The Issue The issue to be determined in this proceeding concerns whether the applicant has provided reasonable assurances that the proposed bridge project will meet the requirements of Chapter 403, Florida Statutes, and the various provisions contained in Title 17, Florida Administrative Code, so that a dredge and fill permit should be issued. More specifically, the issues concern whether the various water quality standards embodied in Title 17 of the Code and Section 403.918(1), Florida Statutes, will be complied with and whether the public interest standards in Section 403.918(2), Florida Statutes, will be met in the sense that the project can be assured not to be contrary to those standards.
Findings Of Fact Taylor County, through its duly-elected representative body, the Taylor County Commission, has filed an application seeking authority, by the grant of a "dredge and fill permit", to place fill material and to perform construction of a bridge across an unnamed canal in Taylor County, Florida, in the vicinity of Keaton Beach. The proposed bridge would connect Balboa Road and Marina Road on Pine Island in the community of Keaton Beach. Pine Island is an elongated strip of land separated from the Taylor County mainland by water and lying generally in a north/south direction. It is an artificial island created by dredge spoil from dredging activities by which certain canals were constructed during the decade of the 1950's. It is bounded on the west by what is known as "Main Canal", on the north by an unnamed canal, and on the east by what is known as "Back Canal". South of Pine Island is an inlet of the Gulf of Mexico. The canals involved in this proceeding, named above, are Class III waters of the State of Florida. Marina Road runs down the center of Pine Island. Lots to the west of Marina Road abut Main Canal and lots to the east of that road abut the Back Canal. Pine Island has been platted into approximately 110 lots. There were 47 homes and two (2) trailers on Pine Island at the time of the hearing. Only 17 full-time residents live there. Keaton Beach Road, also known as County Road 361, runs in a north/south direction generally and relatively parallel to Marina Road on land lying across Main Canal from Pine Island. In the past, Pine Island Drive connected Keaton Beach Road and Marina Road. It traversed Main Canal over what was known as the "humpback bridge", a wooden structure. The bridge ultimately became decayed and hazardous so that it was removed by the County in 1983. East of Pine Island, forming a continuation of Pine Island Drive, is a limerock road. This road presently provides the only vehicular or pedestrian access to Pine Island. It crosses the Back Canal over a culverted-fill area, making a 90 degree turn to the north and runs north along Back Canal. It then turns in an easterly direction until it meets Balboa Road. The property to the east of the center line of Back Canal and to the east of Balboa Road belongs to Dr. William Kohler. Other than the one-half of the culverted-fill area that lies west of the center line of Back Canal, the limerock road is on Dr. Kohler's land. In 1974, Taylor County was concerned about the use of the humpback bridge by school buses. It asked Dr. Kohler to grant it an easement over the limerock road for use by school buses. That limerock road passes over portions of Lots 44 and 45. Although Lots 44 and 45, east of Balboa Road, were not included in the written easement, Dr. Kohler has allowed use of the limerock road that passes over portions of Lots 44 and 45 since that time. Balboa Road presently terminates in a cul-de-sac at the edge of the unnamed canal that bounds the north end of Pine Island. On Pine Island, Marina Road is paved at the present time past the front of and to the northern property boundary of Lot 13, Petitioner Brumbley's residence lot. At that point, Marina Road ends at the south side of an unnamed dirt road. Between the north side of that unnamed dirt road and the unnamed canal lie Lots 2-6. The proposed Balboa bridge will start at the end of Balboa Road, cross the unnamed canal, cross a portion of Lot 2 and 3 on Pine Island, and tie into the existing grade at the "T" intersection where Marina Road deadends into the unnamed dirt road. The unnamed canal runs approximately east and west at the location of the proposed bridge. The bridge would be constructed on top of revetted fill material that will be placed to the north and south of a 15-foot wide span over the middle of the unnamed canal. The bridge construction shall be according to the Florida Department of Transportation specifications for road and bridge construction. The bridge will have a DOT approved guard rail on each side. No water quality violations will result from the proposed project. Turbidity violations may occur on a temporary basis during construction and so turbidity screens and silt barriers will be installed by the applicant to prevent such turbidity from migrating away from the site itself. A condition on the grant of the proposed permit has already been agreed to by the Respondent parties which will require turbidity and erosion-control devices prior to any excavation or placement of fill material. Specific condition eight also requires that these control devices remain in place until the fill has been vegetatively stabilized after construction is over. The proposed project will have a positive impact on public safety and welfare by providing proper and appropriate access to Pine Island by a more stable, safe roadway to which the bridge will be connected. During periods of high water, the present limerock access road floods, limiting emergency access to the Island. On one occasion, an injured person had to be carried down the limerock road to meet an ambulance at another location because the ambulance was unable to traverse the flooded limerock road. It is Dr. Kohler's intention to terminate use of the limerock road by members of the public since it is on his property. When that occurs, there will be no access to Pine Island unless the proposed bridge is built. The present limerock access road can be dangerous and slippery when wet, and persons using the limerock road often travel "dangerously fast", as testified to by Petitioner, Doris D. Brumbley. The 90-degree turn of the limerock road has no guardrails. The proposed project will, to a minimal, temporary degree, adversely impact fish or wildlife and their habitats, marine productivity and the current condition and relative value of functions being performed by the area affected by the proposed bridge. The canal system was originally excavated out of the salt marsh. Being man-made structures, their sides have slumped somewhat and have established a small, littoral zone where vegetation grows. Mud flats at the bottom of the canal bank allow the growth of oysters. The fill area associated with the proposed bridge, however, will have a surface area and volume comparable to the culverted fill that will be removed at the point where the road presently crosses Back Canal. When the culverted-fill area or plug across Back Canal is removed, the lost vegetation and oysters will become re- established at that location, offsetting the loss that will occur at the location of the bridge. Various marine species will also become established on and benefit from the shelter of the bridge and its structure, as well. The project will not cause harmful erosion or shoaling. The banks that will result from the removal of the culverted fill and the sides of the filled areas associated with the bridge will be protected from erosion with vegetation and revetments. The proposed project will enhance the flow of water in Back Canal and will improve navigation and flushing. Water flow through the existing culvert is presently considerably restricted when compared to the water flow beneath the proposed Balboa bridge area. The existing culvert is not at the bottom of the filled area. Therefore, at low water, most of the culvert is exposed, precluding the culvert from functioning at maximum capacity to aid in flushing with the water quality benefits caused by flushing being thus retarded. The lack of water flow has caused a portion of Back Canal, south of the culverted-fill area, to fill up with sediment. At low tide, parts of the Back Canal are without water. The increased flow that will result from removal of the fill plug and culvert where the road presently crosses Back Canal will allow property owners along Back Canal to navigate their boats out into the Gulf of Mexico, thus improving the recreational value of Back Canal and the navigation in the canal system. There are no similar fill projects planned for or expected in the Keaton Beach area. All three Petitioners are concerned that storm water runoff from the proposed bridge will flood their property, however. At the present time, the road in front of the Petitioners' lots is paved, with the pavement ending at the northernmost end of the Brumbley property. Since the Petitioners' lots already receive roadway runoff from the existing paved road, any increase in runoff to their lots would have to come from storm water flowing along the length of the road from the proposed project. The road which is to cross the proposed bridge will be composed of a 20-foot wide strip of asphalt, with 5-foot shoulders on each side. The slope from the crown of the road to the outer edge of the pavement will be one-quarter inch per one foot. The shoulders will have a slope of one-half inch per foot. Thus, rain water will flow off the sides of the road and down the shoulders, rather than down the length of the road towards the Petitioners' lots. Moreover, no additional water should be directed to the Petitioners' lots since the proposed road extension between the end of the bridge and the Petitioners' lots would be flattened. Water flowing off the bridge due to gravity will be shed toward the revetment which extends down to the canal, rather than towards the Petitioners' property. Storm water impacts will be addressed again by the Suwannee River Water Management District. A storm water permit application has been submitted to the Suwannee River Water Management District and is required before the proposed project construction can start. In that storm water permit application, the applicant acknowledged its obligation and responsibility to obtain all required permitting before construction starts. The draft permit reinforces this at specific condition six: "This permit does not constitute any approval of the storm water management system which must be obtained separately from the appropriate agency." All of the Petitioners are concerned about the increase in vehicular traffic which would pass in front of their lots and the Brumbley's particularly are concerned that light from headlights of increased traffic will be cast upon and into their house at night. It is clear that traffic passing the Petitioners' lots will increase due to the proposed project. It is equally clear from the angle of the bridge shown on Joint Exhibit 2 and the elevations of the bridge, shown on Joint Exhibit 3, that light from the headlights of vehicles approaching Pine Island after dark will illuminate, at least momentarily, portions of the Brumbley home.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of the Taylor County Commission for the dredge and fill permit at issue, as described in the above Findings of Fact and Conclusions of Law, be granted on the terms and conditions set forth in the Department's draft permit, in evidence as Joint Exhibit 7. DONE AND ENTERED this 3rd day of April, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER Respondent DER's Proposed Findings of Fact: 1-24. Accepted. Petitioners' Proposed Findings of Fact: None filed. Respondent Taylor County Commission's Proposed Findings of Fact: The County adopted the proposed findings of fact filed by the Department. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulatin Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William & Maria Greene P.O. Box 38 Madison, FL 32340 Doris S. Brumbley P.O. Box 742 Monticello, FL 32344 William H. Congdon, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Conrad C. Bishop, Jr., Esq. P.O. Box 167 Perry, FL 32347
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact RCA is developing 91 acres in a 219-acre basin near Ocoee in Orange County as a residential subdivision, Twin Lakes Forest. In an effort to attenuate the polluting effects of water draining from the subdivision into waters of the state, RCA has begun construction of an earthen dam or berm so as to cut off the south end of a lake bed, proposing to transform that part of the now almost dry lake into a "retention pond." LAKE OR MEADOW? The amount of water in Lake Meadow, the lake involved, fluctuates with the level of the groundwater. It has been as deep as 18 feet and, at other times, has nearly dried up completely. Like one-quarter of Orange County's 1,000 to 1,300 lakes, Lake Meadow rises and falls, comes and goes. With a few exceptions, such as Lake Alfreda and Crooked Lake, most intermittent lakes in the area are very small, one to five acres. A map prepared by a tax assessor's office on August 8, 1978, depicts Lake Meadow covering approximately 50 acres. Petitioner Boyett's Exhibit No. 1. In 1969, 1970, and 1972, Lake Meadow covered the full extent of what landowners in the area consider to be the lake bed, some 50 acres. Petitioner Boyett's Exhibits Nos. 3, 4, and 6. Two years ago a boy from Minnesota drowned in Lake Meadow. Today, the lake bed is mostly dry. In the early 1960s, Lake Meadow attained its highest level in the last 30 years, covering substantially more than 50 acres, and spilling over to connect with Lake Kerr to the east. In July of 1978, Lake Meadow had disintegrated into at least seven discrete pools. Petitioner Boyett's Exhibit No. 4. The lake has been very low before, too, but the area is drier this year than at any time in the past 30 years. As recently as 1980, DER would have asserted dredge and fill jurisdiction over this project, according to DER's James Morgan. Even under the driest conditions, there is water in the south end of the lake bed where Ms. Caflish caused a hole to be excavated so she would always have water for irrigating her orange groves. The water there is very cool, 10 feet below the surface. Whether a true spring is present was not established by the evidence. The paving and drainage facilities location plan prepared for RCA by its consulting engineers shows existing ponds within the Twin Lake Forest subdivision. There are two canals in the vicinity. INTERMITTENT VEGETATION There are no pine saplings in Lake Meadow's bed, but there are clumps of willow and willow fringes north of and downgrade from the berm. Dog fennels taller than a man were the predominant plant species in immediate proximity to the berm. Dog fennels spring up when lake beds go dry. Previously dominant vegetation like cattails and saw grass have retreated into dormancy and tubers. When water returns, these plants will emerge and again become dominant. STORMWATER DETENTION The berm is to be built to an elevation of 80 feet above sea level. The berm has a liner intended to prevent lateral seepage. The sand used to construct it has been compacted and is proposed to be seeded and mulched after cracks caused by recent rains are repaired and construction is completed. Eventually, the berm is to become the responsibility of the City of Ocoee. Along an overflow weir with a height of only 78 feet above sea level, a skimmer would be installed to keep paper, oil, and other floatable debris out of the northern stretches of Lake Meadow. It would not be effective for that purpose if the lake's surface rises higher than 80 feet above sea level. AN INCH AN ACRE In deciding whether to exempt an applicant from stormwater discharge permitting requirements, 1/ DER uses this rule of thumb: A retention pond should be able to hold the same volume of water as the volume of a sheet of water one inch thick lying over the basin drained. Research has demonstrated that the initial flush of stormwater runoff is markedly more laden with pollutants than discharge that follows in the same storm. Only one in ten rainfalls exceeds one inch. The retention pond planned for the south end of the lake bed would have an area of 8.25 acres. It is designed to hold some 18 acre feet, just in the part of the pond above 76 feet above sea level, almost one inch for each of the 219 acres in the basin, or more than two inches for each acre RCA proposes to develop. Water would be collected and conveyed by a pipe entering the pond with its top at 70 feet above sea level and its bottom at 65 feet above sea level. RCA owns the lake bed on either side of the proposed berm. SUBMERGED BERM FORESEEN If the pond will not drain, it will not provide adequate storage. If the level of the lake rises above the berm, there would be no retention of stormwater discharge in the pond. There will be no pond as such if Lake Meadow returns: the "retention pond" will be part of the lake. If past experience is a reliable guide, at some point in the next ten years, the lake can be expected to rise to 85.5 feet above sea level. (Testimony of Klos.) PETITIONERS SUBSTANTIALLY INTERESTED The respondents stipulated to petitioners' "standing." Petitioners own land adjacent to Lake Meadow and some of them have hunted birds and fished on Lake Meadow. Ducks, quail, and alligators have all been seen on or near the lake. PROPOSED ORDER CONSIDERED Respondent DER has submitted proposed findings of fact, proposed conclusions of law, and a proposed recommended order which have been considered in preparation of the foregoing findings of fact. Paragraphs 1 and 3 through 12, the first two sentences of paragraph 13, and the first sentence of paragraph 14 of DER's proposed findings of fact have been adopted, in substance, where relevant. Paragraph 2, the last sentence in paragraph 13, and the final two sentences of paragraph 14 of DER's proposed findings of fact have been rejected as unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER exercise dredge and fill jurisdiction over the berm site, pursuant to Rule 17-4.28, Florida Administrative Code. That DER require RCA to apply for a license to discharge stormwater, pursuant to Chapter 17-25, Florida Administrative Code. DONE AND ENTERED this 22nd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: On May 3, 1989, Cersosimo submitted an application for a Management of Surface Water Permit to the District. Subsequent to the submission of this application, the Polk County Board of County Commissioner (Commissioners) added an additional requirement to Cersosimo's Planned Unit Development (PUD) that there was to be a pre- development/post-development match for basin runoff in the event of a twenty- four hour one hundred (100) year storm event, i.e. following completion of this project (post-development) it will handle the same outflow or flow of storm water for the twenty four-hour one hundred-year storm event as in a pre- development situation. Based on the Commissioners' requirement, the design of the PUD was amended to provide for the required storage capabilities. On July 26, 1990, Cersosimo submitted to the District, its amended application, Management of Surface Water Permit No. 405733.01 incorporating the changes necessitated due to the Commissioners' additional requirement as to storm water runoff. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County Engineering Division, noted in a letter of that same date referring to Cersosimo's modification of Retention Pond No. 300 for the project in question that "this revision appears to meet the PUD condition by the Board of County Commissioners for drainage and compliance with the Surface Water Management Ordinance". The application of July 26, 1990, amends the original application by superceding and replacing that application. In connection with the application for permit, soil borings were taken at the site location for the retention ponds in order to establish the elevation of the seasonal high water level (SHWL) for that site. The borings indicated an elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The District conservationally established the elevation for the SHWL of this particular site as 112 feet AMSL. The floor elevation of the lowest retention pond was established at 114.00 feet AMSL. The elevation of the surface of Lake Mabel for the ten year flood warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z), Florida Administrative Code. District policy requires the floor elevation of a dry retention pond to be a minimum of one foot above the established elevation of the SHWL of that particular site. Even though the surface elevation of Lake Mabel for the Ten Year Flood Warning Level was established as 114.50 feet AMSL, there is insufficient evidence to show that there was lateral migration of water from the lake's edge to the site of the soil borings such that it was evidenced by a demarcation in the soil profile. To the contrary, the evidence shows that there were demarcations in the soil profile to establish an elevation for the SHWL for this site of 110 feet to 112 feet AMSL. The designed weir crest in the lower retention pond, Pond No. 300, has an approximate elevation of 118.50 feet AMSL which prevents water from coming over the top into the pond in the event Lake Mabel reaches the ten year flood level warning elevation of 114.50 feet AMSL. The distance from the present water edge of Lake Mabel to the bottom of Pond No. 300 would be approximately 600 feet, laterally and if the lake reached the ten year flood level warning elevation of 114.50 feet AMSL, the lake's water edge would be approximately 100 feet laterally from the bottom of Pond No. 300. There was sufficient evidence to show that even if the surface elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention ponds as presently proposed with a floor elevation of 114.00 feet AMSL would still percolate sufficiently, even though the percolation may be diminished from what it would be under present conditions, so that there would still be a pre- development/post-development match for basin runoff. Cersosimo can give reasonable assurances that the surface water management system as presently proposed will not diminish the capabilities of Lake Mabel to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code. Among others, the following specific conditions in pertinent part will be placed on the permit, if granted: . . . The applicant shall visually monitor the ponds on a monthly basis to ensure that the ponds are dry within 36 hours from the end of the last rainfall event. Should the ponds fail to percolate the required water quality volume per District criteria, a permit modification shall be required. . . .
Recommendation Based upon consideration of the foregoing Findings of Fact and Conclusions of law, it is, recommended that the Southwest Florida Water Management District enter a Final Order granting the application for Management Surface Water Permit No. 405733.01, as proposed by the District. RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. The Petitioner did not submit any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by Respondent Cersosimo 1. - 7. Adopted in Findings of Fact 1-7, respectively. 8. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively. 11. Adopted in Findings of Fact 12 and 13. 12.-13. Adopted in Findings of Fact 13 and 11, respectively. Respondent District adopted Respondent Cersosimo's Proposed Findings of Fact, therefore the same rulings would apply as was applied to Respondent's Cersosimo's Proposed Findings of Fact above. COPIES FURNISHED: Catherine D'Andrea, Esquire Susan Dietrich, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Gary L. Gandy Omega Farm Post Office Box Omega Waverly, Florida 33887 Beach A. Brooks, Jr., Esquire Post Office Drawer 7608 Winter Haven, Florida 33883 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues to be determined in this proceeding are whether Fury Management, Inc., is entitled to an environmental resource permit under chapter 373, Florida Statutes (2012),1/ and a sovereignty submerged land lease under chapter 253, Florida Statutes, for a proposed project in the waters off the coast of Key West, Florida.
Findings Of Fact The Parties Petitioner Last Stand is a corporation formed in 1987 to protect, promote, and preserve the quality of life in Key West and Monroe County "with an emphasis on the environment." Last Stand has 235 members. The president of Last Stand, Mark Songer, said that members use the "back country" area off Key West, which includes the proposed lease area, for boating, fishing, swimming, and bird watching. He was not specific about the number of members that do so. Petitioner George Hallorhan, a member of Last Stand, named nine members of Last Stand that use the back country area for recreational activities. Hallorhan is a natural person residing at 16B Hilton Haven Drive in Key West. Hallorhan has used the waters that include the proposed project site for sailing, fishing, boating, snorkeling, and nature observation. The Department is the state agency charged by statute with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to review applications for submerged land leases for structures and activities that will preempt the use of sovereignty submerged lands. Fury is a Florida corporation that is in the "water attraction" business and has been operating in Key West for 17 years. It currently operates a recreational site similar to the proposed project nearby.2/ Fury owns no riparian uplands. The Affected Waters and Water Bottom The proposed lease area is approximately .6 miles offshore of Key West and is 17,206 square feet in size (0.39 acres).3/ The site is within the Florida Keys National Marine Sanctuary, which is designated an Outstanding Florida Water. Outstanding Florida Waters are waters designated by the Environmental Regulation Commission as worthy of special protection because of their natural attributes. See § 403.061(27), Fla. Stat. The proposed lease area is close to the Key West National Wildlife Refuge. It lies between two shallow landforms known as Pearl Bank and Frankfurt Bank. The closest upland is Wisteria Island, which is undeveloped. The water depth at the site is about ten feet. The Department and Fury contend the bottom beneath the proposed floating structures is rocky and mostly denuded, with no seagrasses and only scattered sponges and octocorals (soft corals) that do not constitute a "benthic community." They found turtle grass growing between the denuded areas and beyond the project site. "Benthic communities" are defined in Florida Administrative Code Rule 18-21.003(12) as areas where "associations of indigenous interdependent plants and animals occur," such as grass beds, algal beds, sponge beds, and octocoral patches. Petitioners' experts said there are seagrasses, octocorals, sponges, and algal species beneath the proposed structures that compose a benthic community. The marine biologists employed by the Department and Fury spent more time investigating the resources at the site than did Petitioners' biologists. In addition, Fury's consultants determined with greater precision the location of the benthic resources in relationship to the proposed floating structures than did Petitioners' consultants. The more persuasive evidence regarding the benthic resources and their locations was the evidence presented by the Department and Fury. The Proposed Activities Fury proposes to permanently moor a registered vessel consisting of two connected, floating platforms. It was sometimes referred to as a "barge." One floating platform would support up to ten jet skis, and the other would support up to ten kayaks. The structure would be used to moor the catamaran that brings customers to and from the site. There would also be three floating, inflatable water toys moored at the site: a trampoline, a climbing wall, and a slide. The area between the floating platforms and water toys would be roped-off to create a central swimming area. The platforms and the water toys would be secured to the water bottom with permanent anchors. The floating platforms would remain moored at the site (except when a hurricane is approaching), but the water toys, jet skis, and kayaks would be brought back to an upland location each night. The proposed project would be part of the "Fury Ultimate Adventure," a six-hour tour in which customers are taken to a reef for three hours in the morning to snorkel and, then, to the floating platforms for three hours in the afternoon to swim, ride jet skis and kayaks, and play on the water toys. Fury would provide an educational program for its customers to inform them about the importance of the marine environment, including seagrasses, mangroves, marine turtles, manatees, corals, whales, and fishes. Educational documents would also be made available to Fury's customers. Impact Assessment in General In assessing the potential impacts of the proposed project, consideration must be given to the fact that Fury currently operates the same activities only 500 feet away. The proposal is to move the activities to the new site where they will be subject to regulation for the first time. Fury's existing operations do not require an environment resource permit from the Department because Fury uses a structure that has been registered as a vessel and uses conventional anchors. Generally, vessel operation and mooring are not subject to Department regulation because they do not involve construction in waters of the state. Fury's existing operations do not require a lease from the Board of Trustees because the activities are being conducted over private water bottom, not sovereignty submerged land. There are two similar, competing operators near Wisteria Island. The competing operators do not have leases from the Board of Trustees or permits from the Department because they are operating as vessels, using conventional anchors, and moving every day. Fury's existing operations and the operations of its competitors are not subject to the conditions that can be imposed in a sovereignty submerged lands lease and environmental resource permit to protect the environment. Environmental Impacts The floating platforms and water toys would be secured to helical screw anchors installed into the bottom at locations where there are no seagrasses, sponges, or octocorals. The proposed anchors and anchor lines are designed to avoid the damage to seagrasses and other benthic resources often caused by conventional vessel anchors and chains that can drag across the bottom. The ten-foot water depth at the project site ensures that activities on the surface, such as boating and swimming, will not impact the bottom. The proposed project would cause some shading to submerged resources, but the shading would be minimal and would not cause the loss of seagrasses or other benthic resources. There would be no pollutant discharges associated with the proposed project. The catamaran that transports customers to the site has two Coast Guard-approved restrooms. The jet skis would not be fueled at the site. Fury is required to monitor water quality at two sampling sites, one within the lease area and a second 300 feet away to represent background conditions. Fury's operations would be subject to a sewage handling plan, a waste management plan, a fueling plan, and an emergency spill response plan that address these potential sources of environmental pollution. The Florida Fish and Wildlife Conservation Commission was informed of the proposed project, but made no objection to the Department. Navigational Impacts The proposed site lies between Pearl Bank and Frankfurt Bank, which are about 1,500 feet apart. The proposed project is 107 feet wide at its widest point, leaving adequate space for navigation around the anchored platforms and water toys. The water depth in the remaining space between the banks varies from six to 12 feet, which is sufficient water depth for the vessels that use the area. There are no marked channels in the area. Arnaud Girard, a salvage boat operator, said there is an unmarked "nine- foot" channel between the banks that is used by commercial and recreational boaters. Girard's testimony about boats using the nine-foot channel and why he opposes Fury's proposed project was confusing. Girard seemed to indicate, for example, that Fury's existing operation is a greater impediment to the use of the nine-foot channel than Fury's proposed project. Fury's customers would be using watercraft around the project site for only three hours each day. Only seven jet skis would be out at any one time, six ridden by customers and one ridden by a Fury safety guide. Fury would not be adding more jet skis into the area because jet skis are already using the area as part of Fury's existing operations. The jet ski-riding area would be marked off with four red buoys permanently anchored to the bottom. The guide would accompany the customers to the ride area to monitor the jet ski use and keep the customers inside the riding area. The riding area (about 19 acres) is not a part of the area to be leased. Other vessels are not excluded from the riding area. The floating platforms and water toys will have Coast Guard-approved lighting. The Coast Guard does not believe the structures would cause hazards to public safety or navigation if they are adequately lighted. It is in Fury's financial interest to provide safe navigation for its customers. Numerous live-aboard vessels anchor in these waters. Navigation in this area already requires a careful lookout for anchored obstacles. The preponderance of the evidence shows that the proposed activities would not create greater challenges for vessels attempting to navigate through the area or greater potential for collisions than exist currently. The proposed activities do not create a navigational hazard. Impacts to Public Use The proposed project would exclude the public from 17,206 square feet of sovereignty land, which takes into account the overlying floating platforms, moored catamaran, and floating water toys as well as the central swimming area. This exclusion would be offset in part by the public's access to the waters where Fury currently anchors its vessel and water toys. The United States Fish and Wildlife Service reviewed the application and is satisfied that Fury's use of buoys to mark the jet ski-riding area will prevent jet skis from entering the wildlife refuge, where jet skis are prohibited. Aesthetic Impacts Petitioners contend that the aesthetic values of the proposed lease area would be significantly diminished. The assessment of aesthetic values is often subjective and, to avoid subjectivity, requires consideration of all vistas, human activities, and structures that make up the current aesthetics of the area. It is noted, for example, that Hallorhan testified that he does not visit the area anymore because of existing "jet skis and noise." See also Fury Exhibit 1. On this record, the evidence is insufficient to show that the existing aesthetic values in the area would be diminished by the proposed project. Secondary Impacts The proposed project would have minimal impact. There are few places in the general area with a hard bottom and no seagrasses or benthic communities that would be adversely affected, making it difficult for any future applicant to demonstrate minimal impact. Petitioners failed to prove that there would be significant secondary impacts associated with the proposed project that require denial of the environmental resource permit. Public Interest/Environmental Resource Permit To obtain a permit for construction activities in an Outstanding Florida Water, it is necessary to show that a proposed project would be "clearly in the public interest." Section 373.414(1)(a) directs the Department to consider and balance the following criteria as part of this determination: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Fury's proposed activities would not adversely affect the public health, safety, or welfare or the property of others. The proposed activities would not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed activities would not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed activities would not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The proposed activities would be of a permanent nature. The proposed activities would not adversely affect significant historical and archaeological resources. The current condition and relative value of functions being performed by areas affected by the proposed activities would not be diminished. It is in the public interest to regulate Fury's activities, which are now unregulated. Fury's proposed project is clearly in the public interest. Mitigation Under section 373.414(1)(b), if an applicant cannot eliminate potential adverse impacts, the Department must consider measures proposed by or acceptable to the applicant to mitigate the adverse effects. Initially, the Department determined that all of the potential adverse impacts of Fury's proposed project would be remedied through avoidance and minimization, and, therefore, mitigation was not required. Later, "in an abundance of caution," the Department decided to require mitigation "to offset the minimal adverse impacts" which were identified as being associated with the screw anchors installed in the substrate and the permanent nature of the project. However, at the final hearing, Tim Rach, chief of the Bureau of Submerged Lands and Environmental Resources, said he did not think mitigation was needed. Fury proposes to pay $4,000 to the Florida Keys National Marine Sanctuary Foundation ("Foundation"), a 501(c)(3) corporation, for the Foundation's Key West mooring buoy program. Similar donations to benefit the buoy program have been accepted in the past by the Department as mitigation. The purpose of the mooring buoy program is to provide a place to moor vessels so that conventional vessel anchors do not have to be used. The buoys are permanently located near or above areas of coral reef or other sensitive benthic communities within the Florida Keys National Marine Sanctuary to prevent damage by vessel anchors. Petitioners contend that Fury's proposed donation to the Foundation is unacceptable because it was not made for an "environmental creation, preservation, enhancement or restoration project" as required by section 373.414(1)(b)1. The Department considers the buoy program to be a preservation project because it preserves environmentally-sensitive benthic communities. Petitioners contend that the monetary donation is also improper because the buoy program is not an environmental project formally "endorsed" by the Department. The Department has accepted donations to the mooring buoy program several times in the past and states that it endorses the program as a preservation project. Public Interest/Sovereignty Submerged Lands Lease Rule 18-21.004(1)(a) requires that activities on sovereignty submerged lands not be contrary to the public interest. Rule 18-21.003(51) defines public interest in this context as: demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. Therefore, to obtain authorization to use sovereignty submerged lands lease, an applicant must create a net public benefit. Regulating Fury's proposed activities by issuing the permit and lease creates a net public benefit because such regulation allows the Department to ensure that the currently- unregulated activities do not adversely affect environmental resources. Fury's proposed project would not affect any riparian rights. Traditional Recreational Uses Petitioners contend that the proposed project would conflict with rule 18-21.004(2)(a), which requires that all sovereignty lands "shall be managed in essentially their natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming." Petitioners assert that the proposed water toys are not traditional recreational uses that are allowed under this rule. Swimming is a traditional recreational use, as is the use of personal watercraft. Floating "waterparks" and inflatable water toys are recent and uncommon uses. Such uses, far from shore, are not traditional uses.4/ However, the rule also allows "[c]ompatible secondary purposes and uses which do not detract from or interfere with the primary purpose." The Department views Fury's primary uses as swimming and boating and the other uses as compatible secondary uses. Water-Dependent Activities Rule 18-21.004(1)(g) limits activities on sovereignty lands to "water dependent activities" unless the Board of Trustees determines that it is in the public interest to allow an exception as determined by a case-by-case evaluation. A water-dependent activity is defined in rule 18-21.003(71) to mean an activity that can only be conducted on, in or over water because it requires direct access to the water body. Inflatable water toys like the ones proposed by Fury are relatively new products, and the question whether they are water dependent has only recently been considered by the Department. The Department determined they are water dependent and has authorized two similar operations in other parts of the state. Petitioners claim that rock climbing, jumping on a trampoline, and sliding are not activities that require direct access to the water, and, therefore, the water toys are not water-dependant activities. It is an erroneous analysis to consider whether jumping, climbing, and sliding can also be done on land. These activities are transformed when the medium into which a person jumps, slides, or falls is water. Many people enjoy jumping, sliding, and falling into water. To experience this kind of recreation, one needs water. Past Violations Under Florida Administrative Code Rule 40E-4.302(2), the Department must consider a permit applicant's past violation of any Department rules adopted pursuant to sections 403.91 through 403.929 or any District rules adopted pursuant to part IV, chapter 373. Petitioners contend that a 2009 Department enforcement case against Fury shows Fury is incapable of providing reasonable assurance that it will comply with all applicable permit requirements. The Department issued a Notice of Violation ("NOV") to Fury on July 14, 2009, for "Unauthorized structures and activities on or over Sovereignty Lands," which was identified as a violation of section 253.77 and rule 18-21.004(1)(g). The NOV did not involve a violation of a rule adopted pursuant to chapters 403 or 373. Therefore, rule 40E-4.302(2) is inapplicable. There is no similar rule of the Board of Trustees that requires it to consider past violations of rules adopted pursuant to chapter 253 when reviewing an application to use sovereignty submerged lands. The enforcement case against Fury was satisfactorily resolved. The violation does not indicate that Fury should be refused a sovereignty submerged lands lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Consolidated Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands be issued by the Department; The permit should direct that Fury's monetary donation for mitigation shall be paid to the Florida Keys National Marine Sanctuary Foundation for use in the Florida Keys Mooring Buoy Account 30.4.4.6.; and The lease should be modified to show the area to be leased is 17,206 square feet. DONE AND ENTERED this 31st day of December, 2012, 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 31st day of December, 2012.
