The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500043 requested water from one (1) well. The center of withdrawal will be located at Latitude 27 degrees 40' 38" North, Longitude 82 degrees 29' 31" West in Hillsborough County. Said withdrawal is for disposal off-site. This application is for an existing use. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on May 14 and May 21, 1975 pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application, map of the premises, legal description, receipts of certified mail, copy of the Notice, and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The witness for Permittee was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes with the exception as enumerated in No. 7. Upon request of the Hearing Officer a Joint Stipulation was filed in which it was agreed that the following conditions to the permit should be attached: "1. That applicant, Carol A. Ranallo, construct two observation wells on the south side of the pit mutually agreeable locations by inserting six (6) inch casings and screens to the depth of at least fifty (50) feet. The casings to be grouted in the bore hole from the bottom of the casing to the top of the ground level. The sites of the observation wells shall be selected by James Hudson of Delta Engineering Company and G. P. Szell within 15 days after issuance of the Consumptive Use Permit. 2. That the applicant or its agents or employees submit monthly readings to the staff of the Southwest Florida Water Management District of the chloride content of the water being withdrawn from the two wells and the level of the water table as read and determined under static conditions."
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Findings Of Fact The Petitioner in this matter is Capeletti Brothers, Inc., a Florida corporation. .The Respondent is the State of Florida, Department: of Environmental Regulation, an agency of the State of Florida with regulatory authority granted pursuant to Chapter 253, Florida Statutes, and Chapter 403, Florida Statutes, and those rules attendant thereto. Through its Petition as received by the State of Florida, Department: of Environmental Regulation, the present: Petitioner has filed a formal proceeding pursuant to Subsection 120.57(1), Florida Statutes, and through this Petition has challenged the Department's assertion of jurisdiction to require an-environmental permit and in the alternative has requested that the permit be granted if it is determined that a permit is necessary. (The jurisdictional question was ruled on by order dated December 7, 1979.) The Petitioner's activity which fostered the current dispute between the parties involved the Petitioner's intention to excavate certain property in Broward County, Florida, and through such excavation remove rock fill material constituted primarily of limestone and leave in place a quarry containing water. The Petitioner holds an option to purchase the property in question subject to the granting of necessary environmental permits to conduct the excavation. The terms and conditions of that option to sell may be found in the Petitioner's Exhibits 10 and 11, admitted into evidence. The Petitioner had intended to use the fill material in the furtherance of a road building project by contract entered into between the Petitioner and the State of Florida, Department of Transportation, the contract award being made on February 23, 1977. The parties to that contract terminated the contract prior to any permit for dredging having been granted; however, Petitioner still desires to excavate at the site for the purpose of obtaining fill material for future building projects and the nature of the option to purchase would allow the Petitioner to continue to pursue its efforts at obtaining a permit, notwithstanding the termination of the original agreement between Capeletti Brothers, Inc., and the State of Florida, Department of Transportation. The Respondent has issued a Notice of Intent to Deny the permit by a letter dated March 26, 1979, and a copy of the Notice of Intent to Deny may be found as Exhibit "A" to the Petition. This Notice of Intent to Deny followed the receipt and review of Capeletti Brothers, Inc.'s application for permit dated October 18, 1978. In addition, the Respondent has asserted permit jurisdiction based upon grounds not set forth in the Notice of Intent to Deny. This claim for jurisdiction is a claim for jurisdiction under the provisions of Chapters 253 and 403, Florida Statutes, and their associated rules. A copy of the application for permit may be found as Petitioner's Exhibit No. 1 admitted into evidence and this application contains sketches showing the location of the proposed project with reference to the surrounding terrain and other features. The proposed project site consists of approximately forty-four acres of land located south of Andytown, Florida, and west of State Road 25 (U.S. 27). The site is surrounded by Alligator Alley to the north; State Road 25 to the east, with a contemplated borrow canal to be constructed between State Road 25 and the project location, immediately adjacent to State Road 25; to the west by Florida Power and Light patrol road, with a borrow canal running north and south located west of the patrol road and Levee 37 further west of the borrow canal, this levee being maintained by the South Florida Water Management District. To the south of the project is an access road which grants access to the Florida Power and Light patrol road. The quarry which is to be dug on the acreage in question will not intersect either of the borrow canals referred to above. Upon completion, the pit area will consist of approximately twenty-two acres of open excavation approximately forty feet deep with a littoral zone constituted of sawgrass. At the conclusion of the project, all fill material that has been excavated will have been removed from the project site and the access road to the project site destroyed. The pit will be left full of water that has entered the pit at the excavation during the dredging. That water will be constituted primarily of groundwater located immediately below the surface in pockets found in the limestone fill material. The displacement of limerock will allow the groundwater to fill the void. Although the water which enters the excavation site will be primarily groundwater, the waters within its boundaries will eventually have the characteristics of surface waters due to the design of the activity being much like a natural pond. Approximately four thousand feet south of the project site is an abandoned rock quarry with an access road from State Road 25 and approximately two miles south of the project site is an active rock quarry operated by Rosen, Rosen and Tupler. The nature of the Rosen, Rosen and Tupler quarry is similar to that as contemplated by the Petitioner's plan. There are other rock quarries of similar nature located in the vicinity of the project site. The project site does not receive surface flows or sheet flows from adjacent properties due to the fact that the project site is surrounded by dykes and borrow canals which block surface flows or sheet flows from any adjacent properties. The surface water flow on the property is in a more or less southeasterly direction. The rainfall that occurs at the project site causes the project site to be inundated at times with standing water as deep as six or eight inches. This water will not exit the property except in times of high incidence of rain, when the water may overflow the Florida Power and Light access road and make entry into the borrow canal adjacent to State Road 25, gaining such access at the southeast of the project site. At present, part of the borrow canal east of the project site and adjacent to State Road 25 has been filled in. As stated before, this area will be replaced by a future excavation of a borrow canal in the area now covered. The surface water which stands on the project site normally percolates into the ground or evaporates into the atmosphere. The primary vegetation at the project site is sawgrass. The project: as contemplated would remove some of these grasses and attached heavy muck soils, but there would remain a sawgrass zone between the contemplated borrow canal located east of the project and the Levee 37 borrow canal located west of the project. The borrow canals located to the east and west of the project site flow south to the South New River Canal, which runs generally east and west. The waters collected in the South New River Canal are subject to being pumped through the pumping station S-9 which distributes water to the west or the water may be carried through the South New River Canal in an easterly direction, eventually entering the South New River, a natural waterway subject to navigation. The South New River is approximately twenty miles from the project site. The South New River empties into the Atlantic Ocean. Those waters which are pumped westerly through pumping station S-9 may enter other natural waterways and eventually the Gulf of Nexico by transportation through a series of artificial canals and natural water connections. Although the Petitioner does not intend to introduce contaminants at the proposed project site during the preparation stage; stage of excavation and stage of evacuation, the testimony concerning the project site and an active quarry of similar nature in the immediate vicinity, and other similar quarries, establishes that it could be reasonably expected that oils, greases and lead would be dispersed in the area of the quarry pit, the immediately adjacent wetlands and at times of high incidence of rainfall, into the borrow canals adjacent to the property. However, before the contaminants reach the borrow canals by overland sheet flow, they will be filtered out by the wetlands. The contamination into the pit would find its way into the Biscayne Aquifer, the Aquifer at the project site being only a foot or so beneath the surface., The introduction of contaminants into the Biscayne Aquifer at the project site will eventually lead to the direct mixing of those contaminants with portions of the Biscayne Aquifer adjacent to the project site, in particular west of the project site in the containment area which is part of the system of submerged lands of the state and to the borrow canal east of the project site. There is also the possibility of copper, zinc, iron, chromium, manganese, dieldrin and polychlorinated biphenyls contaminants being introduced into the pit (quarry). in association with the project, though this possibility is more remote than in the case of the substances previously mentioned and the possibility is so remote that it is not reasonably expected to occur. Therefore, these are not substances for which the Petitioner must do actual testing to show that they do not exceed water quality standards in order to establish necessary reasonable assurances. The facts presented did not give rise to even a potentiality for the presence of other regulated substances that might exceed applicable water quality standards, with the exception of phenols which are reported next. Phenolic-type compounds were found in the active and inactive quarry pits similar to the proposed installation These compounds as detected in the sample and reasonably expected at the project are naturally occurring phenomena and not the direct product of the mining activity. The mining will create turbid conditions and there will be fluctuations in dissolved oxygen concentrations and BOD values and changes in pH values in the pit. The above-referenced contamination and variations in values would be injurious to human health or welfare, animal and plant life and property and, as a consequence, interfere with the enjoyment of life and property, if found to exceed the Respondent's applicable water quality standards. The Petitioner, if allowed to carry out the project, has given specific reasonable assurance that it will not violate the Respondent's applicable water quality standards related to the turbidity, dissolved oxygen, BOD, lead, oils and greases, and pnenols. See Rule 17-3.05(2), Florida Administrative Code. Other substances-and conditions found in that subsection of the rule not being reasonably expected to occur, necessary reasonable assurance has been established for those. There will be no discharges of heated water. See Rule 17-3.05(3), Florida Administrative Code. The project site does not involve outstanding Florida waters within the meaning of Rules 17-3.041 and 17-4.242(1), Florida Administrative Code. Testimony offered in the course of the hearing shoes that in similar projects in terms of their location and purpose, the State of Florida, Department of Environmental Regulation, has at times disclaimed its jurisdiction to require a permit and at other times granted permits.
The Issue Whether Save the Manatee Club has standing in this proceeding? Whether the exemptions in paragraphs (3), (5) and (6) of Rule 40D-4.051, Florida Administrative Code, (the Exemptions) are "invalid exercises of delegated legislative authority" as defined in paragraphs (b) and (c) of Section 120.52(8), Florida Statutes? Whether the Exemptions violate the prohibitions and restrictions on agency rulemaking contained in the last four sentences of Section 120.52(8), Florida Statutes?
Findings Of Fact The parties Petitioner, Save the Manatee Club, Inc., is a not-for- profit corporation dedicated to protecting the manatee. Respondent, The Southwest Florida Water Management District, is one of five water management districts in the State of Florida. A public corporation created pursuant to Chapter 61- 691, Laws of Florida, the District's geographic boundaries encompass a number of counties or some part of them including the three counties on the shores of Tampa Bay: Hillsborough, Pinellas and Manatee. See Section 373.069(2)(d), Florida Statutes. Within this boundary, the District is generally charged with the protection of water resources and with the management and storage of surface waters of the State pursuant to Part IV, Section 373.403 et seq., Florida Statutes. Intervenor, South Shores Properties Partners, Ltd., is a limited partnership composed of a subsidiary of Tampa Electric Company (TECO) and another business organization, Shimberg Cross Company, referred to by its President Glen Cross as "actually SCSS" (Tr. 133), apparently an acronym for Shimberg Cross Company. Mr. Cross' company is the general partner in the South Shores partnership. South Shores was formed in anticipation of closing on a contract entered by Shimberg Cross to purchase a parcel of real estate in Hillsborough County. The closing proceeded in January of 1998. On January 23, 1998, eight days or so before the closing, South Shores was formed as "a limited partnership organized under the laws of the State of Florida." (Petitioner's Exhibit no. 15). It succeeded to the contract rights of Shimberg Cross and then, pursuant to the closing, became the owner of the real estate subject to the contract. South Shores hopes to sell the property to Atlantic Gulf Communities, an organization that will actually develop it. If the arrangement with Atlantic Gulf Communities is not consummated, South Shores will look for another developer or develop the property itself. No matter what party (if any) is the actual developer, South Shores, as the present owner, now seeks the benefit of the Exemptions in support of a District- issued conceptual permit for development of the parcel in Hillsborough County (the Parcel). The Parcel and Its Proposed Development The Parcel is 720 acres in southwestern Hillsborough County. South Shores proposes to use it for a multi-phase, mixed-use project. The development project is denominated "Apollo Beach aka (sic) Bay Side" (Petitioner's Exhibit 13) on the draft of the conceptual permit attached to the District's Notice of Proposed Agency Action. Atlantic Gulf Communities calls it "Harbor Bay". (Petitioner's Exhibits 3 and 4). (It will be referred to in this order as Apollo Beach/Bay Side). If all goes as planned by South Shores, the Parcel's developer (whether South Shores, Atlantic Gulf Communities, or some other party) will be able to provide the residential portion of Apollo Beach/Bay Side with direct access by boat to Tampa Bay through an existing canal system on the Parcel. For now access to the bay is blocked by an earthen berm or "plug." With the plug in place, boat access to the bay from the canals can only be achieved by means of a boat lift. A lagoon is also part of South Shores' development plans for Apollo Beach/Bayside. Not yet excavated, the lagoon will allow residents to harbor boats close to their residences. If the lagoon is dug, a boat lift (different from the one necessary to allow boats to cross the plug if left in place) will be constructed to give the boats access to the canal system. With access to the canal system established, once the plug is removed, the boats will have unrestricted access to Tampa Bay. In the "Abstract" section of the conceptual permit proposed for issuance by the District, the project was described as follows: Apollo Beach (a.k.a. Bay Side) is a proposed multi-phase, mixed use development on approximately 720.0 acres in . . . Southwestern Hillsborough County. The project will include single-family and multi- family residential areas and commercial sites. The property is in close proximity to Tampa Bay, West of U.S. Highway 41 and immediately south of the existing Apollo Beach development. The site is presently undeveloped but does contain an existing manmade canal system that is tidally connected to Tampa Bay. The Applicant has demonstrated that the proposed project has an Environmental Resource Permit exemption pursuant to Chapters 40D-4.051(3)(5) and (6), F.A.C. and will only require Standard General Permits for Minor Surface Water Management Systems for the future construction in accordance with Chapter 40D-4.041(4), F.A.C. Because of this exemption, this Conceptual Permit will only review the storm water quality aspects of the project in accordance with 40D-301(2) and will not address storm water quantity issues or impacts to wetland/fish and wildlife habitats. The project will include the realignment of existing Leisley Road and the construction of a roadway system to serve the proposed residential and commercial areas. The project will also include the excavation of a "fresh water Lagoon" approximately 136 acres in size. Most of the proposed single-family residential lots will be constructed on the "Lagoon" or existing canal system. Surface water runoff from the upland portions of the project will be treated in 25 proposed ponds or isolated wetlands prior to discharge to the "Lagoon" or existing canal system. (Petitioner's Exhibit no. 13.) The ultimate effects to manatees of the proposed development project, if completed, were described by Ms. Thompson, the Club's witness: A typical project such as this one will introduce a good number of powerboats into the system, in this case, Tampa Bay. And manatees are impacted by powerboats either through propeller injuries or through collision with the hull of a fast-moving boat and the results are either death or in some cases sublethal injuries that may have other consequences such as inability to reproduce, et cetera. . . . [T]he very same boats can affect manatee habitat by prop scarring, boats going over sea grass beds and destroying the grasses. They also, in shallow water, kick up . . . turbidity which can affect light attenuation reaching the sea grass beds. And then there are the water quality issues which have secondary impacts to the sea grass beds . . . (Tr. 96). The Exemptions preliminarily afforded South Shore by the District will allow the removal of the plug in the canal system. Because removal of the plug will facilitate access to Tampa Bay by power boats harbored in the lagoon, it is the issue about the development of the Parcel that most concerns the Club in its efforts to protect manatees in Tampa Bay and elsewhere. Standing of Save the Manatee Club (i). The Manatee The manatee is the "Florida State marine mammal." Section 370.12(2)(b), Florida Statutes. Designated an endangered species under both federal and state law, 50 CFR s. 17.11 and Rule 39-27.003, Florida Administrative Code, the manatee is protected by the federal Endangered Species Act and by the federal Marine Mammal Protection Act. In Florida, the manatee enjoys, too, the protection of the Florida Endangered Species Act and the Florida Manatee Sanctuary Act. The State of Florida has been declared to be "a refuge and sanctuary for the manatee." Id. The Club's Purpose and Activities The Club's primary purpose is to protect the manatee and its habitat through public awareness, research support and advocacy. Long active in efforts to protect the manatee, the Club has achieved special status in manatee protection in Florida. In 1996, it was the recipient of a resolution by the Florida Legislature's House of Representative recognizing its endeavors on behalf of the manatee. The Club has been designated a member of the Manatee Technical Advisory Council provided by the Florida Manatee Sanctuary Act. See sub-sections (2)(p) and (4)(a) of section 370.12(2)(p) and (4)(a), Florida Statutes. The Department of Environmental Protection annually solicits recommendations from the Club regarding the use of Save the Manatee Trust Fund monies. In furtherance of its efforts, the Club has frequently participated before the Division of Administrative Hearings in administrative litigation involving manatees and manatee habitat on behalf of itself and its members. (iii). The Club's Membership The Club has approximately 40,000 members. The number of individual persons who are members of the Club, however, is far in excess of this number because many members are groups that receive membership at discounted fees. For example, a family may be one member or, as is quite common, an entire elementary school classroom may be one member. One-quarter of the Club's membership resides in Florida. Approximately 2,200 of the members are on the west coast of Florida with 439 in Hillsborough County, 584 in Pinellas and 165 in Manatee. The total number of members is therefore about 1,188 in the three counties whose shores are washed by Tampa Bay. (iv). Tampa Bay Tampa Bay is "prime essential manatee habitat." (Tr. 65). At least two factors make this so: the Bay's sea grass beds (manatee feeding areas) and warm water sources, particularly in winter, three of which are "power plant effluence." (Tr. 77). Not surprisingly, therefore, the Club has funded long- term research on the manatee in Tampa Bay. It has "provided about ten years of financial support for aerial surveys to count manatees in Tampa Bay and determine their distribution and the health of the sea grass beds . . ." (Tr. 75), a research project which finished last year. This research has contributed to other manatee research in the Bay leading the Club's witness at hearing to conclude, "[t]here's no other place in the state of Florida that has as long a term, as comprehensive a [manatee] database as Tampa Bay." (Tr. 76). Other activities in Tampa Bay conducted by the Club include the placement of manatee awareness signs. And the Club's staff biologist sits on the Tampa Bay Manatee Awareness Coalition established by the Tampa Bay National Estuary Program. In sum, the quality of manatee habitat in Tampa Bay is enough to make it especially important to the Club. But, its importance to the Club takes on added significance because it is the site of one of only three adoption programs the Club sponsors in Florida. The Tampa Bay Adoption Program The Tampa Bay Adopt-a-Manatee Program was established in April of 1999. The six manatees subject to the Tampa Bay Manatee Adoption Program (as of October 7, 1999) have been adopted by 1,229 members, 284 of which have been schools. (Petitioner's Exhibit 9). Those adopting receive a photo of the manatee, a biography, a scar pattern sheet, and a map showing their manatees' favorite habitat areas along the west coast of Florida. Of the six "Tampa Bay Adoption" program manatees, five have been seen in Tampa Bay and one south of Tampa Bay in the Marco Island area. Of the five seen in the bay, four "winter at the warm water discharge area of Tampa Electric Company's power plant" (Petitioner's Exhibit No. 5, Tr. 67) where they can be observed by members of the Club and the Tampa Bay adoption program as well as by the public. The TECO Power Plant The TECO power plant area is the major warm water refuge for manatees known to frequent Tampa Bay, particularly during the winter. The waters near the plant have been observed to be the host of more than 100 manatees at one time, following the movement of cold fronts through the area. The plant has a manatee-viewing center, one of the two principal places in the state for viewing manatees in the wild. The Club's membership handbook gives detailed information about how to see manatees at the TECO viewing center. During the winter months, the Club frequently directs its members to the TECO viewing center. Precisely how many individuals, either as members of the Club through a group membership or as members, themselves, actually have viewed manatees at the TECO viewing center or elsewhere in Tampa Bay was not established. Nor was any competent estimate made of how many might visit the TECO viewing center in the future. The viewing center and the power plant are in the vicinity of Apollo Beach/Bay Side, the development project South Shores seeks to have approved for an Environmental Resource Permit (the ERP). The SWFWMD ERP Program Chapter 373, Florida Statutes, governs water resources in the state and sets out the powers and duties of the water management districts, including their permitting powers. Part IV of the chapter covers the management and storage of surface waters. According to SWFWMD rules, "'Environmental Resource Permit' means a conceptual, individual, or general permit for a surface water management system issued pursuant to Part IV, Chapter 373, Florida Statutes." Rule 40D-4.021, Florida Administrative Code. The permit issued to South Shores in this case through the application of the challenged Exemptions, is a conceptual Environmental Resource Permit. See Petitioner's Exhibit no. 13 and Rule 40D-4.021(2), Florida Administrative Code. The conceptual permit preliminarily issued South Shores is one that was reviewed by the Club's staff, just as it reviews many permit applications for potential effects to manatees. Because of use of the Exemptions as proposed by the District to South Shores, however, any review the Club conducted to assure that the permit met all general permitting criteria was of no use. Much of those criteria were not applied by the District to the application. If the Exemptions were not available to South Shores, the District would have to employ ERP permitting criteria to the surface water management activities associated with the development project, including removal of the plug, lagoon construction, and boat lift installation. The Exemptions, therefore, keep the Club from participating in what otherwise would be the process for the District's administrative decision on the application of those criteria. In sum, the Exemptions preempt the Club's participation in the state mechanism provided by ERP permitting criteria for assessing, inter alia, threats to the manatee and its habitat from harms associated with the proposed development project. The District recognized this effect of the permit in the draft of the permit. The draft states: "Because of this Exemption, this Conceptual Permit will . . . not address . . . impacts to . . . wildlife habitat." (Petitioner's Exhibit no. 13). The Exemptions, therefore, prevent the Club from carrying out functions useful to protection of manatee habitat, that is, participation in the District's application of wildlife habitat protection criteria. The non-application by the District of permit criteria related to wildlife habitat protection and the Club's inability to assure itself that the criteria are correctly applied poses the danger that manatee habitat will be lost, diminished or damaged. If the Club is ultimately proved right in its assertion that the manatee and its habitat will be damaged by the South Shores development without application of permitting criteria related to wildlife habitat, then the approved application increases the threat that Club members will encounter greater difficulty in observing, studying and enjoying manatees in the wild and in Tampa Bay in particular. Standing of South Shores to Intervene The District has no opposition to South Shores' intervention. As for the Club's position with regard to South Shores intervention, the Club stipulated to South Shores' standing to intervene in a notice filed with its proposed order. South Shores benefits, moreover, from the application of the Exemptions to its proposed project. In light of not having to show compliance with permitting criteria otherwise applicable, South Shores will escape some permitting costs and therefore, enjoys economic benefit. Furthermore, by allowing South Shores to avoid the requirements of compliance with ERP permitting criteria, the Exemptions facilitate fulfillment of the obligation of South Shores to obtain a permit to develop. The District's Rule-making Authority The District governing board has been granted general authority by the Legislature to adopt rules to implement the provisions of Chapter 373, Florida Statutes, the Florida Water Resources Act of 1972: The governing board of the district is authorized to adopt rules . . . to implement the provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. The Legislature has framed this authority in relationship to the District's power to administer the Chapter and its Part IV: In administering the provisions of this chapter the governing board has authority to adopt rules . . . to implement provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. In another provision in Chapter 373, the district has been given rule-making authority that exceeds the authority to implement specific provisions granted typically to most administrative agencies in Florida. This authority is broad indeed. Tied to water use in general, it is bound only by unspecified conditions as warranted: . . . governing boards, . . . may: Adopt rules . . . affecting the use of water, as conditions warrant, . . . Section 373.171, Florida Statutes. The Exemptions; Specific Authority and Laws Implemented The Exemptions are as follows: 40D-4.051 Exemptions. The following activities are exempt from [ERP] permitting under this chapter: * * * (3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984. *(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984. * * * Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if: The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and The Developer has notified the District of its intention to rely upon this exemption prior to April 1, 1985. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984. As specific authority, the Rule containing the Exemptions references 373.044, 373.113, 373.149, 373.171, and 373.414(9), Florida Statutes. For "Law Implemented", the Rule lists Sections 373.406, 373.413 and 373.414(9), Florida Statutes. Section 373.414(9) is cited by the Rule both as specific authority and as one of the laws implemented. The first of the statutory provisions cited by the Rule as a law implemented is Section 373.406, Florida Statutes. It reads: 373.406 Exemptions.- The following exemptions shall apply: Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture, discharge, and use water for purposes permitted by law. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees. All rights and restrictions set forth in this section shall be enforced by the governing board or the Department of Environmental Protection or its successor agency, and nothing contained herein shall be construed to establish a basis for a cause of action for private litigants. The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact. The department or the governing board also may establish by rule exemptions or general permits that implement interagency agreements entered into pursuant to s. 373.046, s. 378.202, s. 378.205, or s. 378.402. Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by- case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption. Nothing in this part, or in any rule or order adopted under this part, may be construed to require a permit for mining activities for which an operator receives a life-of-the-mine permit under s. 378.901. Certified aquaculture activities which apply appropriate best management practices adopted pursuant to s. 597.004 are exempt from this part. For the most part, this section sets out general classes of exemptions. And it allows the District to consider whether an activity comes within an exemption on a "case-by-case" basis. See Section 373.406(6), Florida Statutes. But, none of these "exemptions" appear to have anything to do with the grandfather protections provided by the Exemptions at issue in this proceeding. See paragraphs 93-96, below. Section 373.413, Florida Statutes, in pertinent part, reads: (1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required. Other than to make reference in subsection (1)to the existence of exemptions under Part IV of Chapter 373: "Except for the exemptions set forth herein . . .", Section 373.413 does not deal at all with exemptions. Certainly, it does not make reference with any specificity to the subject matter of the Exemptions at issue in this proceeding. Cited both as "specific authority" and "law implemented" is paragraph (9) of Section 373.414, Florida Statutes. Unlike Sections 373.406 and 373.413, it has a connection to the Exemptions at issue in this proceeding as is seen from perusal of the underscored language, below: (9) The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provision of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(35). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively . . . (emphasis supplied.) History of the Exemptions The Exemptions have been adopted twice and amended several times. One of the amendments and the second adoption followed omnibus legislation in the environmental permitting arena: the amendment in the wake of the passage of the Warren S. Henderson Wetlands Protection Act of 1984, and the second adoption in the aftermath of the Florida Environmental Reorganization Act of 1993. (i). Amendment after the Henderson Act The Warren S. Henderson Wetlands Protection Act of 1984, (the "Henderson Act", later codified as Part VII of Chapter 403, Florida Statutes) was enacted through Chapter 84-79, Laws of Florida. Approved by the Governor on June 1, 1984 and filed in the Office of the Secretary of State on the same day, (see Laws of Florida, 1984, General Acts, Vol.1, Part One, p. 224) the Act had an effective date of October 1, 1984. The Henderson Act does not amend any provision in Part IV of Chapter 373, Florida Statutes, the part of the Water Resources Act which delineates water management district authority over the program for permitting related to the management and storage of surface waters ("MSSW"). Nonetheless, between the adoption of the Henderson Act and its effective date, the District amended and adopted rules in Chapters 40D-4 and 40D-40 of the Florida Administrative Code because of the Act's passage. Rule 40D-4.011 set out the policy for the amendments and adoptions: (2) The rules in this chapter implement the comprehensive surface water management permit system contemplated in part IV of Chapter 373, Florida Statutes. As a result of the passage of Chapter 84-79, Laws of Florida, the Warren G. Henderson Wetlands Protection Act of 1984, the District has adopted the rules in this Chapter and Chapter 40D-40 to ensure continued protection of the water resources of the District including wetlands and other natural resources. (Exhibit OR 4, See the page containing paragraph (2) of Rule 40D- 4.011 in the exhibit.) /1 Exhibit OR 4, a document officially recognized during this proceeding, is denominated "SWFWMD's Rule Amendment No. 116." The exhibit contains a letter on SWFWMD letterhead, signed by Dianne M. Lee for "J. Edward Curren, Attorney - Regulation" dated September 5, 1984. Under cover of the letter is a rule package filed by the District with the Secretary of State on September 11, 1984. Included in the package is the newly amended Rule 40D-4.051. The amended 40D-4.051 contains subparagraphs (3), (5) and (6), the Exemptions challenged in this proceeding. They are worded precisely as they remain worded today. Consistent with the policy expressed in Rule 40D-4.011, Florida Administrative Code as filed in September of 1984, the effective date of the amendment to the Rule containing the Exemptions was the effective date of the Henderson Act: October 1, 1984. The Exemptions contained in the amendment filed in September of 1984 are "grandfather provisions." The first two are designed to protect certain projects, work or activities from the requirements of the Henderson Act if they had governmental approvals on October 1, 1984. The third is designed to protect from the Act "phased or long term buildout project[s]" that meet certain requirements, among them receipt of governmental approvals by October 1, 1984. At the time of the 1984 amendments, the Rule cited to Sections 373.044, 373.113, 373.149 and 373.171 for "Specific Authority," that is, the statutory source for the district's authority to make rules. For "Law Implemented" the Rule cited to Section 373.406, Florida Statutes. At that time, Section 373.406 contained only four subsections. These four are worded substantially the same as the first four subsections of the section today. Although Section 373.406 was the only law implemented by the Rule in 1984, the section is neither mentioned in nor part of the Henderson Act. The section, itself, does not make mention of the Henderson Act or of protection from it based on government approvals obtained by October 1, 1984. Section 373.406, Florida Statutes, in its form both immediately before and after the Henderson Act provided exemptions that appear to have nothing to do with the Exemptions challenged in this proceeding. The only connection between Section 373.406, Florida Statutes, in 1984 and the Exemptions at issue in this proceeding when amended into the Rule in 1984 appears to be the use of the term "exemptions." The exemptions set out in the Section 373.406, Florida Statutes, as it existed in 1984, are not related to grandfather protection from the effects the Henderson Act had on the District's permitting considerations. Following the amendment to the Rule containing the Exemptions, the Rule was amended further. It was amended on October 1, 1986, March 1, 1988, and January 24, 1990. None of these amendments appear to have affected the Exemptions under consideration in this proceeding. The Rule became the subject of rule promulgation by the District again, however, as a result of a second omnibus act of the Legislature in the environmental permitting arena, the Florida Environmental Reorganization Act of 1993. (ii). The Reorganization Act of 1993 Nine years after the passage of the Henderson Act, the Legislature enacted the Florida Environmental Reorganization Act of 1993 (the "Reorganization Act"). Passed as Chapter 93-213, Laws of Florida, the Session Law declares its underlying policy: Declaration of Policy.-- The protection, preservation, and restoration of air, water, and other natural resources of this state are vital to the social and economic well-being and the quality of life of the citizens of this state and visitors to this state. It is the policy of the Legislature: To develop a consistent state policy for the protection and management of the environment and natural resources. To provide efficient governmental services to the public. To protect the functions of entire ecological systems through enhanced co- ordination of public land acquisition, regulatory, and planning programs. To maintain and enhance the powers, duties, and responsibilities of the environmental agencies of the state in the most efficient and effective manner. To streamline governmental services, providing for delivery of such services to the public in a timely, cost-efficient manner. Section 2., Ch. 93-213, Laws of Florida. The Reorganization Act carried out this policy in a number of ways. Among these, it merged the Departments of Environmental Regulation (DER) and Natural Resources into the Department of Environmental Protection. In so doing and at the same time, it incorporated DER's dredge and fill permitting program instituted by the Henderson Act into the programs of the water management districts for the Management and Storage of Surface Waters (MSSW). The permitting program that resulted from the consolidation of DER's dredge and fill permitting program with the District's MSSW permitting program is what has been referred to in this order as the Environmental Resource Permitting or ERP program. With regard to rules under the new ERP program, the Reorganization Act amended Section 373.414, Florida Statutes. Two sentences in subsection (9) of the amended section bear repeating: The department and the governing boards [of the water management districts], on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. * * * Such rules may establish exemptions . . . if such exemptions . . . do not allow significant adverse impacts to occur individually or cumulatively. . . . As discussed earlier in this order, the Henderson Act did not directly create exemptions in the District's MSSW permitting program. Nonetheless, the District through the Exemptions of Rule 40D-4.051, Florida Administrative Code, provided "grandfather" protections in the wake of the Act effective October 1, 1984. Whereas grandfather concerns were raised in front of the District after the Henderson Act, grandfather concerns and concerns about other situation that should be entitled to exemptions were raised to the Legislature during the advent of the Reorganization Act. These concerns were addressed in the Florida Environmental Reorganization Act, itself. The Act provided specific exemptions that were self- executing. Included were ones providing grandfather protection for certain activities approved under Chapter 403, Florida Statutes, (DER's dredge and fill program) from imposition of new ERP permitting criteria expected to be promulgated in the wake of the Reorganization Act. The are contained in subsections (11) through (16) of Section 373.414, Florida Statutes. None of these exemptions make reference to the Exemptions at issue in this case. Of these provisions, only one addresses activities subject to rules adopted pursuant to Part IV of Chapter 373 prior to the anticipated ERP permitting criteria: An application under this part for dredging and filling or other activity, which is submitted and complete prior to the effective date of [the anticipated ERP rules] shall be reviewed under the rules adopted pursuant to this part [including the Exemptions in Rule 40D-4.051] and part VIII of chapter 403 in existence prior to the effective date of the [anticipated ERP rules] and shall be acted upon by the agency which received the application, unless the applicant elects to have such activities reviewed under the [anticipated ERP rules]. Chapter 93-213, Section 30, p. 2149 of Laws of Florida, 1993, General Acts, Vol. 1, Part Two, now Section 373.414(14), Florida Statutes. 2/ Rule Activity in 1995 In observance of the mandate in the first section of Section 373.414(9), Florida Statutes, the District undertook adoption of rules "to incorporate the provisions of [Section 373.414] . . . into the rules governing the management and storage of surface waters." These rules were the ERP rules anticipated by the Reorganization Act. They included the rules necessary for the District to administer under its ERP program its newfound authority over much of the dredge and fill permitting program formerly administered by DER and now consolidated with its permitting authority in its MSSW rules. Among the rules passed under the authority of the Reorganization Act's Section 373.414(9) is Rule 40D-4.051, the Rule containing the Exemptions subject to this proceeding. Filed with the Secretary of State on September 13, 1995, the adoption package for the new readopted states the following, in pertinent part: 40D-4.051 Exemptions The following activities are exempt from permitting under this chapter [Individual ERPs]: (1) - (7) - No change. (Exhibit OR 6, p. 14). The result of this adoption is that the Exemptions became part of the District's ERP Rules. They now apply to both the MSSW authority under Part IV, Chapter 373, Florida Statutes, which existed prior to the Reorganization Act, and, in a consolidated fashion, the District's authority conferred by the Reorganization Act to regulate certain dredge and fill activity formerly regulated by DER.
Findings Of Fact Application No. 76-00360 is for a new consumptive water use involving one well. The application seeks withdrawal of 1.29 million gallons per day average daily withdrawal and 2.59 million gallons per day maximum daily withdrawal. The water will be withdrawn from the Floridan Aquifer for the irrigation of tomatoes. The amount of water sought to be consumptively used will exceed the water crop as defined, by the district because approximately 25 percent of the water will be discharged off site. The land which is the subject of this application is being leased by the applicant for the purpose of growing tomatoes. Applicant's lease terminates in September, 1978 with an option to renew. Except as otherwise set forth above, the applied for consumptive use will not violate any of the conditions set forth in Subsections 16J-2.11(2), (3) or (4), F.A.C. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: The applicant reduce runoff to 4.6 percent of the amount pumped by January 1, 1978. The district be allowed to install flowmeters and be allowed to go on the property to read these meters. The permit shall terminate on September 30, 1978, unless permitee seeks an extension. That the applicant give written notice of his intention to renew the lease if he so intends.
Recommendation It is hereby RECOMMENDED that Application No. 76-00360 be granted subject to the conditions set forth in paragraph 5 above. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Ralph Williford Staff Attorney Glisson and Williford Farms, Inc. Southwest Florida Water Post Office Box 911 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue is whether the Southwest Florida Water Management District's (District's) proposed construction of a temporary floating weed barrier across the mouth of the canal exiting to the southwest side of Lake Hancock in Polk County, Florida, is exempt from regulatory review under Section 373.406(6), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This proceeding involves a request by the District for authorization to construct a temporary floating weed barrier across the mouth of the canal exiting the southwest side of the Lake in Polk County, Florida (County). After reviewing the request, and based on its determination that the project would "have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the State," on September 27, 2002, the Department concluded that the project qualified for an exemption from regulatory review under Section 373.406(6), Florida Statutes. The Department also authorized the District to use state-owned submerged lands, if applicable, for the construction of the project, and it found that the project was in compliance with the SPGP program and thus required no further permitting from the United States Army Corps of Engineers (Corps of Engineers). Even if the Department had not considered the project to be exempt, it concluded that it had sufficient information and assurances from the District to grant a Noticed General Environmental Resource Permit (ERP) authorizing the requested activity. On December 2, 2002, Petitioner, Bruce Lahey, who has resided and owned property on the southwest side of the Lake for 15 years and regularly uses the Lake for fishing and recreational purposes, filed a Petition for Administrative Hearing (Petition) challenging the proposed agency action. In his Petition, as later clarified and narrowed in the parties' Joint Pre-Hearing Stipulation, Mr. Lahey contends that a weed barrier is no longer necessary since there has not been a weed problem in the Lake since late 2002; that the placement of a weed barrier will make access to and from the Lake more difficult and create a safety hazard; and that in the event a problem arises again, the more desirable options for removing the weeds are "a 'cookie-cutter,' mechanical harvester, or the spraying of [the] tussocks," rather than erecting a barrier. Finally, Mr. Lahey contends that as a matter of law, Section 369.20, Florida Statutes, bars the construction of a barrier. He has not challenged the Department's authorization for the District to use state-owned submerged lands or its determination that the project complies with the SPGP program, and therefore those aspects of the proposed agency action are not in issue. Respondents do not dispute that Mr. Lahey has standing to bring this action. The Lake and Control Structure The Lake is an approximately 4,500-acre Class III waterbody located east of Highway 98 and Highland City, southeast of Lakeland, and just northeast of the City of Bartow (Bartow). It receives drainage from a significant portion of the County, including three streams and runoff from a surrounding 131-square mile watershed. Waters discharge from the Lake to Saddle Creek (the canal), which exits at the southwest end of the Lake and runs in a southerly direction for around a mile and a half until it merges with the Peace Creek, where the two then become the Peace River. At the confluence of the canal and Peace Creek, the waters flow through a broad, flat floodplain. Water moves slowly through this area, which can affect the ability of the Lake to discharge, especially during flood conditions. Like the Lake and canal, the Peace Creek also has a significant contributing basin. The canal contains a District-owned and operated water control structure known as Water Control Structure P-11 (the control structure) consisting of two twenty-foot radial arm gates that are raised when necessary to manage the water levels on the Lake and prevent the flooding of lakefront property. The control structure is approximately 3,000 feet or so south of the Lake and is the only control structure regulating water levels for the Lake. The gates are designed to discharge at a flow level of 1,100 cubic feet per second (cfs). The invert elevation of the control structure is 91.7 feet and the crest elevation is 98.7 feet. Flows from the Lake will exceed 1,100 cfs when the water levels are higher than the crest elevation of the structure. At this point, water flows over the structure’s weirs and flood control is no longer provided. The maximum desirable water elevation level for the Lake is 98.5 feet above mean sea level (msl). Typically, the District begins to operate, or open, the control structure when the Lake's water elevation reaches 98.25 feet msl. A water level of 99.0 feet msl is considered minimum flood level (or high guidance level). The low management water elevation (low guidance level) is 96.0 feet msl. These established water levels have been maintained at the Lake since approximately 1981. The District seeks to hold the water level of the Lake close to the maximum desirable level, and typically tries to hold the water level at 98.25 feet msl, which is slightly below the maximum desirable level of 98.5 feet msl, to allow storage of water and some response time. The control structure is intended primarily to be a water conservation structure that regulates the Lake's water levels to benefit the water resources, to include the Lake and the Peace River. In managing the Lake's levels, the District balances conservation of the water resource and public safety/flooding concerns. The Lake's water level elevations are monitored through the District’s Supervisory Control and Data Acquisition System (SCADA), which measures the water level and transmits hourly data to the District offices via satellite. SCADA monitors are located immediately upstream and downstream of the control structure. Since the tussock blockage events in the summer and fall of 2002, described more fully below, the District has installed an additional SCADA monitor on the north end of the Lake so that water levels in the Lake and canal can be compared. The Lake does not have direct public access or a public boat ramp and is not easily accessible. In addition, in the canal, there is only one unimproved location upstream from the control structure where boats can be placed in the water and gain access to the Lake. That portion of the canal which lies between the Lake and the control structure has not always been open to boat access. In the 1980’s, a floating weed barrier extended across the canal approximately 1,000 feet upstream from the current control structure, which blocked the canal and boat access. This floating weed barrier was installed primarily to address problems with water hyacinths that would float down the canal and interfere with the control structure. This floating barrier gave way sometime in the 1990’s. An earlier control structure also used to exist in this area, which blocked canal access. Navigation of the canal is limited due to the existence of the control structure and a number of other blockages further downstream, including a low bridge where old Highway 17 crosses the canal. Thus, boats coming from the Lake cannot navigate down the canal any further than the control structure, or slightly more than one-half mile, without taking the boat out of the water. Between 1999 and 2001, the District experienced one of the most severe droughts on record. During this time, the Lake went dry except for some isolated pools of water. Because of these conditions, a significant amount of wetland or aquatic vegetation began to grow on the exposed bottom of the Lake. The Lake historically did not support much plant growth, due to its eutrophic condition, poor water quality, and gelatinous mucky lake bottom. The types of vegetation currently existing in the Lake include cattails, pickerelweed, duck potato, and primrose willow. Following the return of summer rains and El Nino conditions in 2002, the Lake rebounded to within normal water levels. Because of the return of water in the Lake, the buoyant pressure of the water combined with the flaccid nature of the mucky lake bottom caused significant portions of vegetation to become uprooted, which formed an extensive amount of tussocks. Tussocks are floating mats of uprooted aquatic vegetation. They contain plant and organic material accumulated around the plant roots, can range from a few feet across to one hundred feet across or larger, and can reach a height of more than four feet. Once tussocks form, they move about the Lake by wind and water currents. The amount of vegetation currently existing in the Lake exceeds historic levels. At the present time, the District estimates that approximately 2,000 acres of the Lake are covered with tussocks, and that due to the flaccid nature of the lake bottom, the tussocks are susceptible to becoming uprooted through fluctuating water levels, wind, and wave action. Therefore, there is a strong potential that much of the currently rooted vegetation will form tussocks. Tussocks first impacted the District’s ability to operate the control structure in July 2002. During this event, the canal became partially filled with tussocks. Because the blockage occurred during the rainy and hurricane seasons, the District undertook efforts to clear the canal of tussocks. District staff used mechanical equipment commonly called a cookie cutter to break up the tussocks and flush them downstream through the control structure. During this tussock event, the Lake's water levels rose briefly above the maximum desirable level of 98.5 feet msl and then fell back to within normal elevations. In late August 2002, approximately three weeks after the first tussock blockage event, a number of homeowners on the Lake, including Petitioner's wife, contacted District staff to advise that the water level of the Lake was rising and flooding their yards. A rise in water levels did not register on the District’s water level monitoring SCADA system. Visual observation of the Lake did reveal, however, that there was a significant difference between the water levels being experienced on the Lake and the water levels reported at the control structure via the SCADA system. During this tussock event, masses of tussocks had completely filled the 3,000-foot length of the canal all the way to the control structure and were jamming against the control structure gates. Tussocks had also formed a vegetation dam approximately 900 to 1,400 feet north of the control structure where they compacted and became lodged on the bottom of the canal, significantly impeding the flow of water. During this event, flows out of the Lake were significantly diminished to a fraction of what they should have been. The tussock dam caused the Lake's level to rise above the minimum flood elevation of 99.0 feet and flood Petitioner's yard. There was an approximately one to one and one-half foot difference in the water levels in the Lake and in the canal. In response to this disparity, the District installed a third water level elevation monitor at the northern end of the Lake, so that it can monitor any differences in water elevations between the Lake and the canal and be alerted in the event that a blockage occurs in the canal. To eliminate the tussock blockage and restore flow through the control structure, the District had to employ mechanical means to break up and remove the tussocks. At the control structure, a trac-hoe was initially used in an attempt to force tussocks through the control structure, as tussocks would not flow through the structure unassisted. A cookie cutter was also employed, but it became sucked into the control structure and was damaged and had to be removed with a crane and repaired. The cookie cutter proved ineffectual in addressing the tussock blockage problem. If the canal were to again become clogged with tussocks, any resulting blockage of flow from the Lake would cause water levels to rise, which would endanger public safety and welfare. Prior to the tussock blockages experienced in the summer and fall of 2002, problems with tussocks had never been experienced at the Lake. The magnitude of the tussock formation on the Lake is unique and has not been experienced elsewhere in the District. In 2002, the Department expended over $46,000.00 in contracting for mechanical equipment and for spraying herbicide on tussocks to respond to the tussock buildup on the Lake. Since their formation after the summer of 2002, tussocks have blocked Petitioner's access to his dock on several occasions, thereby preventing him from being able to take his boat out into the Lake or to return to the dock once out on the Lake. The potential for similar blockages to occur remains, regardless of whether a floating weed barrier is erected as proposed. The direction of the winds is a major factor in determining where and how many tussocks will stack up in front of anyone’s property along the Lake. Access to the canal could become blocked with tussocks at any time, depending upon how the wind blows. Breaking up tussock blockages and flushing tussocks through the control structure does not eliminate water resource problems for the District. Tussocks that are pushed through the control structure cause downstream problems requiring the District to expend resources to push the tussocks through and under low downstream bridges crossing the canal, as well as break up tussock blockages that form in downstream waters. In January 2003, tussocks again accumulated at the control structure in such volume as to require assistance in flushing through the control structure. As a result of the large volume of tussocks pushed through the control structure, a tussock blockage occurred at a downstream bridge crossing, for which the District had to use mechanical equipment to restore flow. During March 2003, tussocks flushed through the control structure created a jam downstream on the Peace River. The tussocks were jammed up in a bend in the river and were blocking navigational access to the river. An El Nino weather cycle is currently being experienced. Water levels, including the Lake's water level, are already at their maximum and the ground is saturated. Localized flooding events have occurred. A very active summer rainy season is anticipated, which will mean significant flood control operations for the District. As the summer season approaches, the District must keep the control structure open and operational, which requires that the canal be kept open and flowing. A floating weed barrier at the entrance to the canal would keep tussocks from clogging the canal and prevent problems affecting operation of the control structure, downstream tussock blockages, and possible flooding. The Project To address the problem of tussocks entering the canal and causing blockages or possible flooding, on September 11, 2002, the District applied to the Department for a Noticed General ERP under Rule 62-341.475(1)(a), Florida Administrative Code, to authorize the construction of a floating weed barrier at the entrance to the canal. On September 27, 2002, the Department issued its notice of intent to authorize the requested activity. The proposed barrier will be constructed in two sections arranged at approximately 90-degree angles to each other, with a twenty-foot opening between the sections to allow boat access to the canal. A schematic drawing of the barriers is found in District Exhibit 5 received in evidence. As originally proposed, the barrier would consist of a total of sixteen nine-inch diameter pilings driven twenty-one feet apart, with twenty-foot sections of floating foam-filled polyvinyl chloride pipe (pvc) connected to the pilings. Pilings will be marked with reflective tape and five of the pilings will have three-foot diamond-shaped reflective danger signs reading "DANGER PILE/FLOAT BARRIER" placed on their upstream and downstream sides. The pilings are twenty-five feet in length and will extend above the Lake's water level approximately twelve to fourteen feet. Since the District's submittal of the application and the Department's authorization notice, the District has located commercially manufactured floating booms, called "Tuffbooms," that, if authorized, will be installed in lieu of the foam-filled pvc pipes. Use of these booms reduces the number of pilings needed from sixteen to eight, and their bright orange color is more visible than pvc piping. All other aspects of the proposed activity remain the same. The change in material to be used in the construction of the proposed floating barrier does not present any water quality issues, nor does it affect the Department's determination that the proposed activity will have minimal or insignificant adverse impacts on the water resources. The staggered layout of the proposed floating weed barrier is intended to keep tussocks in the Lake, where they can remain subject to the winds, while providing boat access to the canal in such a manner that is more difficult for tussocks to enter the canal. The Department's Exemption Process The Department's Tampa District Office routinely approves around 800 projects each year under various exemptions authorized by statute or rule. One type of exemption is found in Section 373.406(6), Florida Statutes, referred to as the de minimus exemption, which allows the Department to exempt from regulation those activities that are determined will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. The Department is authorized to make this determination on a case-by-case basis. In determining whether an activity qualifies for a de minimus exemption from permitting, the Department looks for parallels to other specific statutory or rule exemptions and analyzes the proposed activity similarly in terms of its scope, construction methods, potential to create water quality impacts or impediments to navigation, and other factors, because these recognized exemptions are also deemed to have minimal or insignificant impacts to the water resources. There is no specific exemption for a floating weed barrier as proposed by the District, but the Department considers this type of project to be similar in scope and potential impacts to other specific activities that have been determined to have minimal or insignificant adverse impacts to the water resources, such as docks and other piling-supported structures, navigational aids, and buoy systems. In assessing whether a project is appropriate for the de minimus exemption, the Department also looks to the criteria for Noticed General ERPs for guidance in determining whether a proposed project will have minimal or insignificant adverse individual or cumulative impacts upon the water resources. Under Section 373.406(5), Florida Statutes, the Department may by rule establish general permits for activities that have, either singularly or cumulatively, minimal environmental impact. Chapter 62-341, Florida Administrative Code, sets forth the Noticed General ERPs established by the Department. Department Rule 62-341.475(1)(a), Florida Administrative Code (as does District Rule 40D-400.475(1)(a), Florida Administrative Code), allows noticed general permits for piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters. To qualify for a noticed general permit for such activity, an applicant must provide reasonable assurance that the proposed structure: Does not significantly impede navigation and does not entail the construction of a structure for the launching or mooring of a boat when navigational access to the structure does not currently exist; Does not cause a violation of state water quality standards; Does not impede the conveyance of a stream, river or other watercourse in a manner that would increase off-site flooding; Does not adversely impact aquatic or wetland dependent listed species; Does not cause the drainage of wetlands; and Is not located in, on or over a coral community, macro-marine algae or submerged grassbed community. Will the Project Impact Water Resources? The District’s proposed floating weed barrier will involve less than 7.1 square feet of impact to the water resources, which is significantly less impact in square footage to the water resources than is allowed by Rule 62- 341.475(1)(a), Florida Administrative Code, or occurs with other specified exempt projects. Best management practices will be used in the erection of the pilings and in the construction of the barriers. Pilings will be jetted into the lake bottom without need for any dredging or lake bottom removal. Installation of a floating weed barrier will not result in any significant detriment to existing conditions in the Lake or the canal. Installation of the proposed floating weed barrier will benefit the public interest and the water resources by allowing unimpeded operation of the control structure without risk of tussocks causing blockages and flooding. Installation of the proposed floating weed barrier will not have significant adverse impacts on fishing, boating, or recreational use of the Lake or canal. A blockage of the canal entrance by tussocks, or a tussock jam anywhere on the Lake, could occur under present conditions, and similar blockages have already occurred. The potential for tussocks to block the opening between the sections of the floating weed barrier is considered remote and of temporary duration, due to the potential for shifting winds. The District’s proposed floating weed barrier is a reasonable means of addressing the continuing potential for tussocks to interfere with operation of the control structure. Use of mechanical equipment such as a cookie cutter or harvester would not be an effective or economical means of addressing tussock blockages in the canal or preventing their occurrence and possible interference with operation of the control structure. Pushing tussocks through the control structure would not be an effective means of addressing the potential for tussocks to cause blockages and possible flooding. Merely pushing the material through the control structure moves the potential blockage problem downstream and does not alleviate the potential for tussocks to cause adverse impacts to the water resources of the District. Spraying tussocks with herbicides would not be an effective means of addressing tussock blockages due to the fact that, once treated, tussocks can take weeks to die and fall to the lake bottom. Floating tussocks are and will continue to be treated with herbicide sprays when found in the Lake to reduce the amount of tussocks. However, once tussocks enter the canal, spraying serves little benefit in preventing tussocks from causing blockages or other problems. Tussocks originate in the Lake and not in the canal. Tussocks in the Lake have had and likely will continue to have an impact on boating and recreational use of the Lake and canal, as evidenced by tussock blockages to Petitioner's dock. By confining the tussocks to the Lake, the potential for tussocks to impact boating and recreational use of the Lake will remain the same as current conditions, but the potential for tussocks to affect operation of the control structure and contribute to Lake flooding will be eliminated. Petitioner contends that the proposed floating weed barrier will impede navigation, either by itself or as a result of tussocks piling up in front of the barrier. The proposed barrier will be marked and visible through reflective tape and signage. The barrier does not create a navigational hazard and is not a significant impediment to access to the canal. Constructed in two sections, the barrier provides an opening that allows boat access to the canal. As noted above, the likelihood of tussocks piling up at the barrier and blocking the opening between the barrier sections is considered remote and temporary. Based upon the information provided by the District, the proposed floating weed barrier will not significantly impede navigation; will not cause a violation of state water quality standards; will not impede the conveyance of a stream, river, or other water course in a manner that would increase off-site flooding; will not adversely impact aquatic or wetland dependent listed species; and will not cause the drainage of wetlands. There is no evidence that the proposed activity is located in, on, or over a coral community, macro-marine algae, or submerged grassbed community or that it entails the construction of a structure for the launching or mooring of a boat for which navigational access does not currently exist. The proposed activity would have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. As an activity that has minimal or insignificant adverse impacts on the water resources of the District, either individually or cumulatively, the District’s project qualifies for an exemption pursuant to Section 373.406(6), Florida Statutes, as well as a Noticed General ERP under Rule 62- 341.475(1)(a), Florida Administrative Code. The Department's exemption determination authorized the District’s floating weed barrier for one year, presumably so that the effectiveness of the barriers can be evaluated during that period of time. If they are effective, an extension or renewal of the authorization will be sought. If the tussocks problem becomes less acute, or the barriers do not achieve the desired purpose, they will be taken down. In contrast, Noticed General ERPs authorize a particular activity for five years. Other Contentions by Petitioner Petitioner has also contended that the proposed activity may violate a condition of the District's Corps of Engineers general permit by interfering with general navigation. As found earlier, however, the more credible evidence indicates otherwise. Moreover, it is presumed that this issue was considered by the Corps of Engineers prior to its approval of the project. In any event, that matter should be raised with the Corps of Engineers, and not with the Department. Finally, Mr. Lahey contends that since at least late 2002, the Lake has been free of a tussocks problem and therefore barriers are no longer needed. As noted above, however, blockages have occurred at the control structure and in the Peace River as recently as January and March 2003, and such blockages were the direct result of tussocks which originated in the Lake. Given the likelihood of a very active summer rainy season, it is essential that the canal be kept open so that the District can properly manage and control the water resources.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order determining that the Southwest Florida Water Management District's proposed project qualifies for an exemption under Section 373.406(6), Florida Statutes; that authorization to use state-owned lands be given; and that the project is in compliance with the State Programmatic General Permit program. DONE AND ENTERED this _____ day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 _____ day of May, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bruce Lahey 5280 Waterwood Drive Bartow, Florida 33830-9766 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
