The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issue for consideration in these cases is whether the Southwest Florida Management District should issue to Charles Bass Water Use Permit 207025.04, which would authorize groundwater withdrawals from three wells for crop irrigation on a farm located in Hardee County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Southwest Florida Water Management District, was the state agency responsible for the management of water resources within the geographical area of 16 Florida counties which includes Hardee County, in which both properties in issue are located. The District’s authority to issue consumptive use permits for groundwater is found in Chapter 373, Florida Statutes. Petitioner, Quail Creek Farms, Inc., is a family-owned Florida corporation which incorporates approximately 2,350 acres in Hardee County, Florida. The property is used as a hunting preserve and for cattle and citrus farming. Quail Creek Farms, Inc., is located contiguous to and directly south of Respondent Bass’ property, consisting of approximately 1,380 acres, also in Hardee County. The Bass property is actually owned by Golden County Farms, Inc., in which Bass is a principal, and which directly and through tenant farming operates a vegetable farming operation thereon. Historically, Bass has grown agricultural crops, including tomatoes, on the property at least since the 1940s. Though approximately 745 acres of the property were available for crop cultivation prior to 1984, and remain available for production, it appears that prior to 1991, not all available land was in use at any one time. Farmed in a checkerboard approach, normally between 150 and 200 acres were under cultivation at any one time, with a maximum acreage in production of 240 acres. However, since 1991, annual acreage in production has increased to a present level in excess of 700 acres. Over the years, an amicable and friendly relationship between the Bass and Ward (Quail Creek) families has developed. Both properties are located in a rural area which also supports numerous similar farming operations within 10 to 20 miles of the properties. Use of the Bass property for crop farming, including tomatoes, is reasonable and consistent with land use practices in the area. Over the years, Bass has used, and continues to use, a semi-closed, seepage irrigation system to irrigate the row crops grown on the property. A semi-closed, seepage irrigation system is one which manages the water table beneath the crop root zone through a series of furrows down which water is provided periodically and as necessary to ensure the crop has sufficient moisture for its growing needs. The water is pumped by well from below ground and is thereafter channeled by pipe to the farm field for use. The water is released by spigot or valve into furrows between the raised crop rows from which it seeps into the ground to raise the water table to just below the root zone of the growing plants. The plants obtain the water from this level by capillary action. Only sufficient water to raise the water table to the proper level is released into the furrows, and to ensure against run-off, the field is surrounded by collector swales and perimeter ditches to catch and retain any excess water which might reach the farthest end of the row without seeping into the ground. A semi-closed, seepage irrigation system, as is in existence on the Bass property, should result in only a minimal run-off if the system is properly maintained and operated. Irrigation systems are not designed to be the primary source of water for crops, but are designed to provide sufficient supplemental water, above and beyond natural rainfall, to satisfy the crop water need in a two-in-ten rainfall system (the driest two years out of ten). The greater the rainfall, the less irrigation water is needed, and it is the responsibility of the farmer to turn on and shut off the water to the furrows so as to provide only the water needed by the crop. It is not to the farmer’s advantage to provide more water than is needed, for several reasons. The pumping of water is expensive due to the high cost of a power source for the pump. Also, too much water raises the water table to a level where the roots of the plant are either too shallow to support the plant in times of less rainfall, or the roots drown in the overabundance of water. The use of pumped groundwater for crop irrigation is reasonable and consistent with farming practices in the local area. Semi-closed, seepage irrigation of row crops is a common practice among row crop farmers in the area of the Bass property. The system utilized by Bass is typical of this type of system and its use is consistent with irrigation practices in the area. Mr. Bass pumps his water from three wells on the property. The permit applies to the total amount of water taken by the three existing wells. One well is an 8-inch diameter well constructed to a depth of 800 feet and cased to a depth of 400 feet. The second well is a 12-inch diameter well which is drilled to a depth of 985 feet and cased to a depth of 195 feet. The third well is a 16-inch diameter well which is drilled to a total depth of 1,500 feet and cased down to 400 feet. Whereas wells one and three draw only from the Floridan Aquifer, well two draws from both the Floridan (lower) and intermediate aquifer. Bass has had a water consumptive use permit issued by the District since 1983 based on which he has pumped water for crop irrigation. The original permit, 207025.00, issued in April 1983, authorized withdrawal from one well at an annual average rate of 253,000 gallons per day (GPD) and a maximum daily rate of 760,000 GPD. When the permit was renewed in February 1991 (207025.01), withdrawal was authorized from four wells for a combined annual average rate of 1,280,000 GPD and a combined peak monthly rate of 6,000,000 GPD. The permit was modified by letter (207025.02) to change the location of one well without changing any of the permitted quantities. In August 1994, the current permit (207250.03) authorized withdrawal from only three wells with a combined annual average of 2,950,000 GPD and a combined peak monthly rate of 7,740,000 GPD. The current permit authorizes withdrawal of water for 745 acres for each of a spring and fall tomato crop, utilizing the semi-closed seepage irrigation system for both. In 1991, Bass significantly increased the number of acres under cultivation. A District visit to the property in December 1991, revealed grading and construction activities under way. Acreage under cultivation had increased to approximately 700 acres in tomatoes planted in raised rows under plastic. Disking and ditching had taken place in and around 4.56 acres of wetlands, and a new surface water management system had been constructed on approximately 25 acres of previously uncultivated land. Water was observed being discharged from the ditches on the Bass property onto Quail Creek land, which resulted in a flooding of portions of Quail Creek, the clogging of canals, and the death of several wooded areas presumably due to excess water. In February 1992, the District issued a Compliance Notice to Bass advising him that the land readjustment activities under way constituted construction of an unpermitted surface water management system and was a violation of statute and departmental rule. On March 23, 1992, Bass questioned the District’s determination that a permit was required, but three days later, on March 26, 1992, the District issued a Notice of Violation. Adverse impacts continued to occur to Quail Creek property, allegedly due to Bass’s activities. Finally, in September 1992, Bass applied for a general construction permit from the District for a surface water management system. As a part of this system for which a permit was sought, Bass’s engineers addressed the historical farming pattern on the property and attempted to resolve several problems by incorporating into the design certain features which were supposed to slow down the runoff from the Bass farm fields. On June 29, 1993, the District and Bass entered into a Consent Order which found that 745 acres of farm fields and related surface water facilities had existed prior to October 1, 1984, and, therefore, did not require a surface water management permit for their continued use. Quail Creek was not a party to this Consent Order. In addition, however, the District found that 25 acres of farm fields and related facilities had been created after October 1, 1984, and those acres required a surface water management permit for their continued use. Bass applied for and obtained the required permit (40105.05.00) from the District on April 23, 1993. Bass was also required to pay a monetary penalty to the District. On May 24, 1994, the District transferred the surface water management permit to a permanent operation status. Bass’s WUP permit 207025.03 was due to expire on February 14, 1997, and he filed an application (207250.04) to renew it on February 13, 1997. In his application, Bass requested authority to withdraw water from his existing three wells at a combined annual average rate of 4,783,500 GPD and a combined peak monthly rate of 8,030,300 GPD for the existing semi-closed seepage irrigation of two 745-acre tomato crops, one each in the spring and the fall. The 745 acres to be used for these two crops have been determined to either not require a surface water management permit under the Consent Order or be covered under the existing surface water management permit 40105.05.00. After Bass’s application for renewal was received by the District in February 1997, as a part of the processing it was referred to a professional geologist, Mr. Balser, who, in March 1997, requested additional information. Balser’s request included a reference to a "required" Environmental Resource Permit Agricultural Rule Exemption. The use of the term "required" in reference to that element was in error as it is not required but only recommended. Nonetheless, Bass applied for the exemption on September 15, 1997. Action on the renewal application had been delayed until after the application for the exemption was filed, and the District granted the exemption on October 16, 1998. Processing of the renewal application then continued until Bass withdrew his request for the exemption on February 23, 1999. In the course of evaluation of Bass’s renewal application, the District utilized its Agricultural Water Use Calculation Model to review the reasonableness of the requested quantities, and a groundwater flow model identified as "MODFLOW" to evaluate the impacts of the proposed withdrawals under the permit. Use of this model indicated that the quantities of water requested by Bass were reasonable and needed for his proposed agricultural operation. However, there also was some possibility shown that the withdrawals might adversely impact some off-site wells. As a result, Mr. Balser suggested to Bass that the quantities of water sought under the permit be reduced. Consistent with that request, on December 9, 1997, Bass amended his renewal application so as to reduce the acreage allotment for both the spring and fall crops from 745 acres to 600 acres each planting. This resulted in a reduction in the annual average withdrawal rate by 1,053,800 GPD, and in the peak monthly rate by 1,563,000 GPD. With the receipt of this amendment in quantities requested, the District declared the application complete. Utilizing the models described, Mr. Balser determined that the amount of supplemental water requested by Bass was reasonable and consistent with the District’s permitting criteria. These findings were approved by the reviewing authority. On January 2, 1998, the District indicated its intention to issue a ten-year renewal permit to Bass authorizing withdrawals at a combined annual average rate of 3,729,700 GPD, and a combined peak monthly rate of 6,467,300 GPD for irrigation of both a spring and fall tomato crop of 600 acres each on the Bass property. Incorporated in the permit were the standard permit conditions provided for by Rule 40D-2.381(3), Florida Administrative Code, and seven special conditions tailored specifically for this permit. This proposed agency action was modified by the District on March 9, 1999, when it moved back the deadline for the Tailwater Feasibility Report called for in Special Condition 6 from May 1, 1998 to December 1, 1999, and added two other special conditions. With the exception of those modifications, the January 2, 1998, proposed agency action has not been changed. The changes in the withdrawal gallons stipulated in the permit include an increase of 779,700 GPD in the annual average rate currently permitted, but a decrease of 1,272,700 GPD in the peak monthly rate. The notice of proposed agency action was sent by certified mail to Petitioner on January 2, 1998, and received on January 5, 1998. Quail Creek filed its petition for administrative hearing with the District on January 21, 1998, sixteen days after receipt of the notice of proposed agency action. There is little doubt that Petitioner has suffered an increase in surface water problems on its property since late 1991, when Bass first increased the number of acres he had in row crop production. Petitioner claims that by that time approximately 700 acres of tomatoes were planted under plastic, and that disking and ditching had occurred around and in a 4.56- acre wetlands parcel on the Bass property. Petitioner’s investigation indicated that a new surface water management system had been constructed on 25 acres of previously unfarmed land and that water was being discharged from the Bass ditches on to Quail Creek Farms which resulted in an alteration of the area hydrology. In January 1992, Quail Creek’s president, Mr. Ward, observed extensive amounts of water flowing into Quail Creek’s canal systems as a result of super saturation of the Bass cropland. Mr. Ward is convinced this was due to increased water from irrigation which was applied to land already saturated by unusually heavy rains experienced in the area at that time. In early February 1992, following a 1.2-inch rainfall, Mr. Ward, accompanied by his foreman, Mr. Drake, toured the Quail Creek property abutting the Bass farm and noticed that the water in the Quail Roost canal system rose by two to three feet after the rain. Mr. Ward is convinced the rise in water level is a direct result of irrigation being applied to land already saturated by the rain. In March 1992, District officials viewed the property in issue and determined that surface water management construction was being undertaken by Bass, and as a result of subsequent negotiations, the technicalities regarding the permitting of this system were worked out to the satisfaction of the District. The outflow of surface water from the Bass farm onto Quail Creek did not abate however. In April 1992, measures were undertaken which were designed to curb the continued flooding by adding additional dirt to the Quail Creek dike. This did not correct the problem, however. In June 1993, photographs of the area in question revealed that large amounts of soil had been washed off the Bass property into the Quail Creek ditch near the lone 60-inch culvert at the junction with the north canal. Quail Creek also increased the size of its culverts in an effort to provide some relief from the flooding. By the end of summer in 1995, Quail Creek management again found it necessary to add more dirt to the top of its dikes in an effort to stem the water flow from the Bass property, and to dredge again the canal in an effort to stem the flow of water coming from the Bass property. As late as February 1997, it continued to dig from its canals dirt which it contends had been placed there by the flood waters coming from Bass’s property. It also added a 66-inch culvert to that already installed in an effort to control the water flow. During the period in issue, several noticeable factors have taken place on the Quail Creek property just south of its property line with Bass which may be attributed to excessive water influx. Included among these are the death of oak trees, the death of grass areas and areas of other vegetation, and the clogging of Quail Creek’s drainage system. Rule 40D-2.301, Florida Administrative Code, is the rule applied by the District in its determination of permit entitlement. This rule requires an applicant for a permit to demonstrate that the proposed water use is beneficial, is in the public interest, and will not interfere with any existing legal use of water. The applicant can demonstrate these requirements by providing the reasonable assurances outlined in subsections (a) through (n) of the cited rule section. To be sure, while the major emphasis of water use permitting relates to the effect of the withdrawal on quality and availability of water remaining for the use and enjoyment of others, consideration is also given in the Basis of Review (BOR) to the impacts of withdrawals and discharges on the surface water management system design in terms of percolation rates, storage volumes, design changes, and the like. The standards and criteria listed in the BOR are to be used to provide the reasonable assurances required by the rule. The "reasonable demand" criterion requires a showing that agricultural irrigation is necessary in an amount certain. This information is normally provided using the AGMOD, a computer program based on the Blaney-Criddle methodology, which is used to determine supplemental irrigation requirements for a particular crop, using specific soil type, rainfall, and other variables for a 2 in 10 year drought event. The quantity of supplemental irrigation needed, as estimated by AGMOD, is generally the minimum amount of water needed under drought conditions for optimal crop production, and it does not include any allowance for waste or runoff. This model, AGMOD, has been proven reliable in the field, and provides to the District a consistent approach for use in evaluating WUP requests. In the instant case, the evidence indicates the AGMOD simulation utilized was properly set up and run. Under the circumstances of this case, it is found that Bass has demonstrated, by a preponderance of the evidence, that his proposed water request will satisfy a reasonable demand, and the use of the water for crop cultivation is a reasonable use for the water. By the same token, the use and proposed method of irrigation are reasonable for the area, and the quantities estimated by AGMOD reflect the supplemental irrigation requirements of the specific crop Bass proposes to cultivate on the acreage allowed. Notwithstanding Petitioner’s contention that Bass has not shown a need for additional water and should be limited to that amount of water at the rate in his current permit, no convincing evidence to support this contention was introduced. To the contrary, it would appear that if Bass were limited to irrigation at the current rate of withdrawal, and should a 2-in-10-year drought occur, he would be able to irrigate only approximately 475 of his 600 acres. Assuming proper operation and maintenance of the system, the water from irrigation should not contribute to flooding of Quail Creek property. An applicant is also required to provide reasonable assurances that the proposed use will not cause quantity or quality changes which adversely impact water resources, including both ground and surface waters. This criteria addressed changes caused by withdrawal of water from the ground or a surface body of water and do not envision changes resulting from the subsequent use of the water, such as runoff. In other words, the question is whether Bass’s use of the water will result in a diminishment of Petitioner’s water assets. To determine this, water managers utilize MODFLOW, a groundwater flow computer model which identifies draw-down impacts caused by the proposed peak monthly withdrawal rate during a 90-day period with no effective rainfall. This computer model, developed by the United States Geological Survey, is widely accepted as a predictive tool by experts in the hydrology and hydrogeology communities, including the District. Petitioner has asserted that runoff of irrigation water from the Bass property, caused by unnecessary irrigation of property heavily covered by impenetrable plastic mulch, which is already saturated by rainfall, will cause the adverse changes to both the quality and quantity of water available to it which the rule envisions. This is, however, an interpretation of the rule which is contrary to the District’s historic interpretation and is not supported by the preponderance of the evidence. In any case, Petitioner has failed to present evidence to establish that the standing and run-off water shown in the photographs placed in evidence, and which allegedly had an adverse impact on surface water management on Quail Creek Farms, was the result of irrigation rather than the excessive rainfall experienced in the area at the time. To the contrary, the testimony of Mark Roberts, the former ranch hand, raised a serious question regarding the source of the runoff. Mr. Roberts recalls that in 1992 and 1993, when the alleged flooding of Petitioner’s property took place, the source of the flood waters was Petitioner’s property rather than that of Bass. The evidence of record indicates that the water use proposed for use under the permit application will not cause changes in either the quality or quantity of the water resources available. Results of the MODFLOW analysis done by the District in this case indicates that the draw-down of the water table at the parameters explored will be less than one foot, and an impact of this minimal magnitude is too small to cause an adverse change in either the quantity or quality of the water resource within the measurement parameters. Another factor for consideration in the evaluation of a permit application is the requirement that the applicant provide reasonable assurances that the proposed use will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources. It must be noted here that the impacts referenced in the rule in this regard are impacts resulting from the withdrawal, and not such other factors as runoff. In the evaluation of withdrawal results, MODFLOW is the tool most often used. Again, use of MODFLOW indicates that the anticipated draw-down occasioned by the anticipated withdrawals will be less than one foot. This impact is considered minimal and not likely to cause any adverse impact to the protected areas cited. Still another factor for consideration in permit application evaluation is the requirement that the applicant give reasonable assurances that the proposed use will not cause water levels or rates-of-flow to deviate from the ranges set forth in Chapter 40D-8, Florida Administrative Code. The District has not adopted water levels or rates-of-flow for those water bodies envisioned by this rule other than to establish minimum levels for some lakes within its jurisdiction. However, none of these lakes are on or near the Bass property, and this requirement is not applicable to the instant application. An applicant must also provide reasonable assurances that the proposed use will utilize the lowest water quality useable by the applicant for the intended purpose, or a lower quality water if available and useable for a portion of the intended use. Included within the "lower quality water" category is such water as recovered agricultural tailwater and collected storm water. In the instant case, the evidence shows that Bass will use the lowest quality water that is available and economically feasible for use. The majority of Bass’s water comes from the Floridan Aquifer which is of poorer quality than the intermediate aquifer under the Bass property. As to other potential sources, the evidence indicates that if the MODFLOW allotments are followed, there should be no tailwater available for use, and the use of collected storm water is neither feasible nor consistent with local agricultural practices. One of the requirements for issuance of a permit is a showing of reasonable assurances that the proposed use will not significantly induce saltwater intrusion. It is the opinion of District evaluators, and the evidence of records shows, that the property in issue is too far from a saltwater source for there to be any meaningful risk of lateral saltwater intrusion as a result of the proposed withdrawals. Further, the MODFLOW analysis suggests that the impact of groundwater withdrawal as a result of the permitted activity would be too light to cause any upcoming of saline water from a lower aquifer. Another permit requirement relates to the applicant providing reasonable assurances that the proposed use will not cause pollution of the aquifer. Information available to the District indicates there are no known contaminants in the aquifer system in the vicinity of the Bass property, and because of the rural nature of the property the existence of such plumes is unlikely. However, even were one or more to exist, MODFLOW indicates the withdrawals proposed under the permit applied for would be minimal and unlikely to cause or permit any contamination. The applicant is also required to provide reasonable assurance that the proposed water use will not adversely impact off-site land uses existing at the time of the application. Quail Creek has indicated that its property is used for cattle and citrus cultivation, and the photographic evidence presented by it would clearly indicate that the specific land receiving the off-site flow is used primarily for cattle grazing. Evidence of cattle deaths, as presented, failed to indicate that the deaths were the result of water flow over the land. In any case, the thrust of the rule deals with the result of withdrawal, not the subsequent consumptive use of the runoff onto the property. In this case, there is no evidence that the proposed water consumption by Bass which exceeds his present consumption rate will have any connection to Petitioner’s use of its land off the pumping site. The District rules also require an applicant to provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal. MODFLOW analysis clearly indicates that proposed water consumption by Bass will not adversely impact any existing withdrawals. The modeling done reveals that the proposed withdrawals will result in a draw-down in the water table outside the Bass property by less than a foot. The draw-down in the aquifer outside the Bass property will not exceed 5 feet except in the case of one area 4,900 feet to the north of the Bass property. Quail Creek Farms, which lies to the south of the Bass property should not be effected. These draw- downs are well within the parameters set forth in BOR 4.8, which holds that draw-downs in the water table of less than 2 feet, and draw-downs in the aquifer of less than five feet are presumed not to cause adverse impacts to existing legal withdrawals. However, to ensure against any off-site impact as a result of approval of the instant permit, the District has included Special Condition 2 in the proposed permit which requires Mr. Bass to investigate and mitigate impacts to existing wells located within 4,900 feet of these production wells. The District has not applied that provision of the Rule 40D-2.301(1)(j) to the instant application evaluation. It contends that the provision of BOR 4.9 which interprets that rule to require the utilization of local water resources to the maximum extent possible before considering more remote alternate sources does not apply to applications for the withdrawal of water to be used on the same property from which withdrawn. Quail Creek disagrees with the District position, and suggests that before Bass should be given permission to pump more water from the ground, he should make use of collected storm water. This suggestion is not consistent with the District’s long-term interpretation of the rule. The rule under consideration here also requires the applicant to provide reasonable assurances that his proposed use will incorporate water conservation measures. In the instant case, the evidence shows that Bass uses pipes rather than open ditches to convey the water from the well-head to the irrigation ditches. This minimizes evaporation. He also operates an on- going leak detection and maintenance program for the system. He conducts a continuing analysis of the system’s efficiency. He avoids daytime irrigation and other practices so as to minimize evaporation. He has considered and continues to consider the feasibility of converting his system to a more efficient one. He has developed an irrigation schedule designed to maximize efficiency of delivery; and he has endeavored to reduce or eliminate runoff of water both to conserve water and to protect streams. However, to ensure maximum compliance with the spirit and letter of the rule, the District has attached Special Conditions 5 and 6 to the permit. Special Condition 5 requires Bass to continue implementing best management practices, and Special Condition 6 requires him to look into the feasibility of implementing a tailwater recovery system. If the run-off to Petitioner’s property is the result of irrigation and not rainfall, and this has not been effectively shown, implementation of a tailwater recovery system should substantially reduce, if not eliminate, it. Quail Creek contends these conditions will not effectively address the problem because, it alleges, Bass has been less than forthcoming in the representations made in his application. This allegation is not effectively supported by the evidence, however. Only Mr. Piercefield, testifying for Petitioner, indicated that on his few visits to the Bass property he had not observed any best management practices implemented, nor had he seen any evidence of them in the District’s file. The witnesses' testimony is not persuasive either in content or in presentation. Another requirement of the rule in question is for the applicant to provide to the District reasonable assurances that it will incorporate reuse measures to the greatest extent practicable. BOR 4.11 has defined "reclaimed water" as treated wastewater effluent. The District has properly concluded that wastewater effluent is not currently available for use by Bass on his property and is not likely to be available in the foreseeable future. Petitioner contends, however, that the rule applies to water resources other than treated effluent, such as storm water. This interpretation is contrary to the District’s long-standing interpretation and practice, and Petitioner has not supported it with any creditable evidence of record. Accepting, arguendo, the correctness of Petitioner’s interpretation, however, there is no indication that it would be technically and/or economically feasible to utilize storm water for irrigation on the Bass property. A requirement of the review process is that the applicant provide the District with reasonable assurances that the proposed use will not cause a waste of water. Waste is defined in BOR 4.12 as causing excess water to run into a surface water system. That is exactly what Petitioner claims is happening here. However, Petitioner has not presented credible evidence to demonstrate that it is irrigation water which is running onto its property. On the other hand, the evidence indicates that the Bass water allocation is based on a properly developed and run AGMOD simulation which estimates the minimum amount of supplemental irrigation water needed. It does not provide enough water for waste or runoff. If Bass properly operates and maintains his semi-closed irrigation system, and it is to his economic advantage to do so, its use would result in only minimal runoff. In addition, the implementation of Special Condition 6, calling for a tailwater recovery system, would further preclude the run-off of any excess irrigation water and recycle it for further irrigation. In the event all this fails, or in the event of unusual and unexpected excessive rain should occur, Special Condition 7 in the permit provides recourse to Petitioner. A final requirement of the permitting rule is the need for the applicant to provide the District with reasonable assurances that the proposed use will not be otherwise harmful to the water resources of the District. Petitioner contends that Bass has not shown compliance with BOR 2.2, which holds that a permit application is not complete until the surface water management permit application required by the District is deemed complete and the impact of withdrawals on the applicant’s existing permitted surface water management system is evaluated. This requirement is not included in the permitting rule of the District, 40D-2.301(1), and the District has historically not required a showing of compliance. The District has taken the position here, however, that Bass has complied with the provision. In this case, a surface water management permit application was not required because the area of the Bass property to be used for the growing of crops was exempted from surface water management permitting by the District in 1993. In addition, the withdrawal impact was evaluated for Bass’s existing 25 acre permitted surface water management system as a part of the MODFLOW analysis, and this analysis showed that the projected withdrawal of groundwater would lower the water table by much less than one foot. The District considers this to be a minor impact and it is so found. Taken as a whole, the evidence of record indicates that Bass operates an efficient and well-maintained irrigation system which, used properly, is not likely to cause the run-off attributed to it by Petitioner. Support for this determination is seen in the fact that at the time of the worst flooding, rainfall in the area was at significant highs. This is supported by the testimony of Mr. Garrett, the hydrologist. In addition, the evidence also shows that at those times of flood, the Bass wells either were not operating at all or were operating at less than permitted production. Further, it would be economically inappropriate for Bass to flood his fields with more than necessary water because of the cost of pumping, and the resultant damage to crops.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving water use permit 207025.04 to Charles Bass as proposed. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Timothy A. Hunt, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire Charles R. Fletcher, Esquire de la Parte, Gilbert & Bales 101 East Kennedy Boulevard Suite 3400 Tampa, Florida 33602 Margaret Lytle, Esquire Tony Muntchler, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Has the applicant, Grove Isle, Ltd. provided reasonable assurances and affirmatively demonstrated that its proposed marina is clearly in the public interest and will not lower the existing ambient water quality of Biscayne Bay, a designated outstanding Florida water?
Findings Of Fact On March 13, 1978 an application was made to DER for a water quality control permit to construct a wet-slip marina on the west side of Grove Isle, formerly known as Fair Isle and Sailboat Key. The original plan for the marina, which was initially objected to by the Department of Environmental Regulation, was modified to protect a bed of seagrasses extending about 30 feet wide in a band along the west side of the island. While the plans were being modified and consultations with other government permitting agencies were in progress, the application was "deactivated" from September 27, 1978 until March 30, 1979. As a result of its investigation and review, DER on October 23, 1979, issued a letter of intent to grant the permit to Grove Isle, Inc. The permit if granted, would allow the applicant to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead. The width of the piers will be 8 feet from the bulkhead to a point 41 feet offshore, and then increased to a width of 10 feet. A sewage pump-out facility is also proposed. Attached to that letter of intent were the following conditions: Adequate control shall be taken during the construction so that turbidity levels outside a 50 foot radius of the work area do not exceed 50 J.C.U's, as per Section 24-11, of the Metropolitan Dade County Code. During construction, turbidity samples shall be collected at a mid-depth twice daily at a point 50 feet up stream and at a point 50 feet down stream from the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be submitted weekly to DER and to the Metropolitan Dade County Environmental Resources Management (MDCERM) If turbidity exceeds 50 J.C.U's beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Turbidity samples shall be collected according to condition two above, no later than one hour after the installation of the turbidity curtain. It turbidity levels do not drop below 50 J.C.U's within one hour of installation of the curtain all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No live-a-board vessels (permanent or transient) shall be docked at this facility unless direct sewage pump-out connections are provided at each live-a-board slip. A permanent pump-out station shall be installed and maintained for further removal of sewage and waste from the vessels using this facility. Compliance with this requirement will entail the applicant's contacting the Plan Review Section of MDCERM for details concerning connection to an approved disposal system. Boat traffic in the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wood piles on 6 foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the effect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one background station. Parameters shall include, but not be limited to dissolved oxygen, pH, salinity, temperature, total coliform and fecal coliform and fecal streptococci bacteria, oil and grease, biochemical oxygen demand, and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a benthic community monitoring program is to be established. Samples of the benthic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified of the results. The monitoring programs shall be reviewed and approved by DER and MDCERM prior to implementation. Monitoring reports shall be submitted to DER and MDCERM and the United States Corps of Engineers on regular basis. Warning signs shall be posted in the marina area to advise marina users that manatees frequent the area and caution should be taken to avoid collisions with them. With the foregoing conditions imposed, the Department concluded that no significant immediate or long term negative biological impact is anticipated and state water quality standards should not be violated as a result of the proposed construction. Grove Isle, Inc., has agreed to comply with all the conditions established by the DER letter of intent to grant the permit. Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510 unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle, Inc., proposes constructing the marina on concrete piles driven into the Bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can however be adequately controlled by the use of turbidity curtains during construction. The construction will not require any dredging or filling. In the immediate marina site the most significant biota are a 30 foot wide bed of seagrasses. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. While lobsters may have once frequented the area, they too are no longer present. The water depth in the area ranges from 1 foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consist primarily of turtle grass (thalassia, testudinum) with some Cuban Shoal Weed (Halodule, Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioner's members. There are already for example, approximately 50 crafts which operate from the nearby mainland or from Pelican Canal directly to the north of the island. Propeller scars take up to fifteen years to heal yet the number of scars in the Grove Isle area is insignificant and even a tripling of them from an additional 90 boats would still be de minimus. Potential damage to the seagrasses on the north side of the island will be minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that pleasure boats by their very existence and operation in the water are potential pollution sources. For instance, various maintenance chemicals such as anti-fouling bottom paint and wood cleaner have the ability, if used in sufficient quantity, to harm marine life. The fueling of engines and sewage discharge from boats are additional pollution sources. There was however, no showing that the location of up to 90 pleasure and sport fishing craft at the proposed marina site would in any way cause a degradation of water quality below the acceptable standards for Class III waters. At the present time, the marina site has adequate flushing to disburse those pollutants which may be generated by the marina operations. While a hydrographic survey was not requested by DER or provided by Grove Isle at the time the permit application was made, the testimony of Dr. Echternacht at the time of the Hearing provided adequate assurances respecting the hydrographic characteristics of the proposed site. The proposed marina will have no fueling or maintenance facilities. No live-a-board craft will be allowed at the marina. Both Mr. Wm. Cleare Filer and David A. Doheny live close to Grove Isle. Mr. Doheny's residence is on the mainland facing the proposed marina site and Mr. Filer's house is on Pelican Canal. They use the waters of Biscayne Bay around Grove Isle for recreation. If the quality of the water in the proposed marina site were lessened their substantial interest would be affected. Biscayne Bay is classified as a Class III water and is in the Biscayne Bay Aquatic Preserve. Careful considerations has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order, they are rejected as being either not supported by competent evidence or as immaterial and irrelevant to the issues determined here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested water quality control permit and certification be issued subject to the conditions contained in the Notice of Intent to Issue Permit and that the Relief requested by the Petitioners be denied and their Petitions be dismissed. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Wm. Cleare Filer 3095 Northwest 7th Street Miami, Florida 33125 Joel Jaffer 2479 Southwest 13th Street Miami, Florida 33145 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Larry S. Stewart, Esquire Frates, Floyd, Pearson, Stewart, Richmond & Greer One Biscayne Tower 25th Floor Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION BAYSHORE HOMEOWNERS ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 79-2186 79-2324 STATE OF FLORIDA, 79-2354 DEPARTMENT OF ENVIRONMENTAL REGULATION, and GROVE ISLE, LIMITED, Respondent. /
The Issue The issue presented for decision in this case is whether Respondent, the Southwest Florida Water Management District (the "District"), should issue Water Use Permit ("WUP") No. 20005687.003 to Dr. Thomas E. Kelly, pursuant to the terms of the proposed permit issued on April 11, 2001.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioner Becky Ayech is a resident of Sarasota County and a citizen of the State of Florida. The District is a water management district in the State of Florida created pursuant to Section 373.069(1)(d) and (2)(d), Florida Statutes. The District is the governmental agency charged with the responsibility and authority to review and act upon water use permit applications, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code. Dr. Thomas E. Kelly is the owner of the real property in Sarasota County on which Pop's Golf and Batting Center is located, and as such is recognized as the applicant for and holder of any WUP issued for the property. Pursuant to a 50- year lease with Dr. Kelly, Ralph Perna owns and operates Pop's Golf and Batting Center and is the person who would be responsible for day-to-day compliance with the terms of the WUP at issue. Neither Dr. Kelly nor Mr. Perna formally intervened in this proceeding. THE PROPOSED PERMIT The proposed permit is for irrigation and sanitary uses at a golf driving range and batting cage facility called Pop's Golf and Batting Center, on Fruitville Road in Sarasota County. The site leased by Mr. Perna comprises approximately 30 acres, of which the westward 15 acres is taken up by the Pop's facility. The eastern 15 acres is heavily wooded, overgrown with brush, and contains a five-acre lake. The majority of the 15 acres used by Pop's is taken up by the landing area for the driving range. Near the front of the facility are a tee box and putting green sown with Bermuda grass. This grassy area, about six-tenths of an acre, is the only part of the 30-acre property requiring irrigation, aside from some landscape plants in front of the business office. The landing area is not watered and is not even set up for irrigation. The Pop's facility is in a low-lying area historically prone to flooding. For this reason, the tee box, putting green, and business office are elevated about two and one-half feet higher than the landing area. This elevation also serves the esthetic purpose of allowing golfers to follow the flight of their drives and watch the balls land. The proposed WUP is a renewal of an existing permit. The existing permit is premised on the property's prior use for agriculture, and permits withdrawals of 34,000 gpd on an average annual basis and 99,000 gpd on a peak monthly basis. The renewal would authorize withdrawals of 1,700 gpd on an average annual basis and 4,400 gpd on a peak monthly basis, reductions of 95 percent and 96 percent, respectively. "Average annual" quantity is the total amount of water withdrawn over the course of one year. This quantity is divided by 365 to arrive at the allowable gallons per day. "Peak monthly" quantity is the amount of water allowed to be withdrawn during the driest month of the year. This quantity is divided by 30 to arrive at the allowable gallons per day. Pop's draws water from two wells on the property. A six-inch diameter well, designated District Identification No. 1 ("DID 1"), is used for irrigation of the tee box and putting green. A four-inch diameter well, designated District Identification No. 3 ("DID 3"), is used to supply water to the two restrooms at the facility. THE PERMIT CONDITIONS The proposed WUP includes the following basic information: the permittee's name and address; the permit number; the date the permit application was filed; the date the permit was issued; the expiration date of the proposed permit; the property location; the quantity of water to be permitted; the withdrawal locations; and the water use classification proposed pursuant to the District's permit application. The District's permit application provides the applicant with the following five choices regarding proposed water use: Public Supply; Industrial or Commercial; Recreation or Aesthetic; Mining or Dewatering; and Agriculture. The proposed permit in this case has been classified as Recreation or Aesthetic. The proposed WUP would allow the permittee to withdraw from DID 1 an average of 1,600 gpd, with a peak monthly withdrawal of 4,200 gpd, and to withdraw from DID 3 an average of 100 gpd, with a peak monthly withdrawal of 200 gpd. The proposed WUP contains four Special Conditions. Relevant to the issues raised in this proceeding, Special Condition No. 3 requires the permittee to incorporate best water management practices, to limit daytime irrigation to the greatest extent practicable, to implement a leak detection and repair program, to conduct a system-wide inspection of the irrigation system at least once per year, and to evaluate the feasibility of improving the efficiency of the current irrigation system. Special Condition No. 4 requires the permittee to submit a conservation plan no later than April 30, 2006. The plan must address potential on-site reuse of water and external sources of reuse water. The proposed WUP also contains 16 Standard Conditions. Standard Condition No. 2 reserves the District's right to modify or revoke the WUP following notice and a hearing, should the District determine that the permittee's use of the water is no longer reasonable and beneficial, consistent with the public interest, or if the water use interferes with an existing legal use of water. Standard Condition No. 3 provides that the permittee may not deviate from the terms of the WUP without the District's written approval. Standard Condition No. 4 provides that, if the District declares a water shortage pursuant to Chapter 40D-21, Florida Administrative Code, the District may alter, modify, or declare inactive all or any part of the proposed WUP as necessary to address the water shortage. Standard Condition No. 5 provides that the District will collect water samples from DIDs 1 and 3, or require the permittee to submit water samples to the District, if the District determines there is a potential for adverse impacts to water quality. Standard Condition No. 9 provides that the District may require the permittee to cease or reduce its withdrawals if water levels in aquifers fall below minimum levels established by the District. Standard Condition No. 11 provides that the District may establish special regulations for Water Use Caution Areas ("WUCAs"), and that the permit will be subject to such regulations upon notice and a reasonable period to come into compliance. Standard Condition No. 12 requires the permittee to install flow metering or other measuring devices to record withdrawal quantities, when the District deems it necessary to analyze impacts to the water resource or existing users. CONDITIONS FOR ISSUANCE OF PERMIT Generally, the miniscule withdrawals proposed by Pop's would not fall within the District's permitting authority, which mostly confines itself to withdrawals of 100,000 gpd or more. However, Rule 40D-2.041(1)(c), Florida Administrative Code, requires a permit for any withdrawal from a well having an outside diameter of six inches or more at the surface. DID 1 has an outside diameter of six inches. An applicant for a WUP must demonstrate that the proposed use of water is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances on both an individual and a cumulative basis that the proposed use of water satisfies the 14 specific conditions set forth in Rule 40D-2.301(1)(a)-(n), Florida Administrative Code, identified in the subheadings below. Necessary to Fulfill a Certain Reasonable Demand Pop's is open for business twelve hours per day. During the summer months, it averages 100 customers per day. The tee box and putting green at Pop's are heavily used. When golfers hit balls from the tee box, they make small gouges, or divots, in the Bermuda grass. These divots are later filled with sand, and the grass naturally grows over them. Irrigation is essential to the health of the Bermuda grass, allowing the application of fertilizer and chemicals to treat for pests and fungus. The tee box and putting green are watered as little as possible, because over-watering can itself lead to fungus problems with the Bermuda grass. The District uses an irrigation allocation computer program called AGMOD to determine reasonable average annual and peak monthly quantities for irrigation in an objective and consistent manner. Data on the pump capacity, soil type, the area to be irrigated, and its geographic location are input, and AGMOD allocates a quantity of water sufficient to irrigate for the driest 20 percent of the time, based on 75 years of historic rainfall data. The AGMOD program allows quantities for irrigation of the fairways of a typical golf course; however, Pop's does not have fairways and thus the proposed permit does not authorize any water for such irrigation. The District's expert, David Brown, credibly testified that the amounts allocated under this permit are conservative because the area to be irrigated is a high traffic area, because the irrigation methodology employed by Pop's ensures that 75 percent of the water withdrawn from DID 1 will get to the grass, because of the fertilizers and chemicals necessary to maintain and repair the grass, and because of the elevation of the area to be watered. Mr. Brown testified that the AGMOD model uses native soil types, not the fill used to elevate the tee box and putting green, and therefore the soil for the elevated areas will likely require more water and drain more quickly than AGMOD indicated. The quantities allocated for withdrawals from DID 3 on an average annual and peak monthly basis are necessary to fulfill the demand associated with the use of the two restrooms by Pop's employees and customers. In summary, the amounts of water authorized for withdrawal under the proposed permit are no more than necessary to fulfill a certain reasonable demand. Quantity/Quality Changes Adversely Impacting Resources The evidence at the hearing established that the operation of DIDs 1 and 3 pursuant to the terms of the proposed WUP will cause no quality or quantity changes adversely impacting the water resources. The proposed withdrawal amounts constitute a decrease of 95 percent on an average annual basis and of 96 percent on a peak monthly basis from the existing permit. The District reasonably presumes that decreases in permitted withdrawal amounts will not cause quantity or quality changes that will adversely impact the water resources. Nonetheless, Mr. Brown performed groundwater modeling to confirm that the District's presumption was correct in this case. The first step in model development is to study the geology at the site being studied. Mr. Brown looked at detailed information from surrounding WUPs and geographic logs to arrive at a "vertical" view of the stratigraphic column in place at Pop's, giving him an idea of which zones below Pop's produce water and which zones confine water and impede its movement between the producing units. Mr. Brown then looked to site-specific aquifer test information from other permits to give him an idea of the "horizontal" continuity of the system across the area under study. The hydrogeologic profile at Pop's contains five different aquifer production zones separated by confining units of clay or dense limestone. Moving downward from the surface, the production zones are the surficial aquifer, zones called Production Zone 2 ("PZ-2") and Production Zone 3 ("PZ- 3") within the intermediate aquifer, and the Suwannee limestone and Avon Park limestone layers within the Upper Floridan aquifer system. DID 3 has approximately 96 feet of casing and a total depth of approximately 195 feet. It draws water from PZ-2, the upper production zone of the intermediate aquifer. DID 1 was built before the District assumed regulation of well construction and consumptive water use; therefore, the District does not possess specific information as to its construction. Mr. Brown reviewed historical documents, including a 1930s report by the United States Geological Survey ("U.S.G.S.") about irrigation wells drilled in the location now occupied by Pop's. Mr. Brown's review led him to a reasonable conclusion that DID 1 has approximately 75 to 100 feet of casing and is drilled to a total depth of 600 to 700 feet below land surface. The District's water level measurements confirmed Mr. Brown's judgment, indicating that the well penetrates only through the Suwannee limestone formation in the Upper Floridan aquifer. His hydrogeological findings in place, Mr. Brown proceeded to perform a number of analyses using a five-layer groundwater model based on the "Mod-Flow EM" program developed by the U.S.G.S. to determine whether the withdrawals authorized by the proposed WUP would have any adverse impacts on water resources. The model's five layers simulated the five aquifer zones found in the area of Pop's. Mr. Brown performed simulations to predict the effect of the combined pumping of DID 1 and DID 3 at 1,700 gpd on a steady state basis and at 4,400 gpd for a period of 90 days. A "steady state" model assumes continuous pumping at the stated quantity forever. The scenario for pumping 4,400 gpd for 90 days is called a "transient" model, and simulates the effect of continuous pumping at the peak month quantity, without replenishment of the water source, for the stated period. Both the steady state and transient models used by Mr. Brown were conservative, in that it is unlikely that their scenarios would actually occur at Pop's. The modeling predicted that Pop's withdrawals would have no effect on the surficial aquifer or on the deep Avon Park limestone formation. Because DID 1 is likely to open to the PZ-2, PZ-3, and Suwannee limestone production zones, Mr. Brown analyzed the steady state and transient conditions for each zone. The greatest effect predicted by any of the modeling runs was a drawdown in water levels of approximately two-hundredths of a foot in the PZ-3 and Suwannee limestone zones. This drawdown would extend no farther than the boundary of Pop's property. All of the predicted drawdowns were smaller than the natural fluctuations in water levels caused by changes in barometric pressure. Thus, any possible effects of withdrawals at the quantities proposed in the WUP would be lost in the background noise of the natural water level fluctuations that occur in all confined aquifers. The water level or pressure within subterranean production zones is referred to as the "head." For water to move from one zone to another, there must be a difference in head between the zones. The evidence established that groundwater quality declines with depth at the Pop's site, but that the heads in the PZ-2, PZ-3, and Suwannee limestone production zones are essentially the same in that area. The similarity in heads means that there is no driving force to move water between the zones and thus no potential for adverse water quality changes caused by DID 1's being open to multiple production zones. In summary, the amounts of water authorized for withdrawal under the proposed permit will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resources Mr. Brown's model indicated there would be no drawdown from the surficial aquifer, where there would be the potential for damage to water related environmental features and/or the fish and wildlife using those features as habitat. Petitioner offered no evidence indicating that the proposed water use will cause adverse environmental impacts. Deviation from Water Levels or Rates of Flow The District has not established minimum flows or levels for the area including Pop's. Therefore, Rule 40D- 2.301(1)(d), Florida Administrative Code, is not applicable to this WUP. Utilization of Lowest Quality of Water Ninety percent of the water withdrawn from DID 1 will come from the Suwannee limestone formation and is highly mineralized and of lower quality than the water in PZ-2 or PZ- 3. DID 3 draws its water from PZ-2. As noted above, DID 3 provides water to the two restrooms on the premises of Pop's. Because its water is used in the public restrooms, DID 3 is considered a limited public supply well, the water from which must meet potable standards. Mr. Brown testified that, though PZ-2 provides water of higher quality than do the zones beneath it, that water only barely meets potable standards. Lower quality water than that obtained from PZ-2 would require extensive treatment to meet potable standards. Reuse or reclaimed water is unavailable to Pop's under any rational cost-benefit analysis. There is a reclaimed water transmission network in Sarasota County, but the nearest point of connection is more than one mile away from Pop's. The wetland lake on Pop's site is unsuitable because extensive land clearing, pipeline construction, and intensive filtration would be required to use its water. Such a project would not be technically or economically feasible for the small amount of water in question. The evidence establishes that Pop's will utilize the lowest quality water available. Saline Water Intrusion The evidence demonstrated that the proposed use will not significantly induce saline water intrusion. Saline water intrusion occurs in the Avon Park limestone formation. Withdrawals must cause a drawdown in the Avon Park formation to further induce saline water intrusion. DID 1 does not penetrate into the Avon Park formation. Mr. Brown's modeling indicated that the withdrawals allowed under the proposed WUP will not cause any drawdown in the Avon Park formation. Pollution of the Aquifer The proposed use will not cause pollution of the aquifer. As noted above, absent a difference in head or some driving force, there is no potential for water to be exchanged between the confined producing zones. Any small quantity that might be exchanged due to the pumping of the well would be removed by the same pumping. There is no potential for pollution of the aquifer by storm water moving through DID 1 or DID 3 because there is no head differential or driving force to move storm water down into the wells. The District's historic water level measurements indicated that during the rainy season, when the site is most likely to be inundated, water levels in the wells are 0.15 feet above land surface. The well structures extend at least one foot above ground level and are sealed with plates and gaskets. Adverse Impacts to Existing Off-site Land Uses The proposed use will not adversely impact off-site land uses. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider off-site impacts only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. Adverse Impacts to Existing Legal Withdrawals The proposed use will not adversely affect any existing legal withdrawals of water. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider adverse impacts to existing legal withdrawals only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. As noted above, Mr. Brown's modeling indicated that any drawdowns caused by these withdrawals are so small as to be lost within the natural fluctuations of water levels in the aquifer, even at the edge of Pop's 30-acre site. Petitioner's well is more than ten miles away from the wells at Pop's. Utilization of Local Resources to Greatest Extent Practicable The proposed use of water will use local resources to the greatest extent practicable, because the water withdrawn pursuant to the permit will be used on the property where the withdrawal occurs. Water Conservation Measures The proposed use of water incorporates water conservation measures. Pop's uses a commercial irrigation system with low volume misters, spray tips and sprinkler heads, and a rain gauge that automatically shuts down the system if one-eighth to one-quarter inch of rain falls. Mr. Perna testified that the automatic shutdown system rarely has the opportunity to work, because he manually shuts down the system if the weather forecast calls for rain. Mr. Perna testified that the typical golf range irrigates from 30 to 45 minutes per sprinkler head. Pop's irrigates roughly eight minutes per head. Overwatering can cause fungus on the Bermuda grass, giving Pop's a practical incentive to minimize irrigation. Pop's irrigates only the high traffic areas of the tee box and putting green, not the landing area. In its Basis of Review, the District has adopted a water conservation plan for golf courses located in the Eastern Tampa Bay Water Use Caution Area ("WUCA"). Basis of Review 7.2, subsection 3.2. Pop's is located in the Eastern Tampa Bay WUCA, and has implemented the items that golf courses are required to address in their conservation plans. Reuse Measures Given the small total irrigated area and the efficiency of the irrigation methods employed by Pop's, there is no realistic opportunity to capture and reuse water on the site. There is no reuse water realistically available from other sources. Thus, Pop's incorporates reuse measures to the greatest extent practicable. Waste Given the reduction in permitted quantities and the limited scope of the irrigation, the proposed use will not cause waste. Otherwise Harmful to District Resources No evidence was presented that the use of this water by Pop's will otherwise harm the water resources of the District. PETITIONER'S EVIDENCE Petitioner testified on her own behalf and presented the testimony of Ellen Richardson. Ms. Richardson testified that she had once seen a sprinkler running at Pop's during a rainfall, though she conceded that it had just begun to rain when she saw it. Ms. Richardson also testified that she had more than once seen sprinklers running at Pop's during daylight hours. However, Mr. Brown testified that some daytime irrigation is permissible under the District's watering restrictions, where heat stress and applications of fertilizers and chemicals make daytime watering necessary. These conditions applied to Pop's. Petitioner's chief concern was with her own well. Since the late 1980s, she has experienced intermittent water outages. The District has repeatedly worked with Petitioner on her well problems, and Petitioner feels frustrated at the District's inability to solve them. However, the District's evidence established that Petitioner's problems with water levels in her own well could not possibly be caused or exacerbated by the withdrawals at Pop's, ten miles away. To the extent that the renewal of this WUP will result in drastic decreases in permitted withdrawals, Petitioner's position would be improved even accepting her theory that these withdrawals have some impact on her well. In her petition, Petitioner alleged that there were disputed issues of material fact as to eight of the fourteen permitting criteria discussed above. While she engaged in spirited cross-examination of the District's witnesses, Petitioner offered no affirmative evidence showing that the any of the conditions for issuance of permits were not met. Petitioner's chief attack was that Rule 40D- 2.301(1), Florida Administrative Code, requires "reasonable assurances" that the permittee will fulfill the listed conditions, and that the applicant here could not supply "reasonable assurances" because of his long history of failure to comply with the conditions of prior permits. As evidence, Petitioner offered the District's historic record of this permit, which indeed was replete with correspondence from the District requesting records related to pumpage and water quality, and apparent silence from Dr. Kelly in reply. However, the record also explains that the failure to provide data was not the result of obduracy, but because farming had ceased on the property. When the less water intensive use of the driving range commenced approximately nine years ago, the owner ceased monitoring activities. The District, under the impression that farming was still taking place on the property, continued to request pumpage and water quality data for several years after the conversion. It appears from the record that Dr. Kelly, an absentee landlord, simply did not bother to respond. Dr. Kelly's past discourtesy does not rise to the level of calling into question the reasonable assurances provided in this permit renewal application, particularly where the lessee, Mr. Perna, has every reason to ensure that the conditions of the WUP are fulfilled. The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the permit renewal application. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why the permit renewal application should not be granted. In particular, Petitioner raised an important policy issue as to whether an applicant's history of failure to comply with permit conditions should be considered by the District in assessing the reasonableness of the applicant's assurances of future compliance. The District contended that the applicant's compliance history is irrelevant. While the District ultimately prevailed on the substantive issue, its procedural claim of irrelevance was rejected, and Petitioner was allowed to attempt to prove her contention as to Dr. Kelly's noncompliance. It is not found that Petitioner's litigation of this claim was frivolous.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order determining that Dr. Thomas E. Kelly has satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of water use permits, and that the District issue Water Use Permit No. 20005687.003 to Dr. Thomas E. Kelly. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings 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 this 27th day of November, 2001. COPIES FURNISHED: Becky Ayech 421 Verna Road Sarasota, Florida 34240 Jack R. Pepper, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether Respondent, Daniel A. Reynolds, should take corrective action and pay investigative costs for allegedly controlling, eradicating, removing, or otherwise altering aquatic vegetation on eighty-seven feet of shoreline adjacent to his property on Lake June-in-Winter (Lake June) in Highlands County, Florida, without an aquatic plant management permit.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the riparian owner of the property located at 260 Lake June Road, Lake Placid, Highlands County (County), Florida. He has owned the property since 2001 and resides there with his wife and two young children. The parcel is identified as Parcel ID Number C-25-36-29-A00-0171-0000. The southern boundary of his property, which extends around eighty-seven feet, abuts Lake June. Respondent has constructed a partially covered dock extending into the waters of Lake June, on which jet skis, a canoe, and other recreational equipment are stored. The Department is the administrative agency charged with protecting the State's water resources and administering and enforcing the provisions of Part I, Chapter 369, Florida Statutes, and the rules promulgated under Title 62 of the Florida Administrative Code. The parties have stipulated that Lake June is not wholly-owned by one person; that it was not artificially created to be used exclusively for agricultural purposes; that it is not an electrical power plant cooling pond, reservoir, or canal; and that it has a surface area greater than ten acres. As such, the parties agree that Lake June constitutes "waters" or "waters of the state" within the meaning of Florida Administrative Code Rule 62C-20.0015(23), and is not exempt from the Department's aquatic plant management permitting program under Florida Administrative Code Rule 62C-20.0035. Unless expressly exempted, a riparian owner who wishes to control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state must obtain an aquatic plant management permit from the Department. See § 369.20(7), Fla. Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is defined as "any plant, including a floating plant, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1). These plants are found not only in the water, but also along the shoreline when the water recedes below the high water mark. They provide important habitat for fish, insects, birds, frogs, and other animals. Torpedo Grass and Maidencane are two common species of aquatic plants or weeds. Applications for a permit are filed with one of the Department's regional offices. After a site inspection is made, a permit is issued as a matter of right without charge or the need for a hearing, and it is effective for a period of three years. A Department witness indicated that there are approximately 1,300 active permits at the present time, including an undisclosed number of permits for property owners on Lake June.3 It is undisputed that Respondent has never obtained a permit. A statutory exemption provides that "a riparian owner may physically or mechanically remove herbaceous aquatic plants . . . within an area delimited by up to 50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water." § 369.20(8), Fla. Stat. The exemption was established so that riparian owners could create a vegetation-free access corridor to the waterbody adjacent to their upland property. The statute makes clear that "physical or mechanical removal does not include the use of any chemicals . . . ." Id. If chemicals are used, the exemption does not apply. Under the foregoing exemption, Respondent could remove up to 43.5 feet of aquatic vegetation in front of his property on Lake June, or one-half of his eighty-seven foot shoreline. By way of background, since purchasing his property in 2001, Respondent has had a long and acrimonious relationship with his two next door neighbors, Mr. Slevins (to the west) and Mr. Krips (to the east).4 Neither neighbor uses Lake June for recreational purposes. After purchasing the property, Respondent says that Mr. Slevin began to verbally harass and threaten his family, particularly his wife. When Respondent observed the two neighbors repeatedly trespassing on his property, including the placing of an irrigation system and a garden over the boundary lines, Respondent built a fence around his lot, which engendered a circuit court action by the neighbors over the correct boundary line of the adjoining properties. Respondent says the action was resolved in his favor. According to Respondent, Mr. Slevins and Mr. Krips have filed "probably 100 to 200 different complaints on everything from barking dogs, to weeding the yard to calling DEP." Respondent also indicated that Mr. Slevins is a personal friend of the Highlands County Lakes Manager, Mr. Ford. As his title implies, Mr. Ford has the responsibility of inspecting the lakes in the County. If he believes that aquatic vegetation has been unlawfully removed or altered, he notifies the Department's South Central Field Office (Field Office) in Bartow since the County has no enforcement authority. Mr. Reynolds says that a personal and social relationship exists between Mr. Slevins and Mr. Ford, and through that relationship, Mr. Slevins encouraged Mr. Ford to file at least two complaints with the Field Office alleging that Respondent removed aquatic vegetation in Lake June without a permit. In 2002, the Department received a complaint about "aquatic plant management activity" on Respondent's property. There is no indication in the record of who filed the complaint, although Respondent suspects it was generated by Mr. Slevins. In any event, after an inspection of the property was made by the then Regional Biologist, and improper removal of vegetation noted, Respondent was sent a "standard warning letter" that asked him "to let it regrow" naturally. According to the Department's Chief of the Bureau of Invasive Plant Management, Mr. William Caton, Respondent "did not" follow this advice. In 2004, another complaint was filed, this time by the Highlands County Lakes Manager. After an inspection was made, another letter was sent to Respondent asking him to "let it regrow," to implement a revegetation plan, and to contact the Department's Regional Biologist. After receiving the letter, Respondent's wife telephoned Mr. Caton, whose office is in Tallahassee, and advised him that the complaint was the result of "a neighbor feud." Among other things, Mr. Caton advised her that the Department would not "get in the middle" of a neighbor squabble. At hearing, he disputed Mrs. Reynolds' claim that he told her to disregard the warning letter. He added that Respondent did not "follow through with" the corrective actions. As a result of another complaint being filed by the Highlands County Lakes Manager in 2006, a field inspection was conducted on July 12, 2006, by a Department Regional Biologist, Erica C. Van Horn. When she arrived, she noticed that the property was fenced and locked with a "Beware of Dog" sign. Ms. Van Horn then went to the home of Mr. Slevins, who lives next door, and was granted permission to access his property to get to the shoreline. The first thing Ms. Van Horn noticed was that the "lake abutting 260 Lake June Road was completely devoid of vegetation." She further noted that "on either side of that property [there was] lush green Torpedo Grass." Ms. Van Horn found it "very unusual" for the vegetation to stop right at the riparian line. Although she observed that there was "a small percentage of Maidencane" on the site, approximately ninety to ninety-five percent of the frontage "was free of aquatic vegetation." Finally, she noted that the dead Torpedo Grass on the east and west sides of the property was in an "[arc] shape pattern," which is very typical when someone uses a herbicide sprayer. During the course of her inspection, Ms. Van Horn took four photographs to memorialize her observations. The pictures were taken from the east and west sides of Respondent's property while standing on the Slevins and Krips' properties and have been received in evidence as Department's Exhibits 1-4. They reflect a sandy white beach with virtually no vegetation on Respondent's shoreline or in the lake, brown or dead vegetation around the property lines on each side, and thick green vegetation beginning on both the Slevins and Krips' properties. The dead grass to the east had been chopped into small pieces. During her inspection, Ms. Van Horn did not take any samples or perform field testing to determine if herbicides had been actually used since such testing is not a part of the Department's inspection protocol. This is because herbicides have a "very short half life," and they would have broken down by the time the vegetation turns brown leaving no trace of the chemicals in the water. Ms. Van Horn left her business card at the gate when she departed and assumed that Respondent would contact her. On a later undisclosed date, Respondent telephoned Ms. Van Horn, who advised him that he was out of compliance with regulations and explained a number of ways in which he could "come into compliance with these rules," such as revegetation. She says he was not interested. After her inspection was completed, Ms. Van Horn filed a report and sent the photographs to Mr. Caton for his review. Mr. Caton has twenty-seven years of experience in this area and has reviewed thousands of sites during his tenure with the Department. Based on the coloration of the vegetation right next to the green healthy vegetation on the adjoining properties, Mr. Caton concluded that the vegetation on Respondent's property had "classic herbicide impact symptoms." He further concluded that the vegetation had been chemically sprayed up to the boundary lines on each side of Respondent's property before it was cut with a device such as a weedeater. Based on the history of the property involving two earlier complaints, Respondent's failure to take corrective action, and the results of the most recent inspection, Mr. Caton recommended that an enforcement action be initiated. On August 11, 2006, Ms. Van Horn sent Respondent a letter advising him that a violation of Department rules may have occurred based upon the findings of her inspection. The letter described the unlawful activities as being "removal of aquatic vegetation from the span of the total adjacent shore line and significant over spray on to aquatic vegetation of neighboring properties on either side of [his] property." Respondent was advised to contact Ms. Van Horn "to discuss this matter." On May 15, 2007, the Department filed its Notice alleging that Respondent had "chemically controlled" the aquatic vegetation on eighty-seven feet of his shoreline in violation of Section 369.20(7), Florida Statutes, and Florida Administrative Code Rule 62C-20.002(1). The Notice sought the imposition of an administrative penalty in the amount of $3,000.00, recovery of reasonable investigative costs and expenses, and prescribed certain corrective action. On April 28, 2008, the Department filed an Amended Notice alleging that, rather than chemically removing the vegetation, Respondent had controlled, eradicated, removed, or otherwise altered the aquatic vegetation on his shoreline. The Amended Notice deleted the provision requesting the imposition of an administrative penalty, expressly sought the recovery of investigative costs and expenses of not less than $179.00, and modified the corrective action. After her initial inspection, Ms. Van Horn rode by the property in a Department boat on several occasions while conducting other inspections on Lake June and observed that the property "was still mostly devoid of vegetation." At the direction of a supervisor, on June 15, 2007, she returned to Respondent's property for the purpose of assessing whether any changes had occurred since her inspection eleven months earlier. This inspection was performed lakeside from a Department boat without actually going on the property, although she spoke with Respondent's wife who was standing on the dock. Ms. Van Horn observed that the area was still "devoid of vegetation but there was some Torpedo Grass growing back on the [eastern] side." She estimated that "much more" than fifty percent of the shoreline was free of vegetation. Photographs depicting the area on that date have been received in evidence as Department's Exhibits 5-7. Both Respondent and his wife have denied that they use any chemicals on their property, especially since their children regularly swim in the lake in front of their home. Respondent attributes the loss of vegetation mainly to constant use of the back yard, dock area, and shoreline for water-related activities, such as swimming, using jet skis, fishing, and launching and paddling a canoe. In addition, the Reynolds frequently host parties for their children and their friends, who are constantly tramping down the vegetation on the shoreline and in the water. He further pointed out that beginning with the house just beyond Mr. Krip's home, the next five houses have "no vegetation" because there are some areas on the lake that "naturally do not have any vegetation across them." Finally, he noted that Lake Juno suffered the impacts of three hurricanes in 2004, which caused a devastating effect on its vegetation. Respondent presented the testimony of Brian Proctor, a former Department aquatic preserve manager, who now performs environmental restoration as a consultant. Mr. Proctor visited the site in June 2007 and observed "full and thick" Torpedo Grass "growing in the east and west of the property lines." Based on that inspection, Mr. Proctor said he was "comfortable stating that at the time [he] did the site visit in June of '07 there was nothing that appeared to be chemical treatment on Mr. Reynold's property." He agreed, however, that the "shoreline vegetation was poor," and he acknowledged that it was unusual that Lake Juno was lush with aquatic vegetation in front of the neighboring properties to the east and west but stopped at Respondent's riparian lines. When shown the June 2006 photographs taken by Ms. Van Horn, he acknowledged that it "appeared" the property had been chemically treated. He was able to make this determination even though a soil test had not been performed. Photographs introduced into evidence as Respondent's Exhibits 1-4 reflect that on June 27, 2007, there was thick green vegetation on both sides of his property, although one photograph (Respondent's Exhibit 1) shows only limited vegetation along the shoreline and in the lake in the middle part of the property. The photographs are corroborated by a DVD recorded by Respondent on the day that Ms. Van Horn returned for a follow-up inspection. While these photographs and DVD may impact the amount of corrective action now required to restore the property to its original state, they do not contradict the findings made by Ms. Van Horn during her inspection on July 12, 2006. Finally, photographs taken in 2003 to depict what appears to be chemical spraying of vegetation and the construction of a bulkhead without a permit by Mr. Slevins have no probative value in proving or disproving the allegations at issue here. The greater weight of evidence supports a finding that it is very unlikely that heavy usage of the shoreline and adjacent waters in the lake by Respondent's family and their guests alone would cause ninety-five percent of the shoreline and lake waters to be devoid of vegetation when the inspection was made in July 2006. Assuming arguendo that this is true, Respondent was still required to get a permit since the amount of vegetation altered or removed through these activities exceeded more than fifty percent of the vegetation on the shoreline. More than likely, the vegetation was removed by a combination of factors, including recreational usage, mechanical or physical means, and the application of chemical herbicides on each riparian boundary line, as alleged in the Amended Notice. The fact that the Department did not perform any testing of the water or soil for chemicals does not invalidate its findings. Finally, the acrimonious relationship that exists between Respondent and his neighbors has no bearing on the legitimacy of the charges. Therefore, the allegations in the Amended Notice have been sustained. The parties have stipulated that if the charges are sustained, Respondent is entitled to recover reasonable costs and expenses associated with this investigation in the amount of $179.00. As corrective action, the Amended Notice requires that Respondent obtain a permit to remove Torpedo Grass from his property and to replant "126 well-rooted, nursery grown Pontederia cordata ("pickerelweed") at the locations depicted on the map" attached to the Amended Notice. Because the evidence suggests that some of the area in which vegetation was removed in 2006 had regrown by July 2007, the proposed corrective action may be subject to modification, depending on the current state of the property.
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
The Issue Whether the application of Telegraph Cypress Water Management District to modify an existing surface water management system permit should be granted.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida existing pursuant to Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is a multipurpose water management agency with principal offices in West Palm Beach, Florida. Telegraph Cypress Water Management District (TCWMD) is a water control district organized pursuant to Chapter 298, Florida Statutes. Agricultural operations have been conducted within the TCWMD for more than 30 years by the landowner, Babcock Florida Company. The TCWMD is the permittee of record. James D. English, Jr., owns, along with other members of his family, an orange grove and pasture in Lee County, Florida. The English family has owned the property for approximately 120 years. On November 10, 1992, James D. English, Jr., and the Panacea Timber Company filed a petition for formal administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. Cypress Creek Partnership is a Florida General Partnership of which James D. English, Jr., is a principal. The partnership engages in agricultural activities in Lee County, Florida. The Alva Cemetery, Inc., is a Florida not-for-profit corporation which owns and manages a cemetery facility in Lee County Florida. The cemetery has been in active use for approximately 120 years. In recent years, Alva Cemetery has experienced occasions of excess water encroaching onto the cemetery property. On November 12, 1992, Alva Cemetery, Inc., filed a petition for administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. James D. English, Jr., Cypress Creek Partnership and Alva Cemetery, Inc., are herein referred to as Petitioners. The TCWMD and the Petitioner English share a common property boundary. The Alva Cemetery is surrounded by the English property. All lands involved in this matter historically drain towards the Caloosahatchee River. The TCWMD includes approximately 89,120 acres of land located in Charlotte and Lee Counties, Florida. The land uses within the TCWMD include agricultural, cattle, and timber operations. Generally, the fields have been leased to third party farmers who use the field for several years. When the fields are not actively farmed, they are returned to a fallow state and used as pasture land until fertility is restored at which time they are reactivated for farming. Active farms fields are generally surrounded by a perimeter ditch and dike system. Pumps may be used to water and de-water the fields. When the field is returned to a fallow state, the ditch and dike system are not maintained and become less prominent either by action of weather or by intent. Pumps are not present. All of the TCWMD lies generally north to northwest of the property owned by the Petitioners. Surface waters flow onto the Petitioners' lands from the north. The Telegraph-Cypress system is unique and is the largest of its kind in South Florida Water Management District jurisdiction. The TCWMD system includes storage/detention facilities, control structures, pumping stations and an extensive network of internal canals. There are nine separate water management basins within the TCWMD. The Petitioners asserted that the water management basins identified by the District and the TCWMD are incorrect. The greater weight of the evidence establishes that the District's identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The land encompassed by the instant application for permit modification includes three of the nine basins and encompasses approximately 51,400 acres of the TCWMD. Surface water discharge from the relevant farm fields flows via the internal canal network and sheet flow to the three common detention basins: Telegraph Swamp, North Telegraph Swamp ("Telegraph North") and Curry Lake. The Telegraph North basin lies to the north of and discharges into the Telegraph Swamp basin and includes 13,799 acres of which 4,094 acres are farm fields. The drainage into the Curry Lake basin does not impact either the Telegraph North or Telegraph Swamp basins or the Petitioners' properties. The evidence establishes that as to the Telegraph North and Curry Lake drainage basins, the permit modification meets applicable permitting criteria. There is no credible evidence to the contrary. Telegraph Swamp is the largest of the three relevant detention systems. The Telegraph Swamp basin includes a total of 32,707 acres of which 4,381 acres are farm fields. Telegraph Swamp is a 4,390-acre wetland vegetated by cypress trees and sawgrass, with a base of muck soils, humus, topsoil, leaf litter and other organic material. Located at the south end of Telegraph Swamp are surface water management control structures (the Big Island Dike) built in 1975 and permitted in the original 1980 permit. The structures include three broad-crested weirs and one flash-board weir. Telegraph Swamp has been compared to a "sponge" capable of absorbing vast quantities of surface water discharges within the TCWMD before the control structures at the south end of the swamp are over-topped. Water discharged from the control structures flows through canals and creeks to the Caloosahatchee River. During storm events water is discharged over the control structures and into a swamp area south of Big Island Dike. From there, the water flows southerly, into Telegraph Creek, Big Island Canal and Cypress Creek and then into the Caloosahatchee. The Petitioners expressed concern that TCWMD could inappropriately discharge water from the control gates in the Telegraph Swamp weir. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Discharge structures in the Telegraph Swamp basin shall remain fixed so that discharge cannot be made below the control elevations, except that structure gates and weirs may only be removed during emergency conditions upon notification to and consent by the District's Fort Myers Service Center regulatory area manager or designee. The Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989, incorporated into Chapter 40E, Florida Administrative Code, provides the applicable water quantity permitting criteria relevant to this proceeding. The Petitioners assert that the control gates are required to be locked in accordance with Basis of Review section 3.2.4.1.b, which states: Discharge structures shall be fixed so that discharge cannot be made below the control elevation, except that emergency devices may be installed with secure locking devices. Either the District or an acceptable govern- mental agency will keep the keys for any such devices. The Petitioners are correct. The rule requires secure locking devices. Such condition should be added to the permit The keys may remain with the TCWMD as "an acceptable governmental agency." In 1980, the District issued Surface Water Management Permit No. 08- 00004-S for the TCWMD to operate an existing surface water management system for an existing agricultural operation. The 1980 permit specifically authorizes "[o]peration of a water management system serving 89,120 acres of agricultural lands by a vast network of internal drainage and irrigation canals, a major dike, a major canal and 4 water control structures discharging via small tributary creeks and sloughs into the Caloosahatchee River." Although the permit has been subsequently modified, the authorization to operate the system has not been amended. While District enforcement staff have occasionally noted "performance deficiencies" on the TCWMD property, there have been no permit violations by the permittee. Deficiencies which have been called to the TCWMD's attention have been resolved. Special condition number five to the 1980 permit provides that "[d]ischarges of water onto adjacent lands may be continued to the extent that increased problems are not caused by such discharges." The Petitioners assert that the District has failed to acknowledge that water discharged from the Telegraph Cypress system flows into the Cypress Creek canal and has failed to consider the impact on the Cypress Creek receiving body. However in the staff report to the 1980 permit states as follows: The Telegraph Cypress basin has three major drainage outlets. These are Trout Creek on the west, Telegraph Creek in the center and Cypress Creek to the east. There is a fourth outlet in the northeastern corner of the property known as Jack's Branch, however, this outlet is small compared to the three major ones. Much of Telegraph's southeastern area was previously drained by Spanish Creek and County Line Canal. This historical drainage pattern was blocked when a company which is presently known as Golden Grove constructed a dike across their northern boundary. This dike causes increased flow in a westerly direction around the west end of the dike, thence southerly towards Cypress Creek. This increased flow has caused excess water problems to property owners downstream. In addition, the dike has blocked virtually all flow to Spanish Creek. The evidence fails to establish that, as asserted by the Petitioners, the District has failed to acknowledge the discharge of water to Cypress Creek or to consider the condition of the Cypress Creek receiving body. In the instant case, the condition of the Cypress Creek receiving body was not re- addressed because the permit modification being sought will cause no additional adverse impacts on existing conditions. Although not individually numbered and identified in the original 1980 permit, the evidence establishes that in 1980, all of the farm fields which are subject to this permit modification application were in existence. The applicant seeks no new water control structures. Other than that required to reactivate fallow farm fields, there is no new construction proposed in the instant application. The Petitioners assert that the instant permit modification application will result in construction of new farm fields. The evidence is contrary to the assertion. Proposed permit special condition No. 10 states that the permit does not include the construction of any new farm fields. The farm fields covered in the staff report would be permitted for reactivation from a fallow state without further permitting activity in the future, and without individual retention for each farm field. The modifications to the original 1980 permit have increased the total farm land area. There is no evidence that, except as specifically permitted and approved by the District, there has been alteration of historical discharge rates or routes. There has been considerable confusion regarding the permitting status of the operations as farm fields have been reactivated. Such reactivation entails grading and leveling fields, reconstruction of ditches and dikes and installation of pumping equipment. In order to provide for standardization in farm field reactivation, and to better monitor such activities, the District requested that the TCWMD seek to modify the existing permit. On February 8, 1991, the TCWMD submitted an application to modify the existing permit for the purpose of reactivating the existing farm fields located within the Telegraph North, Telegraph Swamp, and Curry Lake drainage basins. The proposed SWM permit modification authorizes the continued use of the previously permitted surface water management system for existing active and fallow farm fields and allows the reactivation of currently fallow farm fields without further permit modification by the District. Proposed SWM permit special condition No. 16 states that the District requires notification in letter form 30 days prior to all farm field reactivation activities. The proposed modification of the permit will provide the District with an enhanced ability to inspect the reactivated farm fields. Inherent in such reactivation is ditching and diking of the fields. Such operations have been authorized since the 1980 permit was issued. The work associated with field reactivation will be conducted in accordance with existing design criteria as set forth in the application. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Ditches and dikes associated with the farm fields encompassed by this authorization shall be constructed/maintained in conformance with the "Typical Field Layout And Detail Sheet," revised 10/12/93. The evidence establishes that the operations of the TCWMD as proposed by the permit modification application are within the authorization of the existing permit as previously modified. Otherwise stated, the award of this modification will have no substantial impact on the operation of the permitted surface water management system. The modification will result in no additional discharge of surface water from the control structures. The District has established water quantity criteria intended to insure that adverse impacts do not occur due to excess discharge. (Based upon the Hearing Officer's ruling on a District's Motion in Limine, water quality issues were not addressed at hearing.) The criteria are set forth at Chapter 40E-4.301, Florida Administrative Code, and in the Basis of Review. In relevant part, the District criteria require an applicant to provide reasonable assurances that the surface water management system provides adequate flood drainage and protection, that the system will not cause adverse water quantity impacts on receiving waters and adjacent lands, and that the system will not cause adverse impacts on surface and groundwater levels and flows. Modification of a permit must not result in additional adverse off-site impacts. In this case, reasonable assurances have been provided that the proposed modification will not exacerbate the historical and current drainage conditions. The permit modification application at issue does not propose to alter the rates or routes of water currently authorized for discharge from Telegraph Swamp. Reactivation of the farm fields will not impact receiving bodies in any manner different from that which presently exists under previous permits. In providing reasonable assurances, the TCWMD analyzed the water storage capacity available in the detention basins, performed flood routing projections and calculated peak discharge rates for the permit area. As required by the district, the TCWMD utilized a standard hypothetical 25-year/3- day storm event in order to determine whether sufficient capacity was available to handle the resulting stormwater. The projections provide reasonable assurances that the common detention areas have the capacity to provide adequate flood drainage and protection and are accepted. Rule 40E-4.091(1)(a), Florida Administrative Code, incorporates by reference a document identified as the "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989" Section 3.2.1.2.b requires that: the proposed project modification must meet the allowable discharge rate; and the allowable discharge rate for a previously permitted project is that which was set in the previous permit. The TCWMD prepared and submitted discharge calculations establishing that the post-development discharges will not exceed the discharge rate previously accepted by the District. Since 1984, the District has previously accepted a peak allowable discharge rate of 39 cubic feet per second per square mile (csm). The csm figure is based upon the historical TCWMD discharge rate within the Caloosahatchee River basin. As previously stated, reactivation of the farm fields will not impact the receiving bodies in any manner different from that which presently exists under previous permits. The District asserts that the 39csm discharge rate has been "permitted" since the 1984 modification was approved. The Petitioner asserts that the 39csm discharge rate has never been "permitted" by the District. The evidence establishes that since the 1984 application for permit modification, the discharge rate of 39csm has been utilized by TCWMD and has been accepted by the District, but that the actual permits do not specifically identify the discharge rate as 39csm. In projecting discharge rates, the TCWMD used a time of concentration of one hour. The time of concentration (T.O.C.) is the time in which water would move from the farm fields to the control structure in each sub-watershed. Otherwise stated, a projected T.O.C. of one hour means that the storm water would move from the field to the control structure in one hour. The T.O.C. of one hour is a conservative estimate and likely substantially overestimates the speed at which the water will move. The three basin areas contain a total of more than 80 square miles. Water will travel an average distance of two miles from field to detention basin through ditches, swales and existing low areas. Again conservatively, the TCWMD did not include projected travel time through such conveyances, resulting in a longer T.O.C. and resulting in a higher peak discharge rate than is probable. Although there appeared to be some confusion on the part of the District staff as to the application of the T.O.C. by the TCWMD, the TCWMD engineer who performed the calculation testified at hearing and was qualified as an expert witness in civil engineering, hydrology and surface water management. His testimony and projections are reasonable and are credited. Proposed SWM permit modification special condition No. 11 states that farm field discharge shall be directed to and conveyed via existing ditches, wetlands and/or sheetflow areas per existing site conditions. No new outfall ditches are permitted under this modification. Flood routings were calculated assuming all farm fields would be activated simultaneously and pumping the maximum capacity of 390 gallons per minute per acre (the equivalent of 20-21 inches of surface water pumped from each field daily). It is highly unlikely that all farm fields would be active simultaneously or that stormwater would continue to fall with such velocity to permit continued pumping at maximum capacity for an extended period. Even based on the conservative assumptions utilized by the TCWMD engineers, the projected peak discharge rate at the Telegraph Swamp control structure is 37csm to 38.5csm, within the maximum of 39csm previously accepted by the District. The computer modeling performed by the TCWMD engineer in calculating the peak discharge rate is accepted as reasonable. The TCWMD did not include offsite inflow in its analysis of projected capacity or discharge rates. There is anecdotal evidence that on occasion, water may flow into TCWMD from Jack's Branch or from across roadways to the north and west of the TCWMD; however, given the vast storage capacity of the TCWMD detention areas, there is no evidence that the quantity of offsite inflows is of such significance as to render the TCWMD projections unreasonable. As previously stated, the TCWMD calculations are reasonable and are accepted. The evidence establishes that the peak discharge rate resulting from approval of the instant permit modification will not exceed 39csm. The Petitioners offered their own peak discharge rate calculations, based on a "worst possible case scenario." The assumptions on which the Petitioners' projections are based are unreasonable and are rejected. Based on recommendations received at the hearing, the permit modification should include the following special condition: Pumped discharge from farm fields for which pumps are not currently installed shall be limited to 75 gallons per minute per acre of farmed area. Pumps are currently installed in fields number 7, 8, 9, 10, 12, 14, 15, 24 north and south, 28, east half of 34, 64, 67, 68, 69 and 80. The Petitioners assert that the system is currently causing adverse impacts to their properties in the form of flooding. The greater weight of the evidence establishes that the system presently does not cause adverse water quantity impacts on receiving waters and adjacent lands, and does not cause adverse impacts on surface and groundwater levels and flows. The evidence establishes that award of the application for permit modification will not adversely alter the current operations. It is clear that the Petitioners have been impacted by changes in the historical drainage patterns in the area; however, such changes had substantially occurred by 1980 when the original permit was issued. The greater weight of the credited evidence establishes that such impacts are not the result of the activities authorized in the original 1980 permit and in subsequent modifications, but instead are the result of unrelated actions by third parties not involved in this administrative proceeding. There is no credible evidence that the permit modification sought in the instant proceeding will adversely affect the Petitioners. The 1980 permit addresses existing water quantity problems in the area of the TCWMD project. For example, the construction of the Golden Grove Dike resulted in blockage of historical drainage towards Spanish Creek and the diversion of excess waters into Cypress Creek. During the 1980's the District required that culverts be installed in the Golden Grove Dike which eventually restored some surface water flow through the dike construction and on towards the south, although during some storm events water flow continues around the dike and into Cypress Creek. The Petitioners offered anecdotal evidence as to reduced water flows in some local creeks and increased flows thorough Cypress Creek. The Respondent offered evidence indicating that water flow through Cypress Creek may be less than 30 years ago, due to the digging of a canal between Spanish Creek and Cow Slough and the extension of the Clay Gully Canal's diversion of water into Telegraph Swamp. None of the evidence on this point was persuasive, however it is not relevant. Clearly, the instant permit modification application will not adversely affect the existing situation in the receiving bodies. The Petitioners assert that other receiving waterways have become clogged with vegetation, debris or soil, have accordingly reduced capacities, and are unable to accommodate historical discharge levels. Based on the lack of capacity, the Petitioners suggest that waters move towards the eastern portion of Telegraph Swamp and are discharged, flow towards, into and over the banks of Cypress Creek, and flood their properties. The TCWMD conducted a study of backwater profiles based upon credited field data. The study is found to be reasonable and is credited. Based upon the study, approximately 90 per cent of the water discharged from Telegraph Swamp is conveyed to the Caloosahatchee via Big Island Canal, Telegraph Creek and the swamp area south of the control structure. The remaining 10 per cent of the water enters the Bullhead Strand-Lightered Canal-Cypress Creek watercourse. Water flows from Telegraph Swamp into Cypress Creek via Bullhead Strand and the South Lightered Canal, however, the canal has become so restricted by vegetation that it provides little direct water flow between the strand and the creek and is more properly regarded as an area of enhanced sheet flow. The evidence does not establish that the surface water traveling from Bullhead Strand to Cypress Creek is of significance. Coupled with the existence of the Big Island Canal (which connects Telegraph Swamp to Telegraph Creek) it is unlikely that post-development surface water discharged from the Telegraph Swamp into Cypress Creek exceeds pre-development discharges. The Petitioners claim that two culverts in the Big Island canal restrict the flow of water through the canal and result in increased discharge to the east and to Cypress Creek. The greater weight of the evidence establishes that during period of time when the culverts are unable to accommodate water flow, the water travels into a broad flood plain, around the culverts and returns to the Big Island Canal. The evidence establishes that the proposed modification will not result in additional adverse off-site impacts. The adverse conditions affecting Cypress Creek existed at the time of the 1980 permit and are addressed in the staff report to that permit and to subsequent permit modifications. There is no credible evidence that modification of the permit as sought in this case will result in adverse impacts beyond those which have existed at the time of the award of the original permit. The Petitioners assert that the fields included within the permit modification application lack individual retention areas. The lack of individual detention areas is immaterial in this case where sufficient downstream detention capacity is available through the common detention areas. The Petitioners asserts that the Telegraph Swamp is an "above-ground impoundment" and that as such is fails to comply with requirements related to such water storage systems. The Telegraph Swamp is not a typical "above-ground impoundment" as that term is routinely applied by the District. The regulations addressed by the Petitioners clearly state that they are not intended to be inclusive and are intended to provide guidelines and basic performance criteria for commonly encountered south Florida situations. Telegraph Swamp is not a commonly encountered south Florida situation. There is no evidence that the decision not to apply the "above-ground impoundment" regulations to the Telegraph Swamp is unreasonable. The Petitioner suggest that the TCWMD application for permit modification is deficient and fails to provide information in compliance with the Basis of Review. The Basis of Review is directed towards applications for new construction. The District reasonably does not interpret the all elements of the Basis of Review to apply to existing operations. The original staff report for this permit modification application fails to acknowledge that Cypress Creek is a receiving body. However, as stated previously, the 1980 application and subsequent modifications have clearly addressed the fact that Telegraph Swamp waters discharge to Cypress Creek via intervening waterways. The failure to include the reference in the staff report to this application for modification is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order issuing Surface Water Management Permit Modification No. 08-00004-S including the additional permit conditions set forth herein, to the Telegraph Cypress Water Management District. DONE and RECOMMENDED this 1st day of April, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASES NO. 92-6900 and 92-6901 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners James D. English and Cypress Creek Partnership The proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership consist of unnumbered paragraphs. Pages forty-five through fifty-nine of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership were stricken as set forth in the Order On Motion To Strike issued March 29, 1994. The paragraphs of pages five through forty-four of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership have been consecutively numbered and are accepted as modified and incorporated in the Recommended Order except as follows: 1-2. Rejected, argument, not findings of fact. 7-9. Rejected, argument, not findings of fact. The staff report is not dispositive. 10-12. Rejected. The greater weight of the evidence establishes that, although the 39csm figure is not set forth in the permit, as of the 1984 modification, the TCWMD calculations have been based on a peak discharge rate of 39csm and that the District has accepted the calculations previously. The applicable criteria in the instant case require that the allowable discharge rate for a previously permitted project is that which was set in the previous permit. 13. Rejected, recitation of testimony is not finding of fact. 15-16. Rejected, argument, not finding of fact, irrelevant, cumulative. 17-18. Rejected, recitation of testimony is not finding of fact. 19. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that 39csm has been the peak discharge rate accepted by the District since 1984. The flow rate projected by the TCWMD does not exceed the accepted peak discharge rate. 24. Rejected, recitation of testimony is not finding of fact. 26-28. Rejected, recitation of testimony is not finding of fact. 29-30. Rejected, argument, not finding of fact. Rejected, irrelevant. Rejected, argument, not finding of fact. Rejected, irrelevant. The greater weight of the credible and persuasive evidence establishes that 39csm has been the District's accepted peak discharge rate and that this modification will not result in peak discharge rates in excess of that which has been previously accepted. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, unnecessary. 36-45. Rejected, irrelevant. The anecdotal evidence fails to establish that offsite inflows are of such quantity as to render the TCWMD projections unreasonable. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 46-52. Rejected, contrary to the greater weight of credible and persuasive evidence. The evidence fails to establishes that the swamp is an "above-ground impoundment" as that term is routinely applied by the District. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 53-67. Rejected, irrelevant. An applicant for a permit modification is not required to supply every item on the checklist. An application for a modification to an existing permit often need not contain all the items described. 69. Rejected, cumulative. 70-71. Rejected, argument, not finding of fact. 72-81. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 82. Rejected, subordinate. 83-85. Rejected, irrelevant. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. This proceeding is not a review of preliminary staff activity. The applicant must establish entitlement to the permit at the hearing. 86-87. Rejected, recitation of testimony is not finding of fact. Rejected. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. Rejected, unnecessary. Rejected, recitation of testimony is not finding of fact. 91-94. Rejected, irrelevant, the discharge projections calculated by the TCWMD as explicated at the hearing are credited. In any event, the evidence establishes that this modification will result in no additional discharge of surface water from the control structures. 95-97. Rejected, irrelevant. The evidence establishes that this modification will result in no additional discharge of surface water from the control structures. Petitioner Alva Cemetery Petitioner Alva Cemetery's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, not supported by the greater weight of credible and persuasive evidence. 4-5. Rejected, irrelevant. Rejected, irrelevant. This is a de novo hearing, not a review of preliminary staff work. The evidence at hearing establishes that the permit modification will not cause additional adverse affect on existing receiving bodies. Rejected, irrelevant. The evidence fails to establish that Hall Creek and Fichter Creek are receiving bodies of such capacity that their omission from staff report is material. Rejected, irrelevant. Rejected, irrelevant. The evidence fails to establish that offsite inflows are of such quantity as to be relevant. 11. Rejected, not supported by the greater weight of credible and persuasive evidence. The Applicant's analysis is credited. As to T.O.C., even the less conservative T.O.C. projections indicate a peak discharge rate within that previously accepted by the District. 12-13. Rejected, irrelevant. Rejected, irrelevant. Such return overflows are unnecessary in this situation where the detention areas have the capacity to provide adequate flood drainage and protection. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 18-20. Rejected, cumulative. 21. Rejected, immaterial. There is no evidence that this permit modification application will cause additional adverse impact on receiving bodies. The failure to address nonexistent impacts is immaterial. Rejected, errors in staff report are irrelevant. The evidence admitted at hearing is accepted as correct. First paragraph is rejected, cumulative. Second paragraph is rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, anecdotal testimony is not supported by the greater weight of credible and persuasive evidence. Rejected. The greater weight of credible and persuasive evidence establishes that all farm fields affected by this permit modification application were in existence by the 1980 permit. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, irrelevant. The greater weight of credible and persuasive evidence fails to establish that the cemetery flooding is related to actions by the TCWMD. Further, the evidence fails to establish that, even if the flooding was related to the TCWMD, the instant permit modification application will cause additional adverse impacts. Respondent Telegraph Cypress Water Management District Respondent Telegraph Cypress Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected, subordinate. 19-20. Rejected, not credited and unnecessary. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Rejected, cumulative. Rejected, unnecessary. Respondent South Florida Water Management District Respondent South Florida Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 30. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Pages 17-19 of the Proposed Recommended Order set forth revisions to the staff report which originally form the basis for the preliminary agency action in this matter. As the hearing is a de novo review of this matter, it is unnecessary for this Recommended Order to address the revision of the staff report, which has limited probative value. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Melville G. Brinson, Esquire 1415 Hendry Street Fort Myers, Florida 33902 Frank A. Pavese, Sr. Esquire 1833 Hendry Street Fort Myers, Florida 33902 Scott Barker, Esquire Post Office Box 159 Fort Myers, Florida 33902 John J. Fumero, Esquire Toni M. Leidy, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416
Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
The Issue There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Findings Of Fact Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction. The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed. Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application. Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing. The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to 30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island. While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush (Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation. Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983. A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code. In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site. Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains. Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence. In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
