lee County, Florida, from a two lane unimproved facility to a two lane paved road. The project site is located in southeastern Lee County, Florida, and crosses Six Mile Cypress Swamp. The proposed improvement would require excavation of material from submerged lands of waters of the state to remove a part of the existing dirt roadbed, placing of fill material onto submerged lands of waters of the state to widen the existing roadbed, and construction of two concrete bridges and two variable crest weirs. After receipt of the application, the Department reviewed the application, and, after consultation with Lee County officials, recommended issuance of the requested permit subject to the following conditions: Elimination of a proposed bicycle path; Deletion of a proposed spreader ditch and the dredging necessary for that ditch; Formulation and submission to the Depart- ment by Lee County of an acceptable management plan and schedule for maintaining water levels and indigenous swamp communities within the swamp; Organization of a Melaleuca Control Committee, together with preparation and implementation of a program to eradicate melaleuca within the right- of-way; and Revegetation of willows in the construction area. In their Amended Petition, Petitioners contest the proposed issuance of the requested permit on grounds that the permit condition requiring development of an acceptable water management plan should be accomplished prior to issuance of the permit; that the long range environmental impact of the proposed project has not been assessed; that the application does not contain information sufficient to give reasonable assurances that it will no result in deterioration of water quality; that insufficient information has been provided to demonstrate that the project will not have an adverse long-range impact on the conservation of fish, marine and wildlife, or other natural resources; that the aquifer recharge area adjacent to the proposed project will be substantially reduced; that sheet flow of overland water will be irretrievably altered; that land uses surrounding the Six Mile Cypress Swamp will contribute to deteriorating water quality; that elimination of the proposed bicycle path would deny Petitioners the right to utilize pedestrian, energy conserving and/or non-polluting transportation; and that the health and welfare of the Florida panther will be threatened by construction in the Six Mile Cypress Swamp which serves as habitat for this endangered species. Petitioners allege in their Amended Petition that their substantial interests would be affected ". . . in that Petitioner Joseph H. Burgess, a resident of Daniels Road, may suffer from downstream flooding as a result of issuing this permit." The Amended Petition alleged that Petitioner, Sierra Club - Calusa Group would be substantially affected by the proposed agency action in that they would ". . . be deprived of an area utilized for nature study . . .," in that the project would ". . . seriously impair the group's ability to study bird life and enjoy the natural scenic beauty of a presently relatively undisturbed area. . . ." The Amended Petition also alleged that Petitioners, Mary Ann Wallace and Joseph H. Burgess, would be substantially affected ". . . as nearby residents, who will be denied the right to enjoy a proposed regional park on the south side of Daniels Road in the Six Mile Cypress Swamp as a direct result of issuing this permit." Neither Joseph H. Burgess, Ellen Peterson, nor any representative testifying on behalf of Sierra Club - Calusa Group appeared or testified at the final hearing in this cause. The only named petitioners appearing and testifying at the final hearing were Mary Ann Wallace and Thomas Geary. Neither of these petitioners offered any testimony to establish that they owned property in Lee County, Florida, that they used any of the waters or other natural resources in the area of the Six Mile Cypress Swamp for nature study, recreation or other purpose, or that they would personally be injured or otherwise affected by issuance of the requested permit or the alleged environmental impacts arising therefrom. At the conclusion of Petitioners' case, the Department and Lee County moved to dismiss the Amended petition on grounds that Petitioners had failed to establish that their substantial interests would be affected by the proposed agency action as required by Section 120.57, Florida Statutes, which motions were granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Amended Petition in this cause. DONE AND ENTERED this 27th day of February 1979 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1979. COPIES FURNISHED: Isaac Anderson, Esquire 2115 Main Street Suites A and B Fort Myers, Florida 33901 Ray Allen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ELLEN PETERSON, et al., Petitioners, vs. CASE NO. 78-1467 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION and LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondents. /
Findings Of Fact The Respondent, Paul Rippee operates the Big Oak Trailer Park. He has owned and operated it since 1955. As part of that operation he supplies his residents with water for human consumption. At the present time there are 41 residents in the park who receive their water from 31 service connections. A majority of the residents live in the park all year. The Big Oak Trailer Park water system does not have any means for providing continuous disinfection measures. While Mr. Rippee does have available the means to inject chlorine into the water system on a one shot basis, there is no means for continuous disinfection. The Big Oak Trailer Park water system does not have installed in it a flow meter, that is, a metering device which accurately indicates the volume of water pumped for distribution to residents. Mr. Rippee does not maintain any disinfectant level in the water distributed to the residents. The Big Oak Trailer Park water system is operated exclusively by Mr. Rippee himself. He is not certified as a water system operator by the Department of Environmental Regulation and he has never employed a certified operator for the supervision of his water system. Since the beginning of the year 1980, Mr. Rippee has filed no monthly operation reports as required by Department regulations. At no time since 1955 have any of the numerous tests done on the water supplied by the Big Oak Trailer Park water system indicated that the water was in any way unsafe for human consumption. Mr. Rippee is a small business man. His sole income comes from the Big Oak Trailer Park. At present only 41 people live there. The park is modest in size with small lots which will not accommodate even double-wide mobile homes. While the most commonly used and readily available disinfectant is chlorine, adequate disinfection meeting DER standards may be provided by ozone which is commercially available or by chlorine dioxide which is not yet commercially available. The design pumping capacity of the Big Oak Trailer Park water system is 2,000 gallons per hour or 48,000 gallons per day. Since at least August 28, 1978, Mr. Rippee has been on notice from the Department of Environmental Regulation that the Big Oak Trailer Park water system as deficient under Chapter 403 and Chapters 17-16 and 17-22, Florida Administrative Code, in the following respects: the water system does not have a flow meter, it fails to provide chlorination to the water, the plant is not operated by a certified operator and the monthly operation reports are not being submitted to DER. These deficiencies have continued until November 4, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Department of Environmental Regulation either return to Circuit Court to continue its enforcement action under the provisions of Section 120.69, Florida Statutes or that the Department withdraw its Final Order of August 20, 1979, and in its place substitute a new Final Order, finding that the Respondent has violated Section 403.859, Florida Statutes (1979) and order appropriate corrective action as stated in the Notice of Violation, paragraphs A through D. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. COPIES FURNISHED: Martha Harrell Hall, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Paul Rippee Big Oak Trailer Park 4024 North Monroe Street Tallahassee, FL 32304
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of December, 2010.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should approve applications to renew consumptive use permits filed on behalf of the West Coast Regional Water Supply Authority (Authority), Pinellas County (County), and Freeman F. Polk (Polk), and if so, what conditions should be included in the permits. The District proposes to issue renewed permits to these applicants with specified conditions, but Polk seeks certain additional condition; to the permits sought by the Authority and the County, and similarly, the Authority and County seek the imposition of additional conditions on Polk's permit. The parties seek these additional conditions to insure that the permitted uses will not interfere with any legal use of water existing at the time of the applications, and will also not cause the water table to be lowered so that lake stages or vegetation are adversely and significantly affected on lands other than those owned, leased or controlled by the applicants.
Findings Of Fact The following findings are based upon relevant stipulations of the parties: The Authority is a special taxing district of the State of Florida encompassing Pasco, Pinellas and Hillsborough Counties, which was created by interlocal agreement on October 25, 1974. It is responsible for the design, construction, operation and maintenance of facilities in locations, and at times, necessary to insure that an adequate supply of water will be available to all persons residing within its boundaries. The District is an agency of the State of Florida which is charged with regulating consumptive uses of water in a sixteen county area, including Pinellas, Pasco and Hillsborough Counties. It has implemented a permitting program that requires all persons seeking to withdraw water in excess of an annual average daily rate of 100,000 gallons, and a maximum daily rate of 1,000,000 gallons, to obtain a consumptive use permit. The Cypress Creek Wellfield is located on a 4,895 acre site in central Pasco County, lying east of U.S. 41 between State Roads 52 and 54. The District owns 3,623 acres of this Wellfield, and the remaining 1,272 acres are owned by the City of St. Petersburg. Construction on the Cypress Creek Wellfield commenced in 1974, and it currently consists of thirteen production wells, numerous monitor wells, several thousand feet of transmission lines, two 5 gallon storage tanks, a pump station and several buildings. The City of St. Petersburg, Pinellas and Pasco Counties, and the District have transferred their rights and privileges in this Wellfield, as well as the Wellfield facilities, to the Authority by contracts entered into in November, 1973, and August 1974. Water produced at the Cypress Creek Wellfield is sold at cost by the Authority to users which include the City of St. Petersburg and Pinellas County. The water produced at this Wellfield comprises 29% of the County's total water system demand (20 million gallons a day), and 25% of the City of St. Petersburg's total system demand (10 million gallons a day). These water systems serve approximately 470,000 and 330,000 persons, respectively. In March 1978, the District issued a six-year consumptive use permit to the Authority, the City of St. Petersburg, and the County authorizing an annual average and maximum daily withdrawal of 30 million gallons a day from the Cypress Creek Wellfield. The Authority also began a detailed ecological monitoring program in, and around, this Wellfield in 1978. A three-year permit was then issued to the Authority in December, 1982, authorizing withdrawals of 30 million gallons a day, annual average, and 40 million gallons a day, maximum daily, from the Wellfield. The District determined by Order No. 82-28, dated December 1, 1982, that an average annual daily rate of withdrawal of 30 million gallons, and a maximum daily rate of withdrawal of 40 million gallons from the Cypress Creek Wellfield was a reasonable-beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. An application for renewal of the Cypress Creek Wellfield consumptive use permit at the quantities permitted in 1982 was filed with the District on November 7, 1985, by the Authority, the County and the City of St. Petersburg. The continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons is needed in order to meet the water supply demands of the residents of Pinellas and Pasco Counties, is in the interest of residents of Pinellas County, and will not cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the District. The regulatory level of the potentiometric surface established by the District for the Cypress Creek Wellfield has never been exceeded by prior withdrawals of water at permitted rates. Continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons will not cause the potentiometric surface level to be lowered below sea level, or any regulatory level established by the District, will not cause the surface level of water to be lowered below any minimum established by the District, and will not significantly induce salt water encroachment. The Cross Bar Ranch Wellfield is located on a 8,060 acre site in north central Pasco County, lying approximately one mile south of the Pasco-Hernando County line, and immediately east of U.S. 41. The Cross Bar Ranch Wellfield property has been owned by Pinellas County since 1976. Wellfield construction was completed in 1981. By agreement entered into on April 11, 1979, the Authority is obligated to sell the County water produced from the Cross Bar Ranch Wellfield, but any excess not currently being used by the County may be sold to other members of the Authority. A significant amount of water produced at Cross Bar Ranch is pumped to the Cypress Creek Wellfield where it is combined with that Wellfield's water, and then distributed to Pinellas and Hillsborough Counties, as well as the City of St. Petersburg, for further distribution. The water produced at these two Wellfields in combination accounts for about 60% of the County's total water system demand. Following pump tests performed from 1977 to 1979, as well as an ecological monitoring program, the District issued a modified consumptive use permit to the Authority by Order 80-9, dated February 6, 1980, for Cross Bar Ranch Wellfield. The District determined that withdrawals at an average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons from Cross Bar Ranch Wellfield was a reasonable beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. On November 7, 1985, the Authority and County jointly applied to the District for renewal of the consumptive use permit for Cross Bar Ranch Wellfield at the current permitted quantities of an annual average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons. These withdrawal rates are needed in order to meet present and future water supply demands of the residents of Pinellas, Pasco and Hillsborough Counties, provide water for environmental mitigation, and make up water when one or more production facilities cannot pump at their permitted levels. The withdrawal of water from Cross Bar Ranch Wellfield at permitted rates will not cause the level of the potentiometric surface to be lowered below sea level, or any regulatory levels established by the District, and will not significantly induce salt water encroachment. Jumping Gully is the only stream or watercourse in the vicinity under the influence of this Wellfield, and the District has not established a minimum rate of flow for Jumping Gully. Hydrologic data collected from monitor wells located at the Cross Bar Ranch Wellfield show the potentiometric surface has been above mean sea level during the operation of this facility. The District has renewed consumptive use permits for a period of ten years for the City of St. Petersburg, and the City of Lakeland Power Plant. The Authority owns, leases or otherwise controls the area within both the Cypress Creek and Cross Bar Ranch Wellfields. Polk owns, leases or otherwise controls the property identified in his amended permit application of July 26, 1988. Both the Authority's and Polk's permit applications were filed on the proper forms, and otherwise comply with the District's procedural requirements for consumptive use permits. Each party has standing to participate in this case. The proposed uses of water which are the subject of these proceedings are reasonable beneficial uses, and in the public interest. The only permit criteria that remain at issue in this case are set forth in Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code. The following findings of fact are based upon the evidence presented at the hearing: Polk was first issued a consumptive use permit for Ft. King Ranch in August, 1981, after both the Cypress Creek Wellfield and Cross Bar Ranch Wellfield had each been permitted to withdraw 30 million gallons per day. Polk's permit authorized him to withdraw ground water at an average annual rate of 420,000 gallons per day, and a maximum rate of approximately 1.94 gallons per day for irrigation of pasture grass and citrus, and cattle drinking water. A temporary consumptive use permit issued to Polk in August, 1981, was signed by him and states on its face that these additional groundwater withdrawals were necessary because of drought conditions. A modified permit was issued to Polk by the District in July, 1982, authorizing him to increase his withdrawals to an average annual rate of approximately 1.94 gpd, and a maximum rate of 5.9 gpd. Polk's wells are not metered. Prior to August, 1981, Polk did not have man made surface or groundwater withdrawal on his property. As it relates to this proceeding, the property owned, leased or otherwise controlled by Polk is known as the Ft. King Ranch, which is generally located between the Cross Bar Ranch and Cypress Creek Wellfields, and consists of approximately 6,000 acres. The Ft. King Ranch is comprised of five tracts which were separately acquired by Polk commencing in January, 1969, and ending in 1984. By 1978, Polk had acquired two of these five tracts. He leased a third tract beginning in 1971, before acquiring an ownership interest in 1981. These three tracts were designated parcels A, B, and C, and are located in the eastern and northern portion of the Ranch. These three parcels were the only tracts owned, leased or otherwise controlled by Polk at the time the first Cypress Creek and Cross Bar Ranch Wellfield permits were issued in 1978. The western tracts were acquired in 1982 and 1984, and were also referred to as the AL-BAR Ranch at hearing. Polk uses the Ft. King Ranch for a cow-calf operation, and also sod farming and seeding. From 1969 to approximately 1978, there was sufficient surface water on the Ft. King Ranch for these farming activities to be carried out without irrigation or wells. Water holes used by cattle were always wet, and lakes on the property were used for swimming and fishing. His pasture, hay, seed and sod grasses received moisture solely from rainfall. However, Polk did not establish the amounts of water used in his operations prior to the issuance of Wellfield permits. In 1976, parcels A, B, and C were used for these purposes, although Polk has frequently changed the specific size and location of acreages devoted to these land uses. In order to correct flooding that occurred on portions of the Ft. King Ranch during times of heavy rainfall, Polk sought the advice of the Soil Conservation Service in the mid-1970's. He was advised to construct a series of dikes and swales to control the flow of surface water on his property. During 1980 and 1981, Polk constructed a network of swales and ditches to divert and control the flow of surface water from portions of the Ranch needing less water to those requiring wetter conditions, such as his sod and seed operation. The swales interconnect lakes and ponds on his Ranch. He also constructed a levee on the property, and installed a lift pump. These activities have converted most of the eastern portion of his ranch to improved pasture and sod grasses, and virtually eliminated native vegetation. Polk had no professional help in the construction of his ditch-swale systems, or the levee. Beginning in approximately 1980, drier conditions were experienced at the Ranch. One of the ten driest years on record in this area occurred in 1980, and continued drought conditions in 1981 caused the District's Governing Board to declare a water shortage, and impose water conservation measures throughout the District. Some lakes and cypress swamps dried completely and failed to recharge to pre-1980 levels after rainfall. Due to reduced water availability since 1980, including drought conditions in 1985, Polk's calf weights have decreased, while the number of non-breeding cows has increased. Feed bills have increased due to reduced hay and grass production at the Ranch. Polk's bahia seed and sod crops have also declined since 1980 due to reduced surface water levels. Adequate and stable moisture is essential for seed production, and while such conditions did exist on the Ft. King Ranch prior to 1980, they have been absent since 1980. Due to the drier conditions which he noted in 1980 and 1981, Polk filed a formal complaint with the District in 1981. A site visit and pump test were conducted, and the District concluded that the Wellfields were causing less than a one foot drawdown in the Ft. King Ranch water table, and that dry conditions at his ranch were due primarily to drought. In 1985, Polk complained to the District again, and requested that it augment two lakes within the Ranch. After review of surrounding lake conditions, the District declined his request since Polk's lakes had not experienced water level declines atypical of lakes well beyond the influence of the Authority's Wellfields. Studies of water level elevations in the area indicate that the effect of Cypress Creek Wellfield pumpage is quite small when compared to natural changes in water levels due to variable rainfall and evapotransporation. Rainfall in this region is variable, and there has been a significant negative trend over time in surficial and potentiometric water levels that predates Wellfield pumpage. According to J. B. Butler, who was accepted as an expert in hydrology, the swales, dikes and levees constructed by Polk have not caused the water table or surface water level reductions experienced since late 1981. Rather, these are an attempt to divert and retain water on the property, and even in their absence, there would be no significant flow of surface water across Ft. King Ranch from an east to west direction. In addition, Butler testified that a fence line berm constructed along the northern border of the Ranch is an insignificant obstacle to the flow of surface water from the north to south across the Ranch when compared to topographic features, and has had no impact on the water tables of the Ranch. However, evidence introduced at hearing established that as early as 1981, the staff of the District concluded that the swales and elevated fence lines could be aggravating low water conditions by increasing evaporation and leakance, and by excluding surface water which would have entered the Ft. King Ranch from the north. The Authority offered competent substantial evidence to rebut the Butler testimony. Thomas Schanze, who was accepted as an expert in agricultural engineering, testified that Polk's elevated berm along his northern fence line has significantly restricted the flow of surface water onto Ft. King Ranch, and has contributed to the eastern portion of the Ft. King Ranch becoming a closed watershed. Between 1984 and 1986, approximately 700 million gallons of surface water have been excluded by Polk's water control and diversion activities. This exclusion has resulted in a diminished water table within the Ft. King Ranch of about one half foot compared with the water table on the northern side of the berm. Surface water cannot flow onto Polk's property until water levels immediately north reach flood stage. Aerial photographs of the Ft. King Ranch and surrounding properties show that the Polk property is significantly drier than surrounding properties, which include predominant wetlands. If the dry conditions experienced by Polk had been due to pumpage, the same dry conditions should be observed on surrounding properties and lands nearer the Wellfields. However, aerial photos show that lands closer to the Wellfields than Ft. King Ranch are less dry than the Ranch itself. This supports the position of the District and the Authority that Polk's own activities have had a significantly greater impact than pumpage on surface and groundwater levels. The reduction in productivity of Polk's farming activities is reasonably related to his northern berm which serves as a dike, preventing water from flowing onto Ft. King Ranch, as well as drought conditions existing in 1980, 1981 and 1985. The cumulative effect of water excluded from this property and dry weather conditions is significant, and accounts for decreased production. It was not established through competent substantial evidence that Polk's decreased production has resulted from any hydrologic impact of Wellfield pumpage. The District's expert in hydrology and ground water modeling, Robert G. Perry, concluded that significant water table declines on Ft. King Ranch due to pumping from Cypress Creek and Cross Bar Ranch Wellfields could not be confirmed. Through groundwater flow modeling and statistical analysis, he concluded that a one foot water table drawdown contour resulting from withdrawals at the rate of 30 mgd for 30 days without any recharge would not reach the Ft. King Ranch. Even in a worse case scenario of 120 days without recharge and pumpage at Cypress Creek of 30 mgd for 30 days, then 40 mgd for 30 days, and finally 30 mgd for 60 days, Perry concluded that the one foot water table drawdown contour would not reach Polk's Ranch. There is some evidence that under a worse case condition, pumpage at the Cross Bar Ranch Wellfield could result in the one foot water table drawdown contour intersecting a small portion of the western tract of the Ft. King Ranch, but this tract was not owned or leased by Polk in 1978, when the first Wellfield permits were issued. Conflicting evidence based upon steady state modeling by Craig Hutchinson of the United States Geological Survey was introduced on behalf of Polk to establish that the cumulative impact of the Wellfields could induce a significant drawdown in the water table in the area between the Wellfields, including the Ft. King Ranch. However, this evidence is rejected as less credible than the analysis conducted by Park and Phillip Davis, who was also accepted as an expert in hydrology and groundwater flow modeling. The steady state approach used by Hutchinson is inappropriate for analyzing the effects of wellfield withdrawals on the water table, because the water table is a dynamic system which is never at steady state. The transient groundwater simulation model used by the District is better suited for an analysis of impacts to the water table, although it does tend to overpredict such impacts, since it accounts for changes in rainfall. The Hutchinson analysis is also unreliable since it is based upon artificially derived antecedent water levels, rather than observed levels. Finally, he did not have required predevelopment water table data, and thus, could not verify water table predictions derived from his steady state model. A transient groundwater flow computer model used by Terry Bengtsson to estimate greater potentiometric surface and water table declines due to withdrawals from the Wellfields than predicted by Park or Davis was discredited, and shown to be unreasonable, by the results of a 28 day pump test in September and October, 1988. According to Rick Stebnisky, who was called on behalf of Polk and accepted as an expert in groundwater hydrology, the combined effect of pumping at the Cross Bar Ranch and Cypress Creek Wellfields has resulted in a significant reduction in water table and potentiometric surface levels at Ft. King Ranch, with such reductions being greater in the southern areas than northern portions of Polk's property. He testified that drawdowns have been noted since pumping began at Cypress Creek in April, 1976, with greater drawdowns occurring closest to the Wellfields, and for this reason drawdowns appear to be related to pumping rather than drought conditions. However, Stebnisky's conclusions were drawn from an overly simplistic hydrographic analysis which ignored factors other than pumpage, such as reduced rainfall, regional trends, surface drainage and non-wellfield pumpage, according to Robert G. Perry, an expert in hydrology and groundwater modeling. Stebnisky was not accepted as an expert in groundwater flow modeling. It was also established that some of the basic assumptions used by Stebnisky in predicting drawdowns were inaccurate, and not based upon accepted hydrologic principles. Therefore, when weighed and considered against other expert testimony, including that of Perry and Dr. J. I. Garcia-Bengochea, Ph.D., an expert in hydrology and environmental engineering, the testimony of Stebnisky is found to lack credibility. While Dr. Garcia-Bengochea agreed with the testimony of Stebnisky that the potentiometric surface and water table levels on the Ft. King Ranch had been somewhat reduced due PAGE 18 MISSING individual well meters, regardless of whether on-site wetlands are being augmented, and is sufficiently accurate for use in evaluating the impact of withdrawals on the water table and Floridan Aquifer. As a condition for renewal of the Authority's permits, the District has required that flow measuring devices or methods be installed for each augmentation discharge point, although generally augmentation of lakes and wetlands within wellfields is not metered. The allowable drawdown levels of potentiometric surface for the Cypress Creek Wellfield established by the District have never been reached. The lowest levels occurred during severe drought conditions in 1981 and 1985. However, even during these times, the lowest potentiometric surface level was 8.53 feet above regulatory levels. Notwithstanding the testimony of Philip Waller, an expert in hydrology, pumping from Polk's irrigation Wellfields have not had a significant impact on the Cypress Creek Wellfield because Waller's model assumptions are extreme, according to Robert G. Perry, whose field of expertise includes groundwater modeling. These unrealistic assumptions included that Polk would operate his irrigation wells at maximum capacity for 120 days, and that there would be no recharge, even though irrigation, like rainfall, would be expected to result in some recharge. Even under these extreme assumptions, Waller's modeling only produced a one foot drawdown at Cypress Creek Wellfield, which would still be well within regulatory levels established by the District, based upon data for the drought years of 1981 and 1985. Since 1979, Cypress Creek Wellfield has averaged approximately 30 million gallons per day, with the maximum withdrawal occurring in May, 1983, when it averaged 34.2 mgd. From 1981 to 1985, the average withdrawals from Cross Bar Ranch Wellfield remained stable at 13 mgd, but since 1986, the pumpage has increased to over 15 mgd due, in part, to the use of water from Cross Bar to compensate for contaminated wells shut down at the Eldridge-Wilde Wellfield. For purposes of Rule 40D-2.301(1)(c), Florida Administrative Code, the District does not consider the use of water that occurs naturally, without pumping or diversion, for use on crops or other agricultural purposes to be, an existing legal use of water, because it does not require a permit. The District does not apply Rule 40D-2.301(2)(e) to protect agricultural crops, but rather to protect naturally occurring vegetation. When an application to renew a consumptive use permit is reviewed by the District, and that renewal does not seek an increase in the quantity of water withdrawals, "legal users" are those present prior to the original permit. On May 17, 1988, a Final Order was entered in DOAH Case No. 88-0693R declaring the District's Rules 40D-2.301(3)(b), (c), and (d), Florida Administrative Code, which otherwise would apply in this proceeding, to be an invalid exercise of delegated legislative authority. The Authority's applications were declared complete by the District on June 18, 1987, and the District staff recommended issuance of these permits on August 14, 1987. Modifications to the draft permit were made by the District on December 28, 1988, and these modified draft permits are acceptable to the Authority. The latest draft permits contain stated conditions which include the requirement that the Authority directly measure the amount of water it uses to augment the water level of on-site wetlands. On February 22, 1989, the Authority and the District filed a Joint Notice of Settlement in Case Number 87- 4644 by which they settled their dispute as to the duration of consumptive use permit renewals for the Wellfields, and provided for a ten year permit for Cypress Creek, and a six year permit for Cross Bar Ranch Wellfield. Polk submitted his original permit application on April 13, 1987, and then amended his request on July 26, 1988. The District has proposed to issue a draft permit to Polk, with stated conditions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving the consumptive use permit applications of the West Coasts Regional Water Supply Authority and Pinellas County for the Cross Bar Ranch and Cypress Creek Wellfields, with conditions proposed by the District, and also approving the consumptive use permit application of Freeman F. Polk, with conditions proposed by the District. DONE AND ENTERED this 10th day of July, 1989, in Tallahassee, Florida. 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 10th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4644, 87-4645, 87-4647, & 88-1169 Rulings on the District's Proposed Findings of Fact: Adopted in Findings 6, 21. Rejected as unnecessary. Adopted in Finding 6. Adopted in Finding 38. Adopted in Finding 21. Adopted in Finding 11. Adopted in Finding 38. 8-11. Adopted in Finding 20. 12. Adopted in Finding 21. 13-14. Adopted in Finding 22. Adopted in Finding 27. Adopted in Finding 25. 17-19. Adopted in Findings 25, 26. 20-22. Adopted in Findings 26, 28. 23-48. Adopted in Findings 31 through 35. 49-60. Adopted in Findings 28 through 30. 61-64 Adopted in Finding 36. 65-68. Adopted in Finding 37. Rulings on the Authority's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 4, 10. Adopted in Finding 2. 4-6. Adopted in Finding 39. Adopted in Finding 18. Adopted in Findings 21, 22. Adopted in Finding 40. 10-11. Adopted in Finding 3. 12-14. Adopted in Finding 36. Adopted in Findings 6, 38. Adopted in Finding 5. 17-19. Adopted in Findings 6, 21. 20. Adopted in Findings 7, 16. 21-23. Adopted in Finding 41. 24-25. Adopted in Finding 9. 26-27. Adopted in Finding 36. Adopted in Findings 11, 38. Adopted in Finding 10. Adopted in Finding 11. 3132 Adopted in Findings 11, 21. 33. Adopted in Findings 12, 16. 34-36. Adopted in Finding 41. Adopted in Finding 21. Adopted in Finding 24. Adopted in Finding 29. Adopted in Finding 24. 41-42. Adopted in Finding 22. 43-45. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 25. Adopted in Finding 26. Adopted in Findings 26, 28. 50-53. Adopted in Finding 20. Adopted in Findings 20, 21. Adopted in Finding 20. Adopted in Finding 37. Rejected as not based on competent substantial evidence. Adopted in Finding 41. Rejected as unnecessary. 60-62. Adopted in Finding 35. 63. Adopted in Finding 36. 64-70. Adopted in Findings 34, 35. 71-76. Adopted in Findings 33 through 35. 77-78. Rejected as unnecessary and irrelevant. 79-80. Adopted in Finding 34. 81-87. Adopted in Finding 32. 88-91. Adopted in Findings 26 through 35. 92-96. Adopted in Findings 29, 30, but otherwise Rejected as unnecessary and cumulative. Adopted in Finding 28. Adopted in Finding 29. 99-100. Adopted in Finding 30. 101-102. Adopted in Finding 37. Rejected as unnecessary and cumulative. Adopted in Finding 37. Rejected in Finding 37. Adopted and Rejected in part in Finding 37 Ruling on Pinellas County's Proposed Finding of Fact: (The County also adopted the Authority's Proposed Findings.) 1. Rejected since the statement proposed by the County is not a finding of fact, but simply a statement on the evidence. Evidence which was not admitted at hearing has not been considered. Rulings on Polk's Proposed Findings of Fact: Adopted in Finding 3. Adopted in Findings 9, 10. Adopted in Finding 21. Rejected in Findings 6, 11, 21. Adopted in Finding 22. Adopted and Rejected in part in Findings 25 through 27. 7-8. Rejected in Findings 25 through 27. Adopted in Finding 25. Adopted in Finding 24. 11-13. Rejected in Findings 24, 29, 30. Adopted in Finding 37. Rejected as argument on the evidence and not a proposed finding of fact. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Douglas M. Wyckoff, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Thomas E. Cone, Jr., Esquire 202 Madison Street Tampa, Florida 33602 John T. Allen, Jr., Esquire Chris Jayson, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Bram D. E. Canter, Esquire 306 North Monroe Street Tallahassee, Florida 32302 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34699-6899
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact: On April 21, 1983, the College filed an application with DER seeking a permit to relocate a drainage ditch that runs through the College property, to fill the existing drainage ditch, and to install a large culvert in the Coconut Creek Waterway which would serve as a road crossing connecting the proposed new College parking lot and N.W. 39th Avenue in Coconut Creek. Upon review of the original application, DER determined that it would not meet the DER's water quality criteria. On September 30, 1983, the College revised its application. It is the revised application which lies at the heart of the present controversy. The revised application no longer contains a proposal to fill in the entire ditch that runs through the College property. Rather, it is new proposed to install two 36-inch culverts in the existing ditch to provide access roads to the proposed new College parking lot. The College also proposed to dredge 832 cubic yards from .5 acres and to install a large structural culvert (measuring 14 feet, 1 inch, by 12 feet, 10 inches) in the Coconut Creek Canal. The existing ditch which runs through the College campus was originally constructed as a drainage ditch. The only water which would flow through that ditch would be provided by run off from the N.W. 11th Street area. At the present time the ditch through the College is plugged in two places. Some time in late July or early August of 1984, contractors employed by the College placed two earthen plugs in the ditch that runs through the College. This was done without benefit of a Department permit and was apparently the result of some confusion on the part of the contractors, the exact nature of which is not explained in the record in this case. The two earthen plugs were not installed in the manner proposed by the subject application, nor were they installed in the locations proposed in the subject application. In their present condition the two earthen plugs effectively prevent the flow of any water through the ditch that runs through the College. The north end of the ditch that runs through the College campus was formerly connected to Coconut Creek Canal. A portion of Coconut Creek Canal runs parallel to N.W. 11th Street. Following the installation of the earthen plugs there was a decrease in the water quality of the portion of Coconut Creek Canal that parallels N.W. 11th Street. The water became cloudier than before and there was some silting. There were fewer base and bluegills and more mudfish. There has also been an occasional unpleasant odor from the area which was not present prior to the installation of the earthen plugs. Also, the residents along N.W. 11th Street complain of an increased mosquito Population since the installation of the earthen plugs. 1/ The proposed 36-inch culverts are substantially larger than is necessary to handle the anticipated flow of water through the College ditch. Calculations made using the methodology approved by the Florida Department of Transportation indicates that 21-inch culverts would have been sufficient to handle any anticipated flow of water through the College ditch. Although the culverts will require some periodic maintenance, they have been designed to minimize the need for maintenance. Properly maintained, the proposed 36-inch culverts will not pose any impediment to the flow of water through the College ditch. There is usually no detectable current or water flow in either Coconut Creek Canal or the College ditch in the area where the College proposes to install the three culverts. Accordingly, inasmuch as there is usually no detectable flow of water, any impediment to water flow which might be caused by the culverts is insignificant. This is particularly true with regard to the issue of weed growth. While it has been contended that the culverts might reduce the rate of water flow to the extent that aquatic weed growth would be promoted because of the stillness of the water, long before this permit was ever applied for and long before the earthen plugs were installed the City of Coconut Creek had serious problems with aquatic weeds growing in all of its canals. As described by one of the City's former mayors, several years ago the hyacinths covered the canals solid from bank to bank and were growing so thick and solid that rabbits could actually run across the canals hopping on the hyacinths. This type of hyacinth growth only occurs in still water. The City has been able to control the hyacinth problem by an ongoing weed control program which consists of spraying chemicals on the plants several times each year. The small amount of water flow which does occur in Coconut Creek Canal is directly related to stormwater runoff, including water generated by the residents along N.W. 11th Street washing their cars and watering their lawns. The portion of Coconut Creek Canal which extends eastward from the College ditch is a dead end system in which the only flushing is due to water runoff from the street. The installation of the proposed large culvert in Coconut Creek Canal would never cause the water to back up in the canal or otherwise impede the flow of water in the canal. A tube 21 inches in diameter would be sufficient to carry away the worst expected rain water conditions and the proposed culvert is, in essence, a tube with an average diameter in excess of 13 feet. The large culvert would cause no change in the volume of water flowing through the canal. It might cause a de minimis headloss, which is a change in the water level from one side of the culvert to the other. Any such headloss would be on a magnitude of approximately 1/1000th of a foot; about 1/3 of a millimeter. The installation of the large culvert in the Coconut Creek Canal would actually increase the velocity of any water flow through the culvert. In conjunction with the installation of the large culvert, the depth of Coconut Creek Canal would be increased to an average of six or six and one-half feet from its present average of approximately five or five and one-half feet. Notwithstanding the decrease in the water quality of the portion of Coconut Creek Canal that parallels N.W 11th Street which apparently resulted from the unauthorized installation of the two earthen plugs, when the water in that portion of the canal was tested by the City's export witness some eight or nine months later, the water quality was within established state standards. And while the construction activity associated with the installation of the two 36-inch culverts in the College ditch effect on the water quality in Coconut Creek Canal, there is no evidence that water quality standards would be violated on either a short or long-term basis. A small amount of habitat would be destroyed, but it is likely that there would be rapid recolonization. No rare or endangered animal species would be affected. The habitat for birds would also recolonize and the birds and fish displaced by construction would return. Any turbidity problems during construction would be controlled by the use of turbidity screens. With regard to navigability, once installed the large culvert would provide a vertical clearance from the surface of the canal of approximately six feet. This clearance would prevent larger boats from passing through the culvert. The vertical clearance of existing canal bridges in the area varies from six and one-half to eight feet. Installation of the larger culvert would not seriously impede navigation. The large culvert would not constitute a navigational hazard nor would it impede the flow of navigable water. As compared to the situation which existed prior to the installation of the two earthen plugs, installation of the two 36-inch culverts would totally stop any boat traffic through the ditch that runs through the College. Nevertheless, curtailment of boat traffic through the College ditch would not seriously impede navigation because any destination which could be reached by traveling through the College ditch could be reached via alternative canal routes which are not affected by this project. As with the larger culvert, the 36-inch culverts would not constitute navigational hazards nor would they impede the flew of navigable water. If the total project envisioned by the College is completed, the culverts will provide a new route for motor vehicle access to an expanded College parking lot. The increased volume of motor vehicle traffic would produce an increased amount of air and noise pollution in the vicinity of N.W. 39th Avenue. A study of the results of the increased motor vehicle traffic based on a "worst case" scenario reveals that even with the additional air and noise pollution generated by the increased motor vehicle traffic, the air and noise pollution levels in the area would be far below the air and noise pollution standards established by the state and federal governments. In the formulation of the foregoing findings of fact I have, of necessity, relied to a large extent on the opinions of expert witnesses who testified in the case. Where there is conflict in the testimony of the expert witnesses, I have generally credited the testimony of the expert witnesses called by the College and the Department because I have found their testimony to be more consistent with other evidence in the case and have found that there is a better factual foundation in the record for their opinions than for the opposing opinions.
Recommendation For the foregoing reasons it is Recommended that the Department issue a Final Order which would GRANT the College's application to install two 36-inch culverts in the College ditch and a 14-foot, 1-inch, by 12-foot, 10-inch, culvert in the Coconut Creek Canal, subject to the conditions set forth in the Department's Notice of Intent to Issue. DONE and ORDERED this 8th day of October, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH 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 8th day of October, 1984.
The Issue The issues are: (1) Whether Walter Vernon Creech (Petitioner) is entitled to purchase past service in the Florida Retirement System (FRS) for a period of service with the City of Live Oak (City), during which time he became vested in the City's local retirement plan and elected to retain those vested benefits prior to commencement of employment with the Suwannee County Sheriff's Department, and (2) whether Petitioner is entitled to variance and waiver of regulations which prohibit purchase of prior service for FRS inclusion when the member was vested at the time in a local retirement system.
Findings Of Fact Petitioner was employed as a police officer with the City of Live Oak, Florida, and is currently a deputy sheriff with the Suwannee County Sheriff's Department. On March 1, 1990, the Suwannee County Sheriff's Department assumed the functions of the Live Oak Police Department and the Police Department was disbanded. Petitioner and other members of the Police Department became employees of the sheriff's office. Petitioner has been continuously employed by the sheriff's office since 1990 and presently is the patrol commander for the Sheriff. The ordinance creating the City of Live Oak Retirement System was repealed on October 12, 1990. The pension plan was terminated. An annuity was purchased by the City of Live Oak following termination of the pension plan from the Franklin Life Insurance Company for Petitioner, a vested member of the former pension plan. The annuity entitled Petitioner to future benefits. Non-vested members of the police force were refunded their previous contributions to City of Live Oak retirement plan. Several months prior to the retirement annuity purchase and the repeal of the City of Live Oak Retirement System, Petitioner had elected, on April 9, 1990, by ballot provided by Respondent to retain his vested benefits with the annuity provided by the City and "begin membership in the [FRS] effective March 1, 1990." The ballot choice selected by Petitioner stated specifically that "I understand I may not purchase past service in the FRS for service under the local retirement system which may be used to obtain a benefit." Petitioner's position is that he was not aware on April 9, 1990, that he could select the second ballot choice that would have permitted him to withdraw from City of Live Oak Retirement system and join the FRS at that time. He represents that he was told specifically by the sheriff at the time that he could not elect this option. The sheriff is now deceased. At the time he joined the sheriff's office, Petitioner had not vested in the FRS, although he had prior service as a state employee. No evidence establishes on-site visitation by Respondent employees upon transfer of police functions to the County Sheriff's Office, or direct advice by Respondent employees to Petitioner or any other transferring employees. A letter, however, dated April 18, 1990, from Loraine Voss, a former Bureau Chief with Respondent, documents that there were communications between Respondent employees and the now-deceased sheriff. In pertinent part, the letter advised that employees were eligible to purchase past service credit in FRS provided such past experience would not be used to provide a benefit in another retirement scenario. Absent the letter authored by Voss, Respondent provided no documented direction regarding retirement options to Petitioner at the time of his election to retain his service in the city's retirement annuity. The action of local authorities (i.e., the mayor of the City of Live Oak and the county sheriff) in advising the transferees on retirement matters was not taken at the behest of or on behalf of Respondent. As established by testimony of the now-retired police chief, Jack Garret, members of the police force were aware at the time that their contributions could be withdrawn from the City's retirement fund even though a member might be vested. Before the police force of the City of Live Oak was disbanded, Marvin Clayton, a representative of the Florida Department of Insurance, addressed the members of the force. Clayton recalled that at the February 9, 1990, meeting, he informed the officers of the force that persons who were vested in the City's plan could have their contributions refunded and thereby become eligible to buy past service with the FRS. Local police and fireman retirement funds were regulated by the Department of Insurance at that time. In 1998, Petitioner changed his mind. He contacted Respondent's representative in order to purchase additional retirement credit in FRS for his time with the City of Live Oak Police Department. By letters dated June 15, 1998, and again on October 15, 1998, he was informed by Respondent's representatives that he was not eligible to purchase such service because of provisions of Sections 112.65(2) and 121.081(1)(h), Florida Statutes. As established at the final hearing, Petitioner would have to assign any benefits of his annuity to FRS and pay required FRS contributions plus interest since 1990 in order to acquire FRS credit today for his time with the City of Live Oak Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter an order denying (1) the Petition for Waiver and Variance and (2) also denying the request to be permitted to purchase for creditable FRS service the time spent by Petitioner in the employment of the City of Live Oak Police Department. DONE AND ENTERED this 23rd day of August, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of August, 2000. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive Tallahassee, Florida 32303 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Petitioner Ronald T. Hopwood is president of Last Resort Fish Camp Association, Inc. (hereafter "Association"), the owner of Big Pine Island located in Lake County, Florida. Big Pine Island consists of approximately 26 acres of land above the mean high watermark and 166 acres of submerged and transitional zone lands. The Association's property is more accurately described by the Department's exhibit III, Map C. Petitioner Milan M. Knor submitted to the Department a dredge and fill permit application, File No. 35-20062-4E, to dredge 7,350 plus-or-minus cubic yards of fill material waterward of the lien of ordinary high water and adjacent to the Petitioner's uplands (Department's Exhibit 12). It is proposed that the fill material or spoil be deposited on the landward side of a perimeter canal which presently exists along the southwest one-third of the island. When the project is complete, the canal will encircle the entire island, the fill material resulting therefrom will be deposited on the island side of the perimeter canal below a 59.5-foot elevation (Department's Exhibit III, Map A). During the dredging, turbidity curtains would be utilized. As part of the project, Petitioners propose to install two (2) 42-inch diameter culverts at the east and west ends of a causeway which connects Big Pine Island to the mainland (Department's Exhibit III, Map B). The purposes of the proposed project are to improve the water quality of the adjacent canals and wetlands, provide fire protection, reduce algae blooms, and stabilize bottom sediments (Petitioners' Exhibit A, Department's Exhibit 1). The elevation of 59.5 feet above mean sea level was established by the St. John's River Water Management District as the ordinary high water elevation of Lake Griffin. The desirable levels of Lake Griffin vary between 58.07 and 59.38 feet. A dredge and fill permit was issued fro this project by the St. John's River Water Management District. In its final order granting the permit, the Governing Board of the District found, inter alia, that the water quality of the district would not be significantly diminished by the channelization of the marsh, that the new culverts would increase the rate of flow and the flushing of the marsh by providing increased northerly access for the water flow, that the excavation would enhance navigability and flow through the interior canal, and that the channelization would promote fire protection. The Board believed that the installation of the culvers ". . . will provide a positive benefit to the marshlands by correcting the prior damming effect of the causeway " (Petitioner's Exhibit D). The permit was issued by the Governing Board over the recommendation of its staff to deny the permit (Department's Exhibit 16). On July 26, 1979, Mr. James Morgan, a filed inspector with the Department, conducted an on-site field inspection of the proposed project. Mr. Morgan complied an appraisal report, Department's Exhibit 11, which evaluated the feasibility of extending the existing 1,200-foot canal by approximately 3,000 feet. Mr. Morgan found that a portion of the area to be excavated, approximately 600 feet, was previously cleared and vegetated by arrowhead (Sagittaria, Sp.), paragrass (Panicum purpurascens), bloodroot (Lacnanthes caroliniana) and sawgrass. 1/ Standing water was present in portions of the previously cleared area. The remaining 2,400 feet were in a natural state, dominated by willows (Tudwigia peruviana), wax myrtles (Myrica ceriferia), arrowhead and sawgrass. Surface waters of the Oklawaha River and Lake Griffin were present in part of this area; however, at the time of the field evaluation, Lake Griffin's surface waters were depressed by approximately six (6) inches below its established ordinary high water elevation. Raising the lake's elevation to its high water elevation, 59.5 feet, would result in the entire project site being inundated with surface waters. Dip net samples yielded organisms which constitute the lowest levels of an aquatic food chain including amphipods, dragonfly naiads, diptera larvae and mosquito fish. Mr. Morgan's report concluded that ". . . [d]ue to the severity of the anticipated impact of the proposed canal construction, no environmentally acceptable modification is available other than to permit the system to function naturally. . . ." This conclusion was based on the following negative aspects of the project. The collecting and storing of organic materials in the canal which would reduce the dissolved oxygen level during biodegradation to lethal levels for fish and other aquatic organisms; The physical alteration and elimination of a natural wetland community; The increase in turbidity during excavation; and The placement of spoil below the controlled elevation of Lake Griffin which would reduce the lake and river flood storage capacity as well as the area capable of supporting healthy aquatic plant and animal life. It was recommended that the proposed culverts be installed and that one canal- front lot be utilized as a common lot for all property owners, thereby providing open water access to all property owners. Lake Griffin is presently in a highly eutrophic stated caused by large amounts of algae growth and weeds in the water column. Agricultural farming, municipal sewage treatment plants, and citrus processing plants are among the sources of nutrients causing the high algae growth. The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level buildup in the system. By increasing the water flow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved. The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter similar to the human kidney by filtering deleterious substances from the surface water. Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklawaha chain of lakes by a series of control structures. This "backwater" effect, which is caused by movement in the Oklawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved. A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and the completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water lever maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of an existing berm. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two- culvert system proposed by the Petitioners would have a cosmetic effect and not significantly improve the natural water flow between the canals. If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself. The proposed filling of the island which is to occur below the 59.5- foot elevation will reduce the river's flood storage capacity and the area capable of supporting plan and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of low lying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose. Petitioners have not been denied the use of their property either by the Department's denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.
Recommendation Therefore, it is recommended that the Department issue a permit to Petitioners to complete construction of a perimeter canal surrounding Big Pine Island subject to the following conditions: That the applicants install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway. The number and size of the culverts or other structures will be determined by the Department. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below 59.5 feet in elevation. That the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process. DONE AND ORDERED this 25th day of August 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH 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 25th day of August 1980.
