The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of March, 2006.
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
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
The Issue The issue to be determined is whether the applicants, William Guererro and Christina Bang, a/k/a Christina Guerrero (Applicants), are entitled to issuance of a Consolidated Environmental Resource Permit and State Lands Approvals for various structures on the Applicants’ property at 58458 Overseas Highway, Marathon, Florida.
Findings Of Fact The Parties Petitioners Bernard Spinrad and Marian Spinrad are the owners of adjoining parcels of property with the addresses of 58418 and 58420 Overseas Highway, Marathon, Florida. They acquired the property in December 2001. They recently completed construction of two residential structures on the properties. The structure at 58418 Overseas Highway is currently listed for sale. The structure at 58420 Overseas Highway is a vacation rental property. Neither structure is Petitioners’ permanent residence. The DEP is the state agency with the power and duty to regulate activities in waters of the state pursuant to chapter 373, Florida Statutes. The DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on activities on state sovereignty submerged lands under chapter 253. The Applicants, are the owners of adjoining parcels of property with the address of 58478 Overseas Highway, Marathon, Florida (the Property). They purchased the Property in June 2010. The structures that are the subject of the Permit are to be constructed near or waterward of the shoreline of the Property. The Property The Property is located on Grassy Key, an island in the middle Florida Keys, within limits of the city of Marathon, Monroe County, Florida. U.S. Highway 1 passes through Grassy Key. The Property -- as is that of Petitioners -- is situated between U.S. Highway 1 and the open waters of the Atlantic Ocean. In the early part of the 20th century, a portion of Grassy Key was platted as the Crains Subdivision. The properties owned by Applicants and Petitioners are within the Crains Subdivision. During the periods of time directly relevant hereto, the Property has been owned by Burgess Levine, who owned the property during the period prior to the October 2006, landfall of Hurricane Wilma until June 2010, and by Applicants, who have owned the Property since June, 2010. Grassy Key Grassy Key is three-miles long, and has 6800 feet of beaches, none of which are designated as critically eroded. The island fronts the Atlantic Ocean to the east, and the more protected waters of Florida Bay to the west. The waters along the Atlantic Ocean shoreline of Grassy Key in the area at issue are shallow, with an extremely flat bottom having a very gradual slope of approximately 1 to 30, meaning there is a one foot vertical change over 30 horizontal feet. The mean tide range at the Property is about 1.7 feet. Under normal conditions, the stretch of Grassy Key at issue is fairly characterized as a zero-wave energy shoreline. Waves break well offshore and there is negligible wave energy propagating beyond that point. What shoreline energy exists is produced by small tide currents and wind-shear on the water surface that moves water along the shoreline. The direction of the water movement is dependent on tides and wind direction, with the predominant direction being from north to south. Erosive and other significant changes to the shoreline of Grassy Key, including that stretch fronting the Property, are event driven, meaning when there is a coastal storm that causes a rise in the water level, substantially higher than the astronomical tide, waves can propagate onto the shoreline of Grassy Key. The wind and waves can come from virtually any direction depending on the storm. A storm of greater intensity will create higher energy-wave conditions. Although storm conditions may only occur over 1 to 3 percent of a given year, with the rest of the year having zero-wave energy, on average the coastline may be considered to be of moderate-wave energy. The beach sediment along the Grassy Key shoreline in all areas pertinent hereto consists of calcareous material, made up of the breakdown of corals and coralling algae, with a significant fraction of other detrital marine material. The upper beaches of Grassy Key, including that on the Property, generally consist of coarse, calcareous sand with a small fraction of calcareous silt-size particles. The inter-tidal areas along Grassy Key consist of predominantly fine calcareous sand, with a greater fraction of calcareous silt. Extending out into the nearshore area all along Grassy Key, including that fronting the properties owned by Petitioners and Applicants, the sediment becomes a very fine calcareous sand, with a greater fraction of the material being calcareous silts and clays, and with a substantial amount of organic mud of a marine origin, classified as Islamorada muck. Since at least the 1970s, one wading in the nearshore waters along Grassy Key could expect to sink into the surface muck to a depth of anywhere from six inches to two feet. The depth of muck becomes less as one moves further out and approaches the offshore Thalassia beds. Although some areas offer more resistance than others, it is routine to experience difficulty in walking and wading along the coast of Grassy Key because of the high percentage of clays and silts in the substrate. The band of muck narrows as one proceeds towards the northern stretches of Grassy Key, until one reaches the furthest areas to the northeast where the nearshore transitions to exposed rock and hard bottom. The surface muck that exists in the nearshore waters of Grassy Key, having a sizable component of decaying organic material, gives off an odor of hydrogen sulfide when disturbed that some find to be unpleasant. The odor is a naturally- occurring condition of the sediment, and is common in mucky areas all around the southern coasts of Florida. The suggestion that the shoreline in the vicinity of the Petitioners’ property, and that of Applicants, was a naturally occurring white, sandy beach is contrary to the greater weight of the evidence. To the extent the shoreline at Petitioners’ property may have been temporarily altered by the overwash from Hurricane Wilma as discussed herein, Petitioners’ own post-Wilma man-made efforts at beach stabilization, or the redistribution of sediments occasioned by Hurricanes Isaac and Sandy in 2012, the evidence demonstrates the “mucky” condition described herein to be more consistent with the natural and long-standing conditions of Grassy Key. Thus, as Grassy Key exists in the present time, one may expect to encounter six inches to two feet of loose muck anywhere along the nearshore area. Close to shore of Grassy Key are scattered beds of Halodule, a species of seagrass that tends to emerge and grow in shallow waters. The growth of Halodule is influenced by the nature of the sediments, the salinity temperature, and clarity of the water. Storm events have a significant effect on its growth. Given its transient nature, Halodule may vary in any given area from nonexistent, to spotty, to well-established beds. As one moves further offshore, the Halodule transitions to large, continuous beds of Thalassia. Thalassia grows in deeper water, and is common to a depth of about 12 feet. Being deeper and less affected by storm energy, the line of the Thalassia beds off of Grassy Key has not substantially changed over time. As wind and waves come across the grass beds, and as tides ebb and flow, grass blades are cropped. The amount of grass varies seasonally to a degree. The cropped and dislodged seagrasses, along with other organic material entrained therein, are naturally carried by the tides and wind and stranded along the shoreline. The stranded material is known as wrack, and the line of stranded material is known as the wrack line. Grassy Key is well known for the large seagrass wracks that pile up on the shoreline. A wrack line is a normal and natural occurrence in marine environments like that of Grassy Key, and can be a good indicator of the upper edge of the water action at a particular time. The cropping and dislodging of seagrass is accentuated during major or minor storm events. During Hurricane Rita in 2005, a very large seagrass wrack was blown onto the shoreline of Grassy Key. It was subsequently blown back out to sea by the overwash from Hurricane Wilma. The decomposition of the seagrass and other organic materials creates a significant odor that is not uncommon. That odor of decomposing material is well-recognized as being associated with Grassy Key. Areas along the shoreline of Grassy Key have been used by sea turtles for nesting. However, the nature of the substrate in the area of the Property is not optimal for nesting. Generally, sea turtles require a nesting site with 15 to 20 inches of sand above the water table so as to allow them to dig a suitably deep and dry cavity for their eggs. The natural substrate along the section of Grassy Key at issue is coarser and more difficult to dig into, and does not have the depth of sand for the best chance of a successful nest. Despite the nature of the substrate, Petitioner testified as to her observation of turtle nests along her property in each year from 2006 through 2010. Since the SW Groin, the Mid-bulkhead, and the NE Groin were all in existence and functioning during that period, with work to the SW Groin having been completed by 2008, the preponderance of the evidence demonstrates that those structures have no effect on the success or failure of sea turtles to nest along the property. To the extent nesting has been disrupted since 2011, the most logical inference that can be drawn from the evidence is that such disruption is the result of the Mid-Jetty Extension, which is slated for removal under the terms of the Permit. The preponderance of the evidence demonstrates that the structures and activities authorized by the Permit will have no adverse effect on sea turtles. Hurricane Wilma In October, 2005, Grassy Key was pounded by Hurricane Wilma. The storm passed to the north, and created a substantial storm surge that moved from west to east across Grassy Key. The storm surge created a “ridge and runnel” effect on the Atlantic facing shoreline, with the channelization of the storm tide flow creating erosion and gullies on upland shore-adjacent properties. The storm surge and flooding across Grassy Key caused substantial wash-outs of sand; transported a large volume of sandy, upland sediments into the nearshore waters of the Atlantic Ocean; and created washover “fans” of material along the shoreline of Grassy Key. The effects of the Hurricane Wilma storm surge manifested just north of the Property, became substantial at the Property, and continued south down the shoreline for a considerable distance. At the Property, sand was pushed from 50 to 100 feet waterward from the existing shoreline, and a substantial runout was created running parallel and north of the SW Jetty. The sand pushed into the water buried everything in its path, including seagrasses. In short, the post-Wilma shoreline from the Property south along Grassy Key was left in a completely disrupted state. The nearshore waters fronting the properties owned by Petitioners and Applicants were affected by the deposition of sandy, upland sediments, which temporarily created areas of substantially harder-packed sediment. Over time, as the shoreline equilibrated and the sandy sediment distributed through a broader area, more typical shoreline conditions returned. The photographic evidence demonstrates that the Mid- bulkhead and the SW jetty structures were impacted by the Hurricane Wilma storm surge. In addition, the sandy area between the mid-bulkhead and the SW jetty was pushed seaward from its previous location. The scars from Hurricane Wilma remain evident through the most recent aerial photographs received in evidence. It is visually apparent that seagrass, though reappearing in patches, has not reestablished in the nearshore areas along the affected shoreline of Grassy Key -- including the areas in front of the Property and the property owned by Petitioners -- to the extent that it existed prior to the storm. Post-Wilma Activities When Hurricane Wilma hit, the Property was owned by Burgess Lea Levine. Not long after Hurricane Wilma, Ms. Levine shored up the SW Jetty, and performed work in the “beach” area between the mid-bulkhead and the SW jetty. The photographic evidence also supports a finding that the rock outline of the Mid-jetty was reestablished to its pre-Wilma configuration. The repairs to the SW Jetty resulted in a structure that is virtually indistinguishable in size and shape to the SW Jetty as it presently exists. The wrack line at the beach area after it was “worked” following the passage of Wilma, shows the area in which work was done to be generally consistent with -- though slightly seaward of -- the 2005 post-Wilma shoreline. In 2008, Ms. Levine applied for a series of exemptions and for consent of use for state-owned lands for “shoreline repair, replace earthen ramp with a concrete ramp, repair wood deck, replace mooring piles & maintenance dredge existing channel w/in Atlantic Ocean.” On September 19, 2008, the DEP issued a regulatory authorization and proprietary submerged land approval. The Rights of Affected Parties that accompanied the September 19, 2008, notice provided that “[t]his letter acknowledges that the proposed activity is exempt from ERP permitting requirements” and that “this determination shall expire after one year.” The notice of Rights of Affected Parties did not apply to the proprietary authorization. At some time after issuance of the regulatory authorization, Ms. Burgess initiated additional work to repair the SW Jetty. The photographic evidence, which is persuasive, indicates that the work on the SW Jetty, including the concrete cap, was complete by the end of 2008. When Applicants purchased the Property, the determination of exemption issued in 2008 had, by application of the notice of Rights of Affected Parties, expired. Shortly after the Applicants purchased the property, they had the existing family home demolished. Applicants intend to construct a winter vacation home for their personal use on the property. 2012 Storms In August and October 2012, Grassy Key was subject to event-driven conditions as a result of the passage of Hurricanes Isaac and Sandy. Those storms redistributed large areas of sediments that had been moved offshore by the effects of Hurricane Wilma. The Proposed Permit The February 20, 2013, Permit provides that the structures described herein do not require the issuance of an Environmental Resource Permit, subject to the criteria and conditions in Florida Administrative Code Rule 40E-4.051. The Permit provides that the boat ramp is eligible to use the general permit in Florida Administrative Code Rule 62-330.417, the repair and replacement of the dock is exempt pursuant to section 403.813(1)(b), Florida Statutes, the maintenance dredging of the Channel is exempt pursuant to section 403.813(1)(f), and that the repair and replacement of the NW Jetty, the SW Jetty, and the Mid-bulkhead are exempt because the structures are “historic in nature and pre-dates Department regulations.” In addition to the regulatory authorizations, the Permit granted proprietary authorization by Letter of Consent for the dock pursuant to Florida Administrative Code Rule 18- 21.005(1)(c)4., and for the Channel, the NW Jetty, the SW Jetty, and the Mid-bulkhead pursuant to rule 18-21.005(1)(c)7. The Permit established the mean high-water line as that existing in 1974 and depicted on the “Richmond Survey.” Proprietary authorization for the boat ramp was determined to be unnecessary due to its location above the mean high-water line. Finally, proprietary authorization for the “Sandy Area” or beach between the Mid-bulkhead and SW Jetty was granted by Letter of Consent pursuant to rule 18-21.005(1). On September 20, 2013, the DEP filed a Notice of Additional Grounds for Exemption Determination, in which it found each of the structures subject to the regulatory review to “have only minimal or insignificant individual or cumulative adverse impacts on water resources” and to thus be exempt from the need to obtain an Environmental Resource Permit pursuant to section 373.406(6), Florida Statutes. On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action in which they agreed to certain additional conditions, and which referenced the October 1, 2013, repeal of rule 40E-4.051, and its replacement by the “Statewide ERP rules.” For purposes of this de novo proceeding, the proposed Permit at issue includes the February 20, 2013, Permit; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action. The Proposed Structures Groins There has been some confusion relating to the names of the structures that are subject to the proposed Permit. Two of the structures are referred to as jetties, the NE Jetty and the SW Jetty, and the middle structure is referred to as the Mid- bulkhead. A jetty is a navigation structure that is constructed at a barrier inlet. Its purpose is to stabilize the inlet and prevent shoaling by “jetting” current and wave-driven sand further offshore, such that the offshore bar is moved into deep enough water to allow navigation in and out of the tidal inlet, and allowing the tidal current between the ocean and the receiving body of water to keep the inlet scoured and open. There are 48 jetties on the open coast of Florida, none of which are in the Florida Keys. A groin is a structure designed for shore protection purposes. A groin is typically aligned perpendicular to the shoreline, or “shore normal.” The structures identified in the Permit as the NE Jetty and the SW Jetty are clearly groins, and not jetties. The mid-bulkhead is a groin, generally for shore confinement, with a channel-facing bulkhead. For purposes of continuity, the structures will be identified by the names given them in the Permit. Since there is negligible wave energy along the shoreline normal conditions, the groins have little or no day- to-day effect on longshore transport. Under storm conditions, the structures affect longshore transport, as evidenced by accretional “fillets,” and function as shoreline protection and confinement structures. The rock groins provide shelter, habitat and structure for corals, sponges, lobster, and fish in the area. The preponderance of the evidence demonstrates that the groins authorized by the Permit will have no adverse effect on fish and wildlife resources. NE Jetty The NE Jetty was originally constructed in the early 1960s, likely concurrent with the dredging of the navigational channel. The quality of the aerial photographs of the period make it difficult to tell if the NE Jetty was a loosely-placed rock embankment or a more well-designed and constructed structure. However, the fillet of sand accreted to the north of the Channel demonstrates that the jetty was in existence and functioning as a shore-protection structure. By the 1970s, the NE Jetty had become overwhelmed by longshore sediment transport from the northeast. Sediment overtopped the NE Jetty and filled in the landward reaches of the Channel. At that point, ability of the NE Jetty to perform as a shore protection structure was compromised to the point that it could no longer hold the shoreline out of the basin or the landward portion of the Channel. The Mid-bulkhead became the dominant structural control over the shoreline and started to accrete the shoreline to the northeast. At some time between 1977 and 1981, the Channel was maintenance dredged pursuant to a permit issued by the Department of Environmental Regulation, DEP’s predecessor agency. The NE Jetty appeared on the plans for the maintenance dredging. Thus, the most reasonable inference that can be drawn from the evidence is that the NE Jetty was repaired and restored in conjunction with the approved maintenance dredging. By 1981, the NE Jetty had been restored as the dominant shore protection structure north of the Channel, and a fillet of accreted material had been reestablished. The aerial photographs from that period are not sufficiently distinct to determine the precise size, shape, and configuration of the NE Jetty at that time. However, there is no evidence of additional work having been performed on the NE Jetty between 1981 and 1985. By 1985, the NE Jetty existed in substantially the size, shape, and configuration as it existed at the time of Hurricane Wilma. Between 1981 and the 2005 arrival of Hurricane Wilma, the evidence is convincing that the NE Jetty was holding up the shoreline to the northeast and preventing sediment from filling in the upper reaches of the Channel. Although the evidence suggests that the NE Jetty had, by 2005, begun to show its age, the continuous presence of an accretional fillet demonstrates that it continued to serve its function as a shore-protection structure. Although the NE Jetty suffered damage from Hurricane Wilma, it continued to perform its shoreline protection function. Aerial photographs taken in 2009 and 2011 show a relatively distinct structure with a well-defined accretional fillet. Thus, the greater weight of the evidence demonstrates that, at the time of its repair in May 2011, the NE Jetty was a functional groin. The NE Jetty, as repaired in 2011, is of substantially the same size, shape, and location as the structure depicted in aerial photographs taken in 1985, 2009, and early 2011. Although the elevation of the structure was increased over its pre-repair elevation, the increase was that reasonably necessary to prevent the function of the structure from being compromised by the effects of age and weather. The work performed on the NE Jetty, consisting of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Since 2005, and at the present time, the shoreline north of the NE Jetty has reached a state of equilibrium and stability, and is not expected to change significantly from its current condition. The preponderance of the competent, substantial evidence demonstrates that the effect of the NE Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. The sand and sediment accreted to the north of the NE Jetty since 1981 is in the range of 250 square feet. SW Jetty The aerial photographs from 19647/ demonstrate that some form of structure then existed at the location of the current SW Jetty. The structure is indistinct due to what appears to be sidecast material from a small channel in front of the property to the immediate south of the Property. By 1971, the SW Jetty had become more distinct. From that time forward, the SW Jetty, and its accompanying fillet of accreted material, appears in roughly the size and shape of the structure as it appeared immediately prior to the arrival of Hurricane Wilma. The SW Jetty was heavily impacted by Hurricane Wilma. The overwash from the storm created a substantial runout alongside the SW Jetty, and the post-storm aerials suggest that the jetty boulders were undermined and shifted from their more uniform 2003 appearance. Immediately after Hurricane Wilma, the owner of the Property commenced restoration and repair activities. As part of the activities, the SW Jetty was repaired with the addition of boulders, which were often three feet and every now and then as much as four feet across. The boulders, being irregularly shaped, could not be stacked like Legos®, so the repairs were not neatly within the precise pre-Wilma footprint. However, the repaired SW Jetty was substantially in the length and location as existed prior to Hurricane Wilma, though it may have had a slightly wider cross-section. By 2007, the work on the SW Jetty was complete, and it had assumed its present appearance with the addition of a concrete cap. Its appearance -- i.e. length, width, and location -- in 2007 and 2008 was not dissimilar from its appearance in 2003. As repaired, the SW Jetty effectively constitutes the same structure that it has been since its initial construction. From a coastal engineering perspective, the work that was performed on the SW Jetty, consisting generally of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Dr. Lin testified that between 1974 and 2011, the area to the southwest of the southwest jetty was “about equalized,” though it was “accreting a little bit.” Thus, the effect of the SW Jetty on the shoreline of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners from 1974 to 2011 was minimal and insignificant. Dr. Lin testified that, since 2011, the same area had eroded. The only substantive shoreline change that logically accounts for that subsequent erosion is the Mid-bulkhead extension, which is slated for removal under the terms of the proposed Permit. Petitioner testified that she observed no adverse effects from activities on the Property until after February 2011.8/ Since work on the SW Jetty was complete by no later than 2008, Petitioner’s testimony supports a finding that the SW Jetty has had no measurable effect on the water resources in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the SW Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. Mid-bulkhead The structure of the Mid-bulkhead first appeared as part of the sidecast material from the excavation of the navigation channel in 1964. It coalesced into a defined but smaller and more rudimentary structure in the 1971-1972 time period. At that time, it was acting as the predominant shore protection structure due to the overtopping of the NE Jetty with sediment, which also filled in the landward reaches of the Channel. By 1981, after the maintenance dredging of the Channel, the Mid-bulkhead had assumed substantially the size, shape, and location that it has currently. The Mid-bulkhead has a navigation function of protecting the landward extent of the Channel from the collapse of adjacent sand and sediment, and a shore protection and compartmentalization function. Those functions have been consistent since 1981. The Mid-bulkhead appears to have been subjected to the overwash of sand and sediment from Hurricane Wilma, though it maintained its shape and form. The outline of the Mid-bulkhead appears to be more well-defined after the initial post-Wilma repairs. In any event, the configuration and size of the Mid-bulkhead is substantially the same as it had been since 1981. At some point, the interior section of the Mid- bulkhead was topped with soil that is inconsistent with that naturally occurring in the area. That fill was confined, and brought the Mid-bulkhead to a more even grade with the rock outline, but could have had no measurable effect on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the Mid-bulkhead is minimal and insignificant. Channel In 1961, the Department of the Army authorized dredging of a navigation channel at the Property. The approved channel was to be 700 feet long, 30 feet wide, and to a depth of five feet below mean low water. The Florida Trustees of the Internal Improvement Fund issued a letter of no objection. By 1964, the Channel that is the subject of this proceeding had been dredged, though not to the 700-foot length approved. Rather, the Channel was dredged to a length of approximately 290 feet. Much, if not all of the dredge spoil was sidecast, creating a rock structure alongside the Channel. Measurements taken during the course of this proceeding demonstrate that the initial dredging resulted in near vertical side slopes, which shows that the bailing of the bedrock was accomplished to the limits. The width of the Channel is from 28 feet to 32 feet wide, which is within an acceptable tolerance of the 30-foot approved width. In 1976, the then-owner of the Property sought a permit from the DEP’s predecessor, the Department of Environmental Regulation, to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, to a depth of minus 8-feet mean high water, and to construct a new rock jetty to extend 230 feet waterward from the existing terminus of the NE Jetty. Given the mean tide range of 1.7 feet at the Property, the depth of the proposed dredging would have been minus 6.3 feet mean low water, or 1.3 feet deeper than originally approved. The permit drawings depict the existing NE Jetty, the Channel boundary, the outline of the Mid-bulkhead, and the sidecast rock structure alongside the southern side of the Channel. The permit was denied. In 1977, the owner of the property reapplied for a permit to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, and to a depth of minus 4.0 feet below mean low water nearshore to minus 6 feet below mean low water at the waterward end. The proposal to construct an extension of the NE Jetty was deleted. The permit was issued, and a severance fee for the dredged material was paid based on a projected 700 cubic yards of material removed. The permit drawings and photographs depict the existing NE Jetty, the nearshore Channel boundary, and the general outline of the Mid- bulkhead. By 1981, aerial photographs demonstrate that the maintenance dredging of the Channel was complete, the NE Jetty was in place and functioning to protect the shoreline as evidenced by the accretional fillet, and the Mid-bulkhead had assumed its approximate current shape and configuration. Although the Channel has varied in depth over the years since the maintenance dredging and Hurricane Wilma, the greater weight of the evidence, including photographic evidence, indicates that the Channel was well-defined and remained navigable during that period. The Channel is an open-water exposed channel. Water in the Channel mixes due to direct tidal flow and the sheet flow of water due to shear wind stress. As water passes over the Channel, it sets up gyre, which is a mixing process. The open- water exposed Channel is subject to a high degree of mixing, even on normal waveless conditions, because of the wind transport of water and the tidal transport of water. The Channel is not a semi-enclosed basin. A semi- enclosed basin does not receive the direct forcing functions that an open-water channel receives. A semi-enclosed basin has no direct connection to open waters, but is connected to open waters by a narrower opening. Although a semi-enclosed basin exchanges water via every tidal cycle, the flushing process is one of slow mixing, in which a little bit of water is added to and withdrawn from the larger basin through the narrow opening during each tidal cycle. In such a case, a flushing analysis may be necessary to determine how much time and how many tidal cycles it may take to effect a complete exchange of the water in the semi-enclosed basin, and thus, for example, to dilute a pollutant to an acceptable level. A flushing analysis is not needed in this case because the Channel is an open-water, openly-exposed location subject to a high degree of mixing under normal day-to-day tidal processes. There is no greater basin connected by a restricting connection as with a semi-enclosed basin. Rather, the Channel has direct exposure to the tides, along with wind shear stress moving the water. The evidence in this case is substantial and persuasive, because the Channel is highly exposed to the open water and the tides, and a well-mixed and well-flushed aquatic system, that a flushing analysis is neither required nor necessary. Dock The dock made its first obvious appearance in 1981. It appears in a consistent shape and appearance through 2011. Aerial photographs taken in 2012, after the maintenance dredging of the Channel was conducted, show the dock had been removed. At the time of the hearing, the Applicants had installed new pilings and vent boards for the replacement dock, but the decking had not been installed. Work to complete the replacement of the dock was halted due to the pendency of the litigation challenging the structures. The proposed dock is less than 500 square feet. It is proposed for non-commercial, recreational activities. It is the sole dock proposed on the Property. The proposed dock will not impede the flow of water or create a navigational hazard. Boat Ramp Since the issuance of the 2008 approval, the boat ramp site was graded and stabilized in limerock material. The concrete ramp was not completed due to the pendency of the litigation challenging the structures. However, Applicants propose to pave the ramp with concrete. Based on Mr. Clark’s observations during his site visits, the boat ramp is landward of the mean high waterline depicted on the survey. The preponderance of the evidence demonstrates that the proposed boat ramp will provide access to the Channel, which provides a minimum navigational access of two feet below mean low water to the ramp. Applicants have agreed to install depth indicators at the ramp to identify the controlling depths of the navigational access. The work on the ramp involves no seagrass beds or coral communities. The ramp as proposed will require no more than 100 cubic yards of dredging. The total width of the ramp is to be 20 feet and the ramp surface will be no wider than 12 feet. Beach Area The area between the SW Jetty and the Mid-bulkhead is an accreted beach-type area that has been confined and protected by the Mid-bulkhead and the SW Jetty. The shoreline landward of the mean high water line, from the dry beach and to the upland, is somewhat steeper than adjacent unprotected shorelines, which is indicative of the grooming of the upper beach sediment and the stability of the shoreline between the Mid-bulkhead and the SW Jetty. As a result of the Hurricane Wilma storm surge, a substantial amount of sediment was swept across the Property and into the Atlantic waters. The beach area was inundated with sand and sediment from the overwash, which appears to have moved the shoreline well waterward of its previous position. Along the northern side of the SW Jetty, a substantial channelized gully was created. The configuration of the shoreline post-Wilma suggests that efforts were made by the then-owner of the Property to fill in the gully on the northern side of the SW Jetty, and to groom and restore the shoreline by redistributing sand and sediment on the Property. It is typical, and allowable under DEP emergency final orders, for affected property owners to redistribute overwashed deposits and place them back within the beach system. In that regard, the DEP encourages the redistribution of clean beach sand back onto the beach. The then-owners of the Property were not alone in taking steps to address the effects of Hurricane Wilma on their adjacent shorelines. The photographic evidence demonstrates that Petitioners engaged in similar restorative activities, which included bringing in material purchased from a contractor to fill in a gully created on their property by the overwash. Observation of representative soil samples from the beach area demonstrate that the soils are consistent with those in the upper beach areas found throughout the area. The only areas of inconsistent soils were found in the interior of the rock structure of the Mid-bulkhead, which contained a four to six-inch layer of soil with a different consistency and darker brown color, and small area of similar soil directly adjacent thereto and well above the mean high water line. The greater weight of the competent, substantial, and credible evidence demonstrates that there was no substantial amount of “fill” from off-site placed on or adjacent to the beach area. Rather, the nature, appearance, and composition of the soils suggests that the temporary increase in the size of the beach area after Hurricane Wilma was the result of grooming and redistribution of sand and sediment pushed onto the Property and into the nearshore waters by the Hurricane Wilma storm surge. In the years since Hurricane Wilma, the influence of normal tidal and weather-driven events has returned the beach area between the mid-bulkhead and the SW jetty to roughly the configuration that existed prior to the passage of Wilma, though it remains somewhat waterward of its pre-Wilma location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the February 20, 2013, proposed Permit, as conditioned by Applicants’ December 12, 2013, Proposed Changes to the Pending Agency Action. DONE AND ENTERED this 25th day of July, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2014.
Findings Of Fact The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings; (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at 26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek; (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which evidence from the parties as well as public testimony was received. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of 9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the 96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods. Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park. Vanderipe Slough encompasses an area of approximately 500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately 2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689). DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 31 day of July, 1986. APPENDIX Rulings on Individual Petitioners' Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 30. Rejected since it is not based on competent substantial evidence. Adopted in Finding of Fact 22. Rejected since it is not based on competent substantial evidence. Rejected as irrelevant. Adopted in Finding of Fact 23. 8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Findings of Fact 18, 24, 25. Adopted in Finding of Fact 34. Adopted in Finding of Fact 27. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14. 20 Rejected since it is not based on competent substantial evidence. Rulings on Myakka's Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 3, 4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 1, 7. Adopted in Finding of Fact 7. 10-13 Adopted in Finding of Fact 19. 14-15 Rejected since they are not based on competent substantial evidence. Adopted in Finding of Fact 19. Adopted in Finding of Fact 7. 18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1. 23,24 Rejected as irrelevant and unnecessary. 25 Adopted in Finding of Fact 1. 26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33. 32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9. 37,38 Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. 51-56 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 27. Adopted in Finding of Fact 24. Rejected in Finding of Fact 2r 3. Rejected since it is not based on competent substantial evidence. 62,63 Rejected as irrelevant and unnecessary. 64 Adopted in part and rejected in part in Finding of Fact 17. 65,66 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Rejected as cumulative. Rejected as irrelevant and unnecessary. 74,75 Adopted in Finding of Fact 13. Rejected in Finding of Fact 26. Adopted in Finding of Fact 13. 78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 81 Adopted in Findings of Fact 11, 12. 82,83 Rejected as irrelevant and unnecessary. 84 Adopted in Finding of Fact-21. 85-87 Adopted in Finding of Fact 11. 88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative. 92-95 Adopted in Finding of Fact 17. 96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary. 98-99 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. 103-106 Adopted in Finding of Fact 27. Adopted in Finding of Fact 6. Adopted in Finding of Fact 27. 109,110 Rejected as irrelevant and not based on competent substantial evidence. 111 Adopted in part in Finding of Fact 17. 112-120 Adopted in Finding of Fact 27. 121-126 Rejected as unnecessary and cumulative. 127 Adopted in Finding of Fact 27. 128-130 Rejected as unnecessary. 131-168 Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 24. 172-174 Adopted in Finding of Fact 27. 176-179 Rejected as irrelevant, unnecessary, and cumulative. 180 Adopted in Finding of Fact 18. 181-184 Rejected as irrelevant, unnecessary, and cumulative. Rejected as unnecessary. Rejected in Finding of Fact 20. 187,188 Adopted in Finding of Fact 20. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. 192,193 Adopted in Finding of Fact 27. 194 Adopted in Finding of Fact 25. 195-198 Adopted in Finding of Fact 20. 199,200 Rejected as irrelevant and unnecessary. 201 Adopted in Finding of Fact 9. 202,203 Adopted in Finding of Fact 30. 204-206 Adopted in Finding of Fact 21. 207 Rejected as cumulative and unnecessary. 208-211 Adopted in Findings of Fact 21, 22, 27. 212,213 Adopted in Finding of Fact 23. 214 Rejected as irrelevant and cumulative. 215-218 Adopted in Findings of Fact 21. 22, 27. 219-223 Adopted in part in Finding of Fact 27, but otherwise rejected as unnecessary, cumulative and otherwise not based on competent substantial evidence. 224,225 Rejected as irrelevant and unnecessary. 226,227 Adopted in Finding of Fact 34. 228 Rejected as not based on competent substantial evidence. 229,230 Rejected as cumulative. 231-233 Rejected as not based on competent substantial evidence. 234,235 Adopted in Finding of Fact 28. 236 Adopted in Finding of Fact 30. 237-243 Adopted in part in Finding of Fact 28-30, but otherwise rejected as cumulative and not based on competent substantial evidence. 244-246 Rejected as cumulative and otherwise not based on competent substantial evidence. 247,248 Adopted in Finding of Fact 31. 249-259 Adopted in Findings of Fact 2-5, 32. 260-262 Adopted in Finding of Fact 32. 263 Adopted in Finding of Fact 29. 264 Adopted in Finding of Fact 32. 265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32. Adopted in Finding of Fact 25. Adopted in Finding of Fact 29. Adopted in Findings of Fact 25. 29, 32. Adopted in Finding of Fact 19. Adopted in Findings of Fact 19, 29. Adopted in Finding of Fact 29. 276,277 Adopted in Finding of Fact 25. Adopted in Finding of Fact 22. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 25. 281-283 Rejected as irrelevant and unnecessary. 284 Adopted in Finding of Fact 29. 285 Adopted in Findings of Fact 29, 32. 286 Adopted in Findings of Fact 19. 32. 287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence. 289-296 Rejected as irrelevant and unnecessary. Rulings on City's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 33. 5 Rejected as irrelevant and unnecessary. 6-11 Adopted in Finding of Fact 1. 12-14 Adopted in Finding of Fact 6. 15 Rejected as irrelevant. 16 Adopted in Finding of Fact 7. 17 Rejected as irrelevant. 18 Adopted in Findings of Fact 27, 33. 19-21 Adopted in Finding of Fact 27. 22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27. 31 Rejected as not based on competent substantial evidence. 32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6. 36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence. 45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary. 56-58 Adopted in Finding of Fact 8. 59 Rejected as irrelevant and unnecessary. 60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary. 65 Adopted in Finding of Fact 11. 66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence. 70-84 Adopted in Finding of Fact 13. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 13. 87-92 Adopted in Finding of Fact 27. Rejected as unclear. Adopted in Finding of Fact 27. 95-100 Adopted in Finding of Fact 14. 101 Rejected in Finding of Fact 14. 102-104 Adopted in Finding of Fact 14. Rejected as irrelevant. Adopted in Finding of Fact 15. Adopted in Finding of Fact 13. Adopted in Finding of Fact-16. Adopted in part and rejected in part in Finding of Fact 27. 110,111 Rejected in Finding of Fact 27. 112 Rejected as irrelevant. 113-118 Rejected in Finding of Fact 27. 119,120 Adopted substantially in Finding of Fact 11. Adopted in Finding of Fact 16. Adopted in Finding of Fact 2. Adopted in Finding of Fact 17. 124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant. 126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary. 131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary. 136-140 Rejected in Finding of Fact 17. Rejected in Findings of Fact 11, 17. Adopted in Finding of Fact 16. 143-148 Rejected in Finding of Fact 27 and otherwise unnecessary. 149 Adopted in Finding of Fact 27. 150,151 Rejected in Finding of Fact 27. Adopted in Findings of Fact 17, 18. Adopted in Finding of Fact 17. Adopted in part and rejected in part in Finding of Fact 18. 155,156 Rejected in Finding of Fact 17. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 13, 14. Rejected as irrelevant. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 26. Rejected as unnecessary and cumulative. 163-165 Rejected as not based on competent substantial evidence. 166-169 Adopted in Finding of Fact 20. 170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted in part and rejected in part in Finding of Fact 20. Adopted in Finding of Fact 23. Adopted in Finding of Fact 9. Rejected in Finding of Fact 27. 178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence. 189,190 Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 20. 193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence. 196 Adopted in Finding of Fact 9. 197-199 Adopted in Finding of Fact 21. 200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary. 207,208 Adopted in part in Finding of Fact 21. 209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 21. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 9. Rejected as cumulative and unnecessary. 222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary. 225 Rejected as unnecessary and not based on competent substantial evidence. 226 evidence. Rejected as not based on competent substantial 227,228 Rejected as irrelevant. 229-232 Adopted in Finding of Fact 3. 233 Rejected as irrelevant. 234,235 evidence. Rejected as not based on competent substantial 236 Adopted in Finding of Fact 3. 237,238 Adopted in Finding of Fact 5. 239 Adopted in Finding of Fact 3. 240-243 Rejected as irrelevant. 244-246 Adopted in Finding of Fact 31. 247-250 Adopted in Finding of Fact 4. 251 evidence. Rejected as not based on competent substantial 252,253 Adopted in Finding of Fact 5. 254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence. 256,257 Adopted in Finding of Fact 31. 258-260 Adopted in Finding of Fact 2. 261 Rejected as irrelevant. 262 Adopted in Finding of Fact 2. 263 Adopted in Finding of Fact 5. 264 Adopted in Findings of Fact 2, 11. 265-267 Rejected as irrelevant. 268 Adopted in Finding of Fact 5. 269-272 Rejected as irrelevant and unnecessary. 273,274 Adopted in Finding of Fact 31. 275-278 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 279-284 Rejected in Finding of Fact 32. Rulings on the Department's Proposed Findings of Fact. 1 Adopted in Finding of Fact 5. 2,3 Adopted in Findings of Fact 2. 3, 4. 4 Adopted in Finding of Fact 7. 5-8 Adopted in Finding of Fact 9. 9 Adopted in Finding of Fact 21. 10-12 Adopted in Finding of Fact 1. 13 Rejected as irrelevant and unnecessary. 14,15 Adopted in Finding of Fact 33. 16-23 Rejected as irrelevant and unnecessary. Rejected since this is a conclusion of law rather than a proposed finding of fact. Rejected as unclear. Adopted in Finding of Fact 14. 27-30 Adopted in Finding of Fact 13. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17. Rejected as speculative and not based on competent substantial evidence. Adopted in Finding of Fact 24. 35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11, 12. Rejected as unnecessary. Adopted in Finding of Fact 16. 47,48 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. 51,52 Adopted in Finding of Fact 17. 53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17. Rejected as unnecessary and cumulative. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. 63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. 76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22. Adopted in Finding of Fact 8. Rejected in Finding of Fact 8. Adopted in Finding of Fact 21._ Adopted in Finding of Fact 27. 87,88 Rejected as a conclusion of law rather than a proposed finding of fact. 89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary. 94 Adopted in part in Finding of Fact 21. 95,96 Adopted in part in Finding of Fact 22. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 21, 22. 99-103 Adopted in Finding of Fact 27. Adopted in Finding of Fact 22. Rejected as unclear. Adopted in Finding of Fact 22. 107,108 Adopted in Finding of Fact 27. 109 Adopted in Finding of Fact 22.. 110,111 Adopted in Finding of Fact 27. 112-114 Rejected as unnecessary and cumulative. 115-117 Adopted in Finding of Fact 11. 118 Rejected as cumulative. 119-121 Adopted in Finding of Fact 27. 122 Adopted in Finding of Fact 6. 123-136 Adopted in Finding of Fact 27. COPIES FURNISHED: Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Greg D. Sefton 5781 Old Ranch Road Sarasota, Florida 34241 Edward P. de la Parte, Jr. Attorney at Law 705 East Kennedy Boulevard Tampa, Florida 33602 Ralph A. Kehn Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241 Wyatt S. Bishop Route 1, Box 74-203 Sarasota, Florida 34241 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209 Sarasota, Florida 33577 Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development. George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW). The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area. A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation: Special Waters * * * Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91). * * * In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area. Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep. Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed. Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years. Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society. The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to 500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include: * * * An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; and An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. Additionally, Rule 17-302.700(4)(e) provides: An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion. It is undisputed that the EIS properly addressed the costs of implementation to the Department. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D) Both parties have invoked the plan amendments for their own purpose. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed. This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction. DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7) Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation. The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
