Findings Of Fact S. A. Williams Corporation (Williams) is a Florida corporation which has its principal place of business in Florida, has a net worth of less than two million dollars, has fewer than 25 employees, and was the prevailing party in the initial proceedings. Williams has operated a construction and demolition landfill in Hernando County since prior to the adoption of zoning ordinances by the county, and its use of the land for this purpose was grandfathered. Subsequently, William sought to comply with certain conditions established by the County for expanding the landfill site. These improvements necessitated construction of a basin to retain surface water. On April 6, 1993, William applied for a surface water drainage permit from the Southwest Water Management District. On June 16, 1993, the District gave notice of its intent to issue the surface water drainage permit to Williams. On May 26, 1993, while Williams' application was pending with the Water Management District, the County revoked the zoning of Williams to operate a construction and demolition landfill site. Williams sought and obtained an injunction against the County to prevent it from revoking its zoning, and the County appealed the Circuit Court's order enjoining the revocation of the zoning. The Hernando County Commission was advised by their attorney on May 10, 1993, that the County might desire to challenge the issuance of permits by the Water Management District or the Department of Environmental Regulation to Williams to prevent Williams from proceeding with its operation during the appeal of the injunction. At a meeting on June 24, 1993, before the County challenged issuance of the permit, the Water Management District staff advised the County Attorney and a member of the County Commission, who were attending the presentation in their official capacity, that there would be no adverse drainage impacts to any property owned by the County, its rights-of-way, or any property of any citizen of the county because the drainage would be retained on Williams' property by a close basin system large enough to retain surface water drainage on the property during a 100 year storm. Subsequent to this meeting and prior to filing its petition challenging issuance of the permit, the County did not bring to the attention of the Water Management District any concerns to be resolved between the District, Williams, and the County over adverse drainage impacts to County property or rights-of-way. 7 On June 30, 1993, Hernando County filed a petition in the original proceeding challenging the issuance by Southwest Water Management District to Williams of a surface water drainage permit. That petition alleged two grounds for standing: (1) that the County was substantially affected because of adverse impacts to county property and the rights-of-way to county roads, and (2) that the County had standing to challenge the issuance of the permit under its general police powers. The County Engineer was not asked by the County Attorney to review the drainage impacts of the surface water drainage permit prior to filing the challenge, and did not review the District's file until after his first deposition on October 22, 1993. After reviewing the information, to include a new survey of the berm contours, furnished to the Water Management District by Williams, the County Engineer determined that there were no adverse drainage impacts off site. The County Engineer's opinion that there were no adverse impacts to County property was known by the County Attorney prior to the formal hearing in Case Number 93-4212 on November 16, 1993. At the formal hearing on November 16, 1993, in Case Number 93-4212, Williams moved to dismiss the petition filed by Hernando County for lack of standing on the basis that the County was not substantially effected by the Water Management District's decision to issue a surface water drainage permit to Williams. The County receded from its allegation of damage to County property and rights-of-way at the commencement of the hearing, but asserted standing on the basis of its general police powers. The County specifically denied at the formal hearing acting in a representative capacity in the manner of an association in behalf of the county's citizens. After hearing the argument of counsel and being fully advised in the premises, the undersigned hearing officer recommended that the County's petition be dismissed. At the conclusion of the hearing, Williams moved for the award of attorney's fees and expenses from the County after argument on the motion to dismiss the County's petition. Thereafter, Williams filed a written motion for the award of attorney fees and expenses. The Hearing Officer retained jurisdiction to consider the Motion for Attorney Fees and Expenses when the recommended order was entered. The Water Management District adopted the Recommended Order in its Final Order dated December 20, 1993, and the County appealed the District's Final Order which was affirmed per curiam without opinion in Hernando County v. Southwest Florida Water Management District, 647 So. 2d 124, (Fla. 5th DCA 1994). The instant case was established to consider William's motion which is treated as a collateral fact finding proceeding. The style of the original case was retained to prevent confusion. An evidentiary hearing on the motion for attorney's fees was held on May 10, 1995 which revealed the following facts. During the work-up period prior to notice of intent to issue the permit, the county's engineer and environmental specialist did not raise issues regarding drainage, contours, wetlands, and wildlife. (Tx-220). Although the County Attorney and one of its commissioners had been advised by the District that there would be no impact to County property or rights-of-way, the County Engineer was not asked to investigate whether the drainage from the proposed project would remain on the site as stated in the application and as concluded by the staff of the Water Management District prior to the County challenging the issuance of the permit. (Tx-198,199) The County Engineer looked at the Water Management District's file on the issuance of the permit only after the County had filed its challenge. (Tx-209). The County Engineer had expressed concerns to the District staff about suspected changes in the topography on the site. (Tx-208). When the Water Management District was made aware of the County engineer's concerns, a new survey was conducted which resolved the County engineer's concerns about changes in topography on the site, and revealed that the tops of the berms were as high or higher than represented in the application. The results of this new survey was shared with County Engineer prior to the original hearing. (Tx-208,211-219). The County's environmental specialist did not review the complete file on the Williams' permit application until within two weeks of the original formal hearing, well after the challenge was filed. (Tx-161). The environmental specialist had no basis to question the validity of the number of acres of wetlands stated in the second permit. (Tx-176). The environmental specialist did not have any personal knowledge regarding the flora or fauna on the site because she had never been on the site, and her information was based solely on material provided to her by individuals living in the vicinity of the site. (Tx-176,180-181). She did not have authority to enter on the site because the County had no enforcement authority over endangered species. When the county's concerns about endangered species on the site were voiced, an on site inspection was conducted by the District. The District staff found no endangered species, or evidence of endangered species, or persons who had seen them on the site. The District staff's findings were shared with the County prior to the original hearing. (Tx-220.) Williams incurred attorney fees and expenses responding to the challenge of the County to issuance of the surface water drainage permit. The expenses incurred by Williams were primarily in response to the County's allegations of adverse impacts to County property. However, it is impossible to reasonably separate the expenses incurred by Williams responding to the allegations of off-site impacts from those related to standing based upon general police power. The County's assertion of general regulatory authority was primarily a legal argument which was addressed by the District's staff. Williams sought no fees for the appeal which was litigated principally by the District and County. By agreement of the parties the evidence on the amount of attorney fees and rate were submitted by affidavit without agreement regarding the facts asserted in the affidavits. The rate charged by counsel for Williams of $195/hour was a reasonable rate for the type of service provided in the geographic area in which it was provided considering the skill and experience of counsel. The number of hours billed through preparation of the post hearing briefs in the original formal hearing in this case, 160.25 hours, was not excessive given the number of depositions taken, the motions hearings which were held, and the legal and factual issues raised. The Williams' affidavits of attorney's fees and expenses are as follows: Attorney fees thru original hearing: $31,248.75 Estimate of costs related to preparation and service of Motion for Attorneys Fees and Expenses: $ 1,560.00 Teleconference charges on motion to compel: $ 127.73 Outside copying expense: $ 8.73 Expert Witness fee: $ 1,277.90 Court Reporter fees for depositions & transcripts: $ 1,692.45 Expert fees on Motion for Attorney Fee and expenses: $ 788.00 24. The attorney's fees, expert witness fees, and costs incurred by Williams in the hearing on attorney fees May 10, 1995 of $3,894.81 are reasonable. Williams incurred an expense of $1,019.00 for publication of the transcript in the almost seven hour hearing.
Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.
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
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, by Application No. 7500025, applied for a consumptive-use permit for an average daily withdrawal of 138,000 gallons of water from one (1) well penetrating the Florida Acquifer. This is an existing use. Exhibits were entered without objection, as follows: Original application with attachments, marked "Exhibit 1". Proof of Publication, marked "Exhibit 2". There were no written objections. The witness for permittee, George Szell, Hydrologist, was questioned at length by the staff attorney on issues to be resolved under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated thereunder by the Southwest Florida Water Management District, and particularly Rule 16J-2.11, Conditions for a Consumptive-Use Permit. A typed transcript of the testimony has been examined and made a part of the record for this hearing. The witness for the Board, Mr. Szell, objected to the granting of the permit on the grounds that the water crop was exceeded by 3.24 percent. Upon request of the Hearing Officer, the parties agreed to consider their differences and file a joint stipulation enumerating conditions upon which the parties agree. A joint stipulation signed by both parties was filed with the Division is marked "Supplement to the Record" and made a part of this recommended order. Mr. Szell recommended that the permit be granted consistent with the conditions in six (6) above.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance 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, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . 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"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
Findings Of Fact The Parties. Respondent, Citrus Recreational Marina, Inc. (hereinafter referred to as "Marina"), is a corporation. Marina is the applicant for the permit which is at issue in this proceeding. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with the responsibility for, among other things, wetland resource permitting. The Department also has responsibility, pursuant to an agreement with the Southwest Florida Water Management District (hereinafter referred to as the "Water Management District"), for Management and Storage of Surface Water permitting within the jurisdictional boundaries of the Water Management District. Petitioner, Save the Manatee Club, Inc. (hereinafter referred to as "Save the Manatee"), is a non-profit, Florida corporation. The stated purpose of Save the Manatee includes protection of the manatee and its habitat through the promotion of public awareness, research and lobbying efforts. Petitioner, Friends of the Greenway (hereinafter referred to as "Friends"), is an organization which promotes responsible environmental policy in Citrus County. Save the Manatee and Friends are "citizens" of the State of Florida. They filed a verified petition for hearing in this matter. They alleged in the petition that the proposed facility will injure, harm, or otherwise pollute the state's natural resources. Members of Petitioners observe, study and enjoy manatee in Citrus County, including waters that would be impacted by the proposed facility. Marina's Permit Applications, the Department's Notice of Intent to Issue and the Petitioners' Challenge. On March 28, 1995, Marina applied to the Department for a permit for Management and Storage of Surface Water. On March 10, 1993, Marina applied to the Department for a wetland resources (dredge and fill) permit. The permits sought by Marina are associated with Marina's plan to construct a marina facility. The marina is to be constructed within an existing dolomite mine pit (hereinafter referred to as the "Mine Pit"). On or about February 6, 1996, the Department entered a notice of intent to issue the permit sought by Marina. A copy of the draft permit, permit number 092278259 and MS092681199, was attached to the notice of intent to issue. On or about March 13, 1996, Petitioners filed a Petition for Formal Administrative Hearing challenging the Department's proposed decision to issue the draft permit. Marina's Proposed Facility. Marina's proposed facility is to be located in Citrus County, Florida. Citrus County is located on the west coast of Florida, north of Tampa, Florida, and south of the mouth of the Suwannee River on the Gulf of Mexico. As part of the proposed facility, Marina proposed to construct 256 wet slips (122 of which may be covered) on six floating docks, a boat ramp, a boat lift bay, a 63-boat dry storage facility, a convenience store with fueling and sewage pump-out facilities, a clubhouse, a stormwater facility and a parking area. The proposed facilities will also include a potable water system. The water system will provide drinking water to the clubhouse, bait stand, fueling facility, boat storage area and the marina docks. The proposed facilities will also include an on-site wastewater treatment facility. The treatment facility will consists of an aerobic system with on-site effluent disposal through drainfield lines into the soil. No sewage treatment percolation ponds will be included on the proposed site. The stormwater system for the proposed site will be separate from the wastewater treatment facility. The stormwater system will include the collection and treatment of stormwater in on-site basins prior to discharge into the Mine Pit. The system will be designed to retain the entire rainfall from a 100-year storm combined with wet detention and on-line systems involving percolation. All these systems have been designed to meet the design standards required by Chapter 40D-4, Florida Administrative Code. The post development runoff discharge rate for the proposed site is projected to be less than the current rate of runoff discharge on the proposed site. The proposed facility will not cause any increased flood risks on-site or off-site. No part of the surface water management system will be located within 100 feet of any public supply well. The fish cleaning stations included for the proposed facility will be located over land. Waste associated with fish cleaning will be collected for disposal. Wastewater from the stations will be directed into the wastewater treatment system for the proposed facility. Wastewater from boats at the proposed facility will directed to the wastewater treatment facility through two pumpout stations located near the proposed fueling facility. Solid waste from the proposed facility and boats utilizing it will be disposed of in trash receptacles located throughout the proposed site. They will ultimately be picked up by a solid waste hauler for disposal. Erosion around the Mine Pit will be controlled through the placement of 2,200 feet of rip rap, vegetation planting and other erosion control techniques. The Mine Pit where the proposed marina is to be constructed is located on the south side of the Cross Florida Greenway Waterway (hereinafter referred to as the "Greenway Waterway") (formerly known as the "Cross Florida Barge Canal"), approximately one half mile east of where U.S. Highway 19 crosses the Greenway Waterway. The proposed site is approximately 4.75 miles from where the Greenway Waterway empties into the Gulf of Mexico. The Mine Pit is U-shaped, approximately 31.4 acres in size, and has an average depth of -20 feet, with pockets of -33 feet in depth. Marina proposed to fill the Mine Pit to 13.0 feet NGVD, place 2,285 linear feet of rip rap, and dredge 4.75 acres of the Mine Pit to -13.0 feet NGVD. The waters of the northwestern corner of the Mine Pit are separated from the waters of the Greenway Waterway by a plug of land approximately 100 to 150 feet wide. Marina proposed to remove the plug to create an entrance from the marina to the Greenway Waterway. The removal of the plug will result in a lowering of the level of water in the Mine Pit by approximately 3 to 5 feet to sea level, the level of the water in the Greenway Waterway. Marina also proposed to excavate a flushing canal channel between the Greenway Waterway and the northeast corner of the Mine Pit. The boundary of the property on which the Mine Pit is located is approximately 100 feet from the Mine Pit at its closest location. The Mine Pit was excavated from lime rock and Ona fine sands; Pits and Udorthents (both manmade) soil types exist throughout the project site. Weedy vegetation dominates the historically disturbed upland area surrounding the Mine Pit. Saltbush (Baccharis halimfolia), marsh elder (Iva frutescens), dog fennel (Eupatorium spp.), marsh fleabane (Pluches spp.), and waxmyrtle (Myrica cerifera) exist along the Greenway Waterway. Southern red cedars (Juniperius silcicola) are scattered throughout the area. Cattails (Typha spp.) have invaded the edges of the Mine Pit. Ownership of the Proposed Site Property. Marina has no ownership interest in the property where the Mine Pit is located. Nor has Marina ever held such an interest. The proposed facility site is held in three undivided interests. At the time the permit applications were filed by Marina, Marina had an option contract to purchase the proposed site. At the time of the final hearing of this matter, the option contract was no longer in force. Marina had also been authorized in writing prior to filing the permit applications to act as agent for the owners of the site for purposes of seeking environmental permitting. It was stipulated at the time of the final hearing that two of the three undivided interest owners had authorized Marina to act as their agent for purposes of obtaining the permits at issue in this proceeding. At the time of the final hearing, the third undivided interest owner did not authorize Marina to act as its agent for any purpose. Marina is agreeable to a new condition being added to the draft permit by the Department requiring Marina to submit documentation to the Department before any development of the proposed facility is commenced proving that Marina has acquired interests in the proposed site necessary for it to carry out the permit conditions. It is the Water Management District's policy in implementing Rule 40D- 4.301(g), Florida Administrative Code, which requires applicants to provide reasonable assurances concerning their proposed projects, is to require the land owner to be the permittee. The Greenway Waterway and the Surrounding Area. The Greenway Waterway consists of natural and man-made waters formerly intended to be used as the Cross Florida Barge Canal. The waters of the Greenway Waterway are classified as "Class III" waters. The Cross Florida Barge Canal was deauthorized on January 22, 1991. In its place was created the Cross Florida Greenways State Recreation and Conservation Area. The State of Florida owns the majority of the lands within the Cross Florida Greenways State Recreation and Conservation Area. The state can, therefore, control development along the Greenway Waterway. A portion of the Greenway Waterway was constructed as part of the Cross Florida Barge Canal by digging a canal from a spillway at Lake Rousseau, east-northeast of the proposed site, to the Gulf of Mexico. This portion of the canal (hereinafter referred to as the "Greenway Canal"), is straight and was designed for a depth of 12 feet. The actual depth of the Greenway Canal varies and, in some locations, is 18 feet deep. The Greenway Canal is also approximately 250 feet wide. The Greenway Canal intersects the Withlacoochee River, which is located to the east of the proposed facility. Prior to the construction of the Greenway Canal, the Withlacoochee River ran from a spillway at Lake Rousseau to the Gulf of Mexico. After construction of the Greenway Canal, the portion of the Withlacoochee River which connects with the Gulf of Mexico was, and still is, separated from the Greenway Canal by an earthen berm. The western portion of the Withlacoochee River (hereinafter referred to as the "Upper Withlacoochee"), continues to run from Lake Rousseau for approximately 1.3 miles to the Greenway Canal and then runs to the Gulf of Mexico through the Greenway Canal. The depth of the Upper Withlacoochee varies from river bottom which is exposed at low tide to areas of approximately 20 feet. The depth of water, the speed at which water flows and the amount of aquatic vegetation in the Upper Withlacoochee varies depending on the amount of water released from Lake Rousseau through the spillway. For the past year, the rate of flow in the Upper Withlacoochee has been relatively high. There are currently two public boat ramps, but no marinas, located on the Greenway Canal. One of those boat ramps is in disrepair and the evidence failed to prove that it is in use. There are no marinas on the Upper Withlacoochee or the Greenway Canal. There is a Florida Marine Patrol station located on the Greenway Canal approximately one-half mile east of U.S. Highway 19. Whether the presence of the station will have any impact on the enforcement of speed limits in the Greenway Canal is purely speculative. Approximately 2 miles west of the proposed facility is an existing active mining operation owned by Independent Aggregates. Barges transport mine product along the Greenway Canal from the mine to the Gulf of Mexico. Another organization, known as "Holnam", has been permitted by the Department to construct a barge-loading facility opposite the Independent Aggregates' barge facility and mine. It is unlikely, however, that Holnam will actually begin operating barges on the Greenway Canal. A speed limit of 25 miles per hour has been imposed by the Department throughout the Greenway Canal. The speed limit was imposed to protect West India Manatee that utilize the Greenway Canal. The Upper Withlacoochee has been designated an idle-speed zone by local ordinance. Crab traps are located along the banks of the Greenway Canal for approximately four miles into the Greenway Canal from the Gulf of Mexico. Traps are generally anchored to the bottom by lines and are spaced approximately 100 feet apart, 20 to 15 feet from the bank. A channel extends for approximately 12 to 15 miles into the Gulf of Mexico from the mouth of the Greenway Canal. The channel is marked. There are obstructions and shallow water outside this channel. Prudent boaters will continue in the channel for approximately four to nine miles before turning north or south into the Gulf of Mexico. Operators of smaller boats and those with knowledge of the area are able, however, to navigate north or south closer to shore. Impact on the Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The West India Manatee is an endangered species, which means that it is in danger of extinction. Approximately 3000 manatees are found in Florida waters. Approximately half are located on the east coast and half on the west coast of Florida. There is little interchange between the two groups. The State of Florida is attempting to restore the manatee population to a size which will help to insure its survival as a species. In order for the manatee population to survive, human development and interaction with manatees must be managed. Manatee habitat needs to be preserved from development. Two of the most significant challenges to the survival of the manatee are the number of manatees killed by boats and the increasing number of boats in Florida waters. Collisions with boats is the greatest known cause of manatee deaths (approximately 25 percent). Manatee change locations frequently searching for food, drinking water, resting areas, potential mates and birthing areas. They also return to preferred habitat features. Manatee are attracted to areas that are calm and quiet for birthing areas. Shallow water, accessible from deeper water, is essential for birthing. After giving birth, the mother and calf generally remain in the area for some period of time, sometimes as long as months, until the calf is able to survive elsewhere. They will leave an area, however, if disturbed. Boat traffic, even at slow speeds, can cause disruption to mothers and young calves. Boat traffic can separate a mother and calf. There are approximately 300 manatee in the waters of northwestern Florida (from Tampa Bay to the Suwannee River), which includes the area of the proposed facility and Citrus County. This population has been increasing in recent years. Manatee in the waters of northwestern Florida require a stable source of warm water during the winter. During the winter ambient temperatures drop below the level at which the manatees' metabolism will sustain them. As a result of the need for warmer waters, most of the manatee in northwestern Florida spend the winter in Citrus County. Kings Bay, Crystal River and Homosassa all provide warm water locations for manatee. These sites are located to the south of the proposed facility. Kings Bay is the most important winter manatee habitat on the west coast of Florida. During the rest of the year, when waters are warmer, manatee leave their warm water, winter habitats to forage and investigate other habitat. Manatee that winter in the warm water sites in Citrus County generally migrate to the north. They travel to, and past, the mouth of the Greenway Canal, returning by the same general routes in the winter. Manatee also linger at the mouth of the Greenway Canal at the Gulf of Mexico because that area offers a combination of a relatively deep-water channel with adjacent shallow water and aquatic vegetation. Manatee use the waters of the Greenway Canal and the Upper Withlacoochee. The Greenway Canal is not, however, considered particularly good habitat for manatee. It has relatively deep water, steep banks, little fresh water and little vegetation of interest to manatee. In 1991 Citrus County adopted a Manatee Protection Plan as part of its comprehensive growth management plan. The Manatee Protection Plan does not identify the Greenway Canal as essential manatee habitat. The Manatee Protection Plan was adopted with the assistance of the Department. The Plan was based upon a compilation of manatee studies, marina inventory studies, and a comprehensive view of the county's waterway systems at the time the Plan was adopted. "Essential manatee habitat" is defined in the Manatee Protection Plan as "any land or water area constituting elements necessary to the survival and recovery of the manatee population from endangered status". Whether an area is "essential manatee habitat" is to be considered under the Plan as "a criteria for determining areas where dock facilities should be limited." The definition of "essential manatee habitat" for purposes of the Plan is different from the standard to be applied in by the Department in this case. The definition in the Plan is similar to the federal criteria considered and found to be different from that applicable to Department permitting cases in Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 651 (Fla. 3d DCA 1992). The Manatee Protection Plan contemplates that a master plan will be undertaken to establish the capacity of the Greenway Canal for boat and marina facilities. That master plan has not been developed. The fact that the master plan has not been formally undertaken, however, is of little consequence. The Department, due to the State's ownership of the land surrounding the Greenway Canal, has been able to consider possible uses of the Greenway Canal for boating and marinas without a formal master plan. The Manatee Protection Plan does not support a finding that the proposed facility will not have an adverse impact on the manatee. Although the waters of the Greenway Canal do not constitute good manatee habitat, the Upper Withlacoochee is considered good habitat, depending on the amount of water being released from the spillway at Lake Rousseau. Manatee have used the Upper Withlacoochee for feeding, resting and birthing. The Upper Withlacoochee has limited human activity, light boat traffic, sources of fresh water, a warm-water spring and aquatic vegetation. The Upper Withlacoochee has been used for birthing. Infant mortalities reported in the area suggest that the Upper Withlacoochee is used as a preferred birthing area. The rate of mortality suggests a higher rate of successful births. Aerial survey and mortality data also suggests that the Upper Withlacoochee and the Greenway Canal are utilized throughout the year by manatee. Greatest use is seasonal. Aerial survey data underestimates the number of manatee utilizing the Upper Withlacoochee and the Greenway Canal due to the lack of water clarity and due to the meandering course of, and vegetation along, the Upper Withlacoochee. Manatee mortality data concerning the Greenway Canal and the Upper Withlachoochee provides some indication of the fact that the number of manatee that travel through the Greenway Canal and the Upper Withlacoochee is not insignificant. While there was considerable evidence presented concerning whether the number of manatee that utilize the Greenway Canal and the Upper Withlacoochee is accurate or has been underestimated, based upon aerial survey data and manatee mortality comparisons, the critical fact proved by the evidence in this case is that a significant number of manatee do use the Upper Withlacoochee as habitat, including for birthing. The evidence also proved that, in order for manatee to use the Upper Withlacoochee, it is necessary that they travel the length of the Greenway Canal. Another critical fact proved by the evidence is to this matter is that manatee traveling to and from the Upper Withlacoochee must travel the Greenway Canal from the Gulf of Mexico past the proposed facility. The evidence was also unrefuted that increased boat traffic from the proposed facility will have the potential to adversely impact the manatee. That adverse impact will take the form of physical injury due to collisions and stress on manatee from increased human activity. The activity could reduce the use of the Upper Withlacoochee as habitat. What remains to be determined is whether the conditions of the draft permit will provide adequate assurances that the impact will not be contrary to the public interest. The Department's Bureau of Protected Species Management determined that, without the conditions to be added to the draft permit it suggested, the following impacts could be expected as a result of approval of the proposed facility: The probability of manatee/boat collisions increases with increasing boat traffic where boaters and manatees regularly inhabit the same waterways. While the current level of barge/vessel traffic does not appear to be a problem, increasing the amount of recrea- tional and commercial vessel traffic to the proposed levels in this narrow waterway is expected to adversely impact the endangered manatee. Barge trips may become more frequent, and barges traveling down the center of the canal drives manatees toward the edges of the canal. This increases the risk of manatee/recreational boat collisions, and increases the risk of these recreational boats driving manatees underneath, ahead of or behind traveling barges. The probability of lethal and sublethal propeller strikes increases. Also, there is not sufficient space for manatees between the canal bottom and the bottom of a fully loaded barge, with only one foot clearance as typical for loaded barges. The probability of a manatee being crushed will increase, and this impact is difficult to offset with conservation measures other than not allowing the activity. Page 2, Petitioners exhibit 7 and CRMI exhibit 10. The evidence in this case supports the foregoing conclusions. The increased boat traffic from the proposed facility, even if limited to sailboats and even if power boats are allowed at lower speed limits than currently in force in the Greenway Canal, may cause impacts with manatees due to the increased traffic and the use of the Greenway Canal by barges and recreational boats. It is possible that manatees, confronted by oncoming recreational boats and barges, may be forced into the path of barges and be crushed. Barges used by Independent Aggregates are approximately 72 feet wide and 250 feet long and are pulled or pushed by tugboats. The probability of this conflict taking place will be greater if barge use of the Greenway Canal is increased as proposed by Independent Aggregates. The greatest threat to the manatee of the proposed facility is the threat of death or injury as a result of cuts or blunt trauma from collisions of boats with manatees. This threat is primarily associated, however, with faster moving, power boats. Therefore, the extent of possible adverse impact on the manatee will be determined largely by the speed limit imposed in the Greenway Canal. To mitigate against the possible adverse impact on manatee, the Department has included certain conditions in the draft permit. Those conditions are found in Condition 6 of the draft permit and were recommended by the Department's Bureau of Protected Species Management. As a result of the Bureau of Protected Species Management's review of the proposed facility, it was recommended that the proposed facility not be approved if all of the conditions suggested by it were not included in the draft permit. All of the conditions recommended, except one, were included in the draft permit. The condition not included was one that provided that a violation of manatee speed zones would be grounds for revocation of the lease of any slip or dock space at the proposed facility. The lease revocation condition recommended by the Bureau of Protected Species Management was not included in the permit due to concern by the Department as to whether the condition could be legally imposed. The language of the memorandum of review of the proposed facility from the Bureau of Protected Species Management suggesting that the proposed project should not be approved unless all recommended conditions are accepted is standard language used by the Bureau and not intended to be strictly interpreted. The Bureau ultimately concluded that, despite its recommendation, it believes that the conditions of the draft permit are adequate to offset adverse impacts to the manatee. The Bureau's explanation is sufficient to eliminate any inference that otherwise may be drawn from its suggestion that the proposed facility should not be approved due to the exclusion of the permit condition concerning revocation of leases for speed zone violators. Condition 6 requires, among other things, that signs warning of possible manatee activity be displayed during construction, that personnel associated with the project be educated about the manatee, and that other measures designed to protect manatee during construction be followed. Due to the fact that most of the construction will take place in the enclosed Mine Pit, there should be little, if any adverse impact on manatee as as result of construction. Condition 6 also provides that permanent manatee warning signs and information concerning manatee be posted by the marina, and that a manatee awareness education program be established at the proposed facility. Condition 6 also limits the use of the boat ramp of the proposed facility to boats stored "on-site." The ramp will not be open to the general public. Finally, condition 6.l. provides the most important limitation of the use of the proposed facility. Condition 6.1 limits use of the proposed facility to sailboats and, therefore, prohibits the use of power boats: . . . until the applicant has provided documentation to the Department that manatee protection speed zones in the CFBC have been revised, approved by the Bureau of Protected Species Management, and posted in the CFBC. Occupancy of the facility by sailboats shall not be restricted. The limitation of the use of a marina to sailboats should adequately mitigate the adverse impacts to the manatee from the proposed facility. See Coscan, at 651. The effect of condition 6.l. is to allow Marina to obtain a modification of the draft permit after it is issued to allow power boats based upon events which may take place in the future. There are no guarantees that those events will result in reasonable assurances that the adverse impact to the manatee from power boat use at the proposed facility will not be contrary to the public interest. The speed zones which must be established and approved by the Bureau of Protected Species Management will be established, if at all, through rule- making procedures. See Rule 62N-22.011, Florida Administrative Code. The process would allow public input. Additionally, the outcome of the process would be subject to challenge under Chapter 120, Florida Statutes. Because of possible challenges to the efforts to impose speed zones, it is possible that speed zones adequate to reduce the adverse impacts to the manatee which would satisfy the public interest test applicable in this matter will not be adopted. The standards which the Department must adhere to in establishing speed zones are not the same standards applicable in this matter. In this matter, reasonable assurances must be given that there will not be adverse impacts to the manatee, a threatened species, contrary to the public interest. Establishing speed zones pursuant to other provisions of law will not insure that the reasonable assurances required for the issuance of the permit at issue in this case will be given. Although the resulting speed zones may be adequate to protect the manatee, there is no way to determine what kind of speed zones will be established. Without knowing the ultimate speed zones which may be established, or, more importantly, to know that the speed zones will meet the public interest test applicable in this matter, it is not possible to find the reasonable assurances Marina is required to provide at this time or at any time before the proposed facility is actually permitted. If reasonable assurances can be given that the use of power boats in the proposed facility will not be contrary to the public interest once speed zones are established, Marina or the owner of the proposed facility may apply for a permit modification. At that time the requisite reasonable assurances concerning power boat use can be determined. The provision of condition 6.l. allowing Marina to avoid seeking a permit modification at that time is, therefore, at a minimum, unnecessary, and at its worse, an effort to allow Marina to avoid having to provide the necessary reasonable assurances concerning the use of power boats. If only the impact on the manatee were considered in establishing speed zones, it could be concluded slow or idle speed should be imposed throughout the Greenway Canal and for some distance into the Gulf of Mexico in order to adequately reduce the adverse impact from the proposed facility on the manatee. Establishing speed zones, however, requires a consideration of other factors. The evidence in this case failed to address those factors sufficiently to recommend a condition to the draft permit concerning speed zones. Based upon the foregoing, it is concluded that reasonable assurances have not been given that there will not be unreasonable adverse impact to the manatee if the use of power boats at the proposed facility is allowed as provided in condition 6.l. of the draft permit. Other Public Interest Criteria. The evidence failed to prove that the proposed facility will adversely affect the public health, safety or welfare or the property of others. The evidence also failed to prove that the proposed facility will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The docks and other marina facilities will all be restricted to the Mine Pit, which is not now open to navigation. There is adequate width in the Greenway Canal to allow boats to exit the Mine Pit into the Greenway Canal and for boats and barges in the Greenway Canal to pass each other. Rip-rap to be placed along the Mine Pit shore and other shoreline stabilization activities will be adequate to prevent erosion and shoaling. Groundwater flow at the proposed site should not be adversely affected by the proposed facility, except as discussed, infra. The proposed facility should not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed facility. Recreational values (boating and fishing) should be enhanced as a result of the proposed facility. If condition 6.l. is not eliminated and power boats are allowed in the Greenway Canal, there are no assurances that the recreational value provided by the manatee will not be adversely impacted. The proposed facility is intended to be permanent. The evidence failed to prove that the proposed facility will adversely affect or enhance significant historical or archaeological resources under the provisions of Section 267.061, Florida Statutes. If condition 6.l. is not modified to eliminate the use of power boats automatically upon the establishment of speed zones, there are no reasonable assurances that the current condition and relative value of functions being performed by the Greenway Canal and the Upper Withlacoochee will not be adversely affected by the proposed facility. Otherwise, the proposed facility should not have an adverse impact on current conditions and relative value of current functions of the area. Groundwater Quality Standards. The general geology in the area of the proposed facility and the Greenway Canal is known as karst terrain. Karst terrain is geology formed by the solution of limestone over millions of years. Sequential episodes of exposure of the Floridan aquifer, which underlies the area, occurs in karst terrain as the result of the natural formation of sink holes. These sink holes impact the movement of groundwater. Information exists to reasonably describe the hydrogeology of the area in "regional" terms. There is insufficient information generally available about the specific hydrogeology of the proposed site or the immediately surrounding area. Underlying the entire area and the proposed site in particular is the Floridan aquifer. The properties of the Floridan aquifer in coastal Citrus County, including the proposed site, can vary enormously over relatively short vertical distances. This variability impacts the movement of groundwater. The groundwater under the proposed site is classified as G-II. The terms "potentiometric surface" are used to describe the level to which groundwater will rise above sea level. The higher groundwater rises above sea level, the thicker the layer of underlying drinkable water should be before reaching an interface between drinkable and undrinkable water. In central Citrus County, the potentiometric surface is relatively low and flat at approximately 5 or 6 feet above sea level. The resulting interface between drinkable and nondrinkable water is found at 200 or more feet. Due to natural geological conditions, moving to the northwest of Citrus County, including the Greenway Canal area, potentiometric levels are higher. Therefore, thicker layers of drinkable water should be found around the proposed facility site and the Greenway Canal than in central Citrus County. Because of higher potentiometric surface in the area of the Greenway Canal, the layer of drinkable water would be expected to continue beyond 120 feet below the surface. Construction of the Greenway Canal has resulted in the intrusion of saltwater from the Greenway Canal into the groundwater. It has also resulted in the upconing of mineralized (sulfate) waters from deeper to less deep levels within the Floridan aquifer. These impacts have been significant with regard to the chloride levels (from the saltwater) and sulfate upconing. The impact of the construction of the Greenway Canal on saltwater intrusion and sulfate upconing is the result of the lowering of the surface waters to sea level in the Greenway Canal. The lowering of the level of water in the Greenway Canal has had the effect of decreasing the potentiometric surface and, consequently, reducing the thickness of the layer of drinkable groundwater. Saltwater has intruded along and beneath the Greenway Canal. The extent of this intrusion is represented graphically on Petitioner's exhibits 13 and 14. Saltwater intrusion has occurred primarily as a result of downward leakage of saltwater traveling up the Greenway Canal. The saltwater intrusion has been localized around the Greenway Canal. The wedge of saltwater intrusion has reached to approximately where U.S. Highway 19 crosses the Greenway Canal, approximately one-half mile east of the proposed site. Although it is "theoretically" possible that the saltwater wedge could continue to move along the entire length of the Greenway Canal, the evidence fails to support such a conclusion. Due to freshwater discharges from Lake Rousseau, the evidence supports a conclusion that the saltwater wedge will not move further eastward to any significant extent. The lowering of the waters of the Greenway Canal to sea level has had the effect of bringing sea level elevations to the Floridan aquifer several miles further inland than had been the case before construction of the Greenway Canal. Groundwater adjacent to the Greenway Canal, which is at levels higher than sea level, has discharged into the Greenway Canal. This has caused a lower groundwater level and the movement upward of groundwater. Similar effects have occurred naturally along the Withlacoochee River. As groundwater rises it comes into contact with a geologic unit which contains calcium sulfate. The sulfate mixes with the groundwater causing the "mineralized" groundwater. While the change in surface waters in the Greenway Canal was quick, the change in groundwater quality from saltwater intrusion and sulfate upconing has taken place only as fast as groundwater in the area flows. Generally, groundwaters flow very slowly. The impact of the Greenway Canal on upconing of sulfates will continue over time. Mineralized waters will continue to move upward and, perhaps, laterally away from the Greenway Canal. Pockets of mineralized waters (containing sulfates) can be found naturally occurring around the proposed site. Sulfate enriched groundwater in coastal areas naturally move toward, and discharge into, the surface waters along the coastal boundary. This process occurs along the Gulf of Mexico and the shoreline of Citrus County. The construction of the Greenway Canal has disrupted this natural process. The Mine Pit, when it was in use, was dewatered to different levels at various times. The dewatering took place for varying periods of time. Usually, the Mine Pit would be completely dewatered for a period of approximately three months. On one occasion, the Mine Pit was dewatered for a period of two years (1989 to 1991). It was dewatered to allow the removal of dolomite. The Mine Pit was allowed to fill back up with water after each dewatering. The dewatering of the Mine Pit was regulated by the Water Management District. The permit allowing dewatering of the Mine Pit required that the permit holder mitigate for adverse impacts of dewatering, including the inducement of natural contaminants into the aquifer. The evidence failed to prove, however, the extent of adverse impacts of the dewatering or whether the permit holder actually mitigated against any such adverse impacts. The lowering of the water level in the Mine Pit caused some upconing of sulfates for the same reason that the digging of the Greenway Canal did. Lowering the water level in the Mine Pit lowered the potentiometric level. The evidence, however, failed to prove the extent of the impact or how long the impact lasted. The lowering of the water level of the Mine Pit to sea level by connecting the Mine Pit to the Greenway Canal as proposed by Marina will have the same general impact as the digging of the Greenway Canal on the upconing of sulfates. Unlike the impact of the dewatering of the Mine Pit, the proposed modification will be permanent. Lowering the water level will have the same type impact for the same reasons that the digging of the Greenway Canal caused upconing. The potentiometric level will be permanently lowered; the layer of drinkable water will be permanently decreased. The evidence failed to prove that the lowering of the water level of the Mine Pit to sea level as a result of the proposed project will have the same impact on saltwater intrusion. This impact is less likely because the Mine Pit is four and a half miles inland from the Gulf of Mexico. The upconing of sulfates as a result of the construction of the proposed facility will cause the levels of sulfates found in some portion of the currently drinkable layer of groundwater to exceed water quality standards. The area impacted will consist of groundwater which would otherwise have been expected to be potable. Comments concerning the proposed facility were provided to the Department by the Water Management District. By letter dated August 16, 1995, the Water Management District informed the Department that it was anticipated that the proposed facility would result in saltwater intrusion and upconing of mineralized water and that the area's groundwater could be expected to be degraded inconsistent with Water Management District rules. In response to the Water Management District's comments, Marina agreed to undertake a hydrogeologic study to gather site specific information to address those concerns. As a part of Marina's study, one monitoring well was drilled on the proposed site. The well was drilled to a depth of 450 feet in order to gather data concerning water quality at various depths. In early 1996, the Water Management District concluded that the results of the study undertaken by Marina had resolved its concerns. The test well was drilled to the south of the Mine Pit, approximately 2500 feet from the Greenway Canal. The water quality tests run on water taken from the test well reflected a sharp change in water quality at a depth of approximately 120 feet. The water below that level contained high levels of sulfates: 552 milligrams per liter of sulfate. Immediately above the high sulfate waters, low sulfate levels (12 milligrams per liter) were found. This result is contrary to what would be expected to be found based upon the higher potentiometric surface in this area of Citrus County. Because the potentiometric surface is higher in the area, it would be expected that the layer of drinkable groundwater would be considerably higher than 120 feet. The findings concerning the thickness of the drinkable groundwater found at the test well are consistent with the conclusions concerning the impacts of the digging of the Greenway Canal. As a result of the digging of the Greenway Canal and the lowering of the water level to sea level, the resulting decrease in the potentiometric surface has caused the upconing of mineralized waters and a decrease in the layer of drinkable groundwater. The Department and Marina have not disputed the fact that drinkable groundwater will be impacted by the upconing of mineralized waters (sulfates) as a result of connecting the Mine Pit with the Greenway Canal and lowering the level of water in the Mine Pit to sea level. The Department and Marina, however, have suggested that the extent of the impact of the lowering of the water level in the Mine Pit will not extend more than 100 feet from the Mine Pit and will be limited to the proposed site. The evidence failed to support this position. The unplugging of the Mine Pit will have the effect of increasing the area of water below sea level in the area by 12 percent of the size of the area of the Greenway Canal. Data from test wells around the Greenway Canal and other data has indicated that the upconing of mineralized water as a result of the lowering of the water level in the Greenway Canal has extended considerably more than 100 feet from the Greenway Canal. In light of the fact that the Mine Pit is equal in surface area to 12 percent of the surface area of the Greenway Canal, there is reason to be concerned that the area of impact from the lowering of the water level in the Mine Pit will also be significant. In light of the foregoing, and due to the variability of the geology of the area, the data from a single well on the site is of questionable value. Data from a single well simply does not provide the information necessary for Marina to provide reasonable assurances that the impact on groundwater from its proposed facility will be limited to an area of 100 feet from the Mine Pit. There is simply not enough data concerning the Mine Pit to conclude with any reasonable assurance that the upconing of mineralized waters (containing sulfates) will be limited to an area of 100 feet around the Mine Pit. Because of the size of the Mine Pit in relation to the Greenway Canal and the impact on upconing from the Greenway Canal, it is more likely that the impact of upconing will exceed 100 feet. A log of geologic characteristics of the test well was maintained. A confining unit or layer was found between the high-sulfate and low-sulfate waters at between 110 and 120 feet below the surface. The evidence failed to prove, however, the extent to which the layer may extend horizontally from the well location. In light of the general geology of Citrus County and the region around the proposed site, insufficient data exists to reach any conclusion about the extent of the confining layer. Establishing the extent of the confining layer would require more extensive (and costly) study of the site. The existence of a confining layer would also have no significant impact on the degree of upconing as a result of lowering the water level in the Mine Pit. I. Surface Water Quality Standards. Petitioners stipulated that the proposed facility would not violate surface water quality standards except with regard to the standard for chloride. Because of the flow of fresh water from Lake Rousseau and the flushing canal to be constructed at the proposed site, reasonable assurances have been given by Marina that there will be sufficient flushing of the Mine Pit to preclude a violation of chloride standards for surface waters. The evidence presented by Petitioners concerning the possibility that the salt water wedge resulting from the construction of the Greenway Canal may extend landward and eventually into the Mine Pit was too speculative and "theoretical".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order denying Citrus Recreational Marina, Inc.'s application for wetland resource permit (dredge and fill) and the application for Management and Storage of Surface Waters Permit. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996. COPIES FURNISHED: Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Peter Belmont, Esquire 511 31st Avenue, North St. Petersburg, Florida 33704 Wayne Hrydziusko Assistant General Counsel Douglas H. MacLaughlin Assistant General Counsel State of Florida, Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Douglas Roberts, Esquire HOPPING, GREEN, SAMS & SMITH, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners. The notice of rights provided, among other things: PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. There is no dispute that this provision is clear and unambiguous. Petitioners did not receive the mailed staff report and notice of rights. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996. At all times material hereto, Petitioner Durando was not an attorney. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the petition for an administrative hearing as untimely. DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1996.
