Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
The Issue The issue presented for decision herein is whether or not Respondent, Gables Engineering, is required to obtain a surface water management permit for its property known as the G-Bar-E Ranch in Okeechobee County, Florida.
Findings Of Fact Upon consideration of the witnesses and their demeanor while testifying and documentary evidence received, the following relevant facts are found: The South Florida Water Management District (District) is a public corporation of the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code as a multipurpose water management district with its principal office in West Palm Beach, Florida. Cables Engineering, Inc., owns property known as the G- Bar-E Ranch which is located in Okeechobee County, Florida. The property is located at the confluence of Otter Creek and Taylor Creek. Otter Creek flows into Taylor Creek which flows offsite into Lake Okeechobee. On August 28, 1986, the District issued an Administrative Complaint and Order which ordered Gables to obtain a surface water management permit pursuant to Chapter 373, Part IV, Florida Statutes for the surface water management system on the G-Bar-E Ranch. Gables refused and requested an administrative hearing on the Complaint and Order. Don Dillard is a Vice President of Gables and has overall responsibility for operating the Ranch. He has been employed by Gables for nine years. Gables has in its employ a ranch manager who remains on site. Until recently, Gables operated the property as a cattle ranch. A portion of its herd was sold to a former ranch manager who also remains on site. Alvin Castro is a civil engineer employed by the District as an area engineer which includes the area of Okeechobee County. Mr. Castro conducted a site inspection on the G-Bar-E Ranch on January 6, 1987. The inspection documented that there are two pond systems on the subject property and eleven hydraulic connections from the subject property to Otter Creek and Taylor Creek. One pond system, identified as pond system No. 2, is located in the mid-western area of the ranch east of Taylor Creek. It consists of three main ponds which are interconnected in a chain with hydraulic control structures and outfall ditches. The ponds were at one time natural ponds but have been deepened and improved to provide a water source for cattle and to store and convey water. A water control structure is located at the western end of each of the three ponds. The structures are aligned and installed to convey water from the upstream ponds to the downstream ponds. The control structures are culvert riser type. A culvert is a man-made conduit that conveys water to a point and allows it to flow. A riser is a half-section of a culvert or pipe welded perpendicular to the outfall culvert. Its main function is to serve as a support structure for weirs or flashboards, which regulate the upstream stages in a ditch. It allows water, as its flows over the spillway or weir, to be collected and directed to the outfall pipe or culvert. Mr. Castro observed water flowing, at the time of inspection, through all three outfall ditches to the south and westward from the pond system to a hammock area. The ponds have been cleaned of vegetation and the culverts and risers have been maintained by Respondent. One culvert riser structure conveys water from Pond 1 to Pond 2 which consist of a 96-inch riser and a 60-inch culvert, approximately 50 to 60 feet long. At the time of the inspection, water was being discharged through the control structure to an outfall ditch that connects Pond 1 to Pond 2. The outfall ditch is a man-made ditch. A second control structure connects Pond 2 to Pond 3 and interconnecting ditches consisting of a 96-inch ditch riser with a 60-inch culvert in place to hydraulically connect Ponds 2 and 3. The control structure allows water to flow underneath a private road to Pond 3. Mr. Castro observed water flowing from Pond 2 to Pond 3 at the time of his inspection. In the absence of the culvert, the pond system would run together as a large pond. The culverts alter the natural water storage capacity and drainage arrangement on the G-Bar-E Ranch. The third controlled structure is located on the southwest end of Pond It consists of a 96-inch riser on a 60-inch culvert and a sheet pile weir. At the time of his inspection, Castro observed that there was flow of water from the control structure and Pond 3 through the outfall ditch to a hammock wetland area to the southwest. (Petitioner's Exhibit 3, photos 1-6). The other pond systems, identified as pond system 1, is located in the northern portion of the property near the east bank of Taylor Creek. It consists of three main ponds ranging in size of one to five acres. One pond is connected to an outfall ditch to the southwest through a twenty-four inch culvert which runs underneath an existing grass road. At the time of Mr. Castro's inspection, it was conveying water from the pond westward into a vegetated area. The other two ponds are connected to each other via a 12-inch culvert underneath an existing grass road. The ditch is about three to five feet wide. At the time of Mr. Castro's inspection, there was flow of water between the two ponds. The downstream pond has an open connection (no control structure) to a ditch, which ultimately discharges to Taylor Creek. At the time of the inspection, water flow was observed (by Castro) in the ditch and was being discharged from pond 6 to Taylor Creek. (Petitioner's Exhibit 3, photos 11-14) The ditches in the pond system are prismatic; fairly uniform in cross section top width, depth and bottom width, with a straight alignment which indicates that they are man-made. The pond system is well-maintained by Respondent and free of vegetation. (TR, 21). There are four ditch structural connections from the G- Bar-E Ranch to Otter Creek. The easternmost structure consists of a 24-inch riser with a 15- inch culvert. It serves to convey stormwater from an upstream ditch system on the G-Bar-E property to Otter Creek and thereafter, offsite. There was flow to the structure to Otter Creek at the time of Mr. Castro's inspection. (Petitioner's Exhibit 3, photo 7). The second structure is located westward from the first. It consists of a 20-inch riser and a 13-inch culvert. (Petitioner's Exhibit 3, photo 8). The third structure is located westward from the second. It consists of a 32-inch riser and a 16-inch culvert. Discharge of water from the G-Bar-E property to Otter Creek through the third structure was observed by Mr. Castro during his inspection. (Petitioner's Exhibit 3, photo 9). The fourth structure is located westward from the third, consisting of a 36-inch riser and a 24-inch culvert. (Petitioner's Exhibit 3, photo 10). There are several manmade hydraulic connections to Taylor Creek on the G-Bar-E Ranch. On the eastbank of the Creek, the northernmost, identified as Ditch A, is a straight channel. At the time of Mr. Castro's inspection, it was discharging water from the G-Bar-E property to Taylor Creek by means of a 36- inch riser and a 30-inch culvert. The discharge served to drain the G-Bar-E property. (Petitioner's Exhibit 3, photos 15-16). The next ditch south is a prismatic channel with a straight alignment and uniform cross section, connected to Taylor Creek by a 46-inch riser and a 36-inch culvert. At the time of Mr. Castro's inspection, it was discharging water from the G-Bar E property to Taylor Creek. (Petitioner's Exhibit 3, photos 19-22). The headwaters of the ditch is a hammock wetland area at its upstream reach. (Petitioner's Exhibit 3, photos 19-22). The next ditch south is connected to Taylor Creek via a hydraulic control structure consisting of a 42-inch riser and a 30-inch culvert. The structure has at least one flashboard, which is a temporary barrier affixed to the slots on the riser and used to hold and regulate upstream water levels and to increase or decrease the storage capacity. (Petitioner's Exhibit 3, photos 24-25) The ditch drains a hammock area in the interior of the G-Bar-E property which lies to the northeast. It controls water from the upper end of the G-Bar-E property. On the westbank of Taylor Creek, the northernmost connection is an open connection to Taylor Creek. (Petitioner's Exhibit 2, sheet 1; Petitioner's Exhibit 2, photo 17). South of that connection is another ditch with an open connection to Taylor Creek. To the South is another open channel connection to Taylor Creek which has a non-functional control structure at the downstream end. (Petitioner's Exhibit 3, photo 23). The existing system of ponds and ditches on the G-Bar-E Ranch will collect, convey and can regulate upstream storage and flow rates to Taylor Creek and Otter Creek. In 1963 Gables conveyed to Okeechobee County a permanent easement along Taylor Creek. The Taylor Creek easement runs through the G-Bar-E property, roughly from the northeast corner to the southeasternmost corner. The easement to Okeechobee County covers about 150 feet on each side of Taylor Creek through the property. The purpose of the easement, as stated on the face of the document, is for the construction necessary to improve the Taylor Creek channel including widening, deepening, straightening, spoil placement and spoil disposition, installation of drip and pipe drop spillways; for operation and maintenance of the channel; and for the flowage of water through the channel, spillways, and pipe drop spillways. The grantor (Gables) reserved the right to use the easement land at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment thereof by Okeechobee County. A small portion of the ditches on the G-Bar-E Ranch which connect to Taylor Creek and the control structures in those ditches lie within the area covered by the easement granted to Okeechobee County (approximately 150 feet). However, the major portion of the ditches all lie outside the easement granted to Okeechobee County. (TR 63-64; Respondent's Exhibit 4). The ditches serve to drain the G-Bar-E property into Taylor Creek and benefit the G-Bar-E Ranch property. This use is consistent with and permitted by the county's easement. The ditches and structures serve the purpose of draining the property and facilitating the flow of water to Taylor Creek. Mr. Dillard testified that Gables Engineering has not constructed, repaired or maintained any of the ditches during his nine year tenure with the company. (TR 67). However, no evidence was presented to indicate that the ditches or structures were constructed by Okeechobee County pursuant to the easement or that they benefit Okeechobee County rather than Respondent. In 1966 and 1967, Respondent granted to Okeechobee County a permanent easement along Otter Creek and Bimeny canal, which run roughly from east to west near the northern boundary of the property. The easement is for construction necessary to improve Otter and Bimeny Creek including widening, deepening, straightening, spoil placement and disposition, installation of drop and pipe drop spillways; for operation and maintenance of the channel and the flow of water to the channel, spillways and pipe drop spillways. Gables Engineering, Inc. reserved the right to install pipe drop inlets, retain, impound and regulate the flow of water into Otter Creek and Bimeny Canal lying within the Grantor's land, provided they are installed in conformance with sound engineering practice. Respondent reserved the right to use the easement property at any time and for any purpose not inconsistent with its use by Okeechobee County. (Respondent's Exhibit 2). Four control structures lie within the easement area along Otter Creek and Bimeny Canal. A small portion of the ditches from the G-Bar-E Ranch property leading to the control structure lie within the easement area. There is no record evidence to establish that the control structure, which facilitates the flow of water to Otter Creek and Bimeny Canal, is maintained by Okeechobee County or in any way serve the purposes of the easement to Okeechobee County. It is unclear who actually constructed the structures. The structures serve to convey water from the G-Bar-E property to Otter Creek. (Petitioner's Exhibit 3, photos 7 and 9). This appears consistent with and expressly permitted by the easement granted to Okeechobee County. In 1964 Gables Engineering granted Okeechobee County a bridge and access road easement which consists of an existing graded road forty feet in width running from State Road 15 to the west boundary of Taylor Creek. The easement is for purposes in conjunction with the construction, maintenance and operation of an access road and bridge across Taylor Creek. The access road and bridge across Taylor Creek do not presently exist. The road easement crosses over a culvert between two of the ponds in pond system 2. However the pond system itself, including the outfall structure and ditch at the western end of the system, lie outside the easement. The easement also crosses a culvert in pond system 1, but the remainder of the pond system lie outside the easement. (TR 63-64). The ponds, control structures and ditches on the G-Bar- E Ranch serve to drain the property internally and to Otter Creek and Taylor Creek. One pond system drains water into a hammock area to the southwest. This system consist of three ponds with control structures between each pond and an outfall ditch at the southwestern end of the system. The other pond system drains water to wetland areas and to Taylor Creek. It consists of three ponds, control structures and outfall ditches to a wetland area and to a ditch leading to Taylor Creek. While Respondent maintains that the culverts were installed for the purpose of allowing vehicular access between the southern and northern areas of the Ranch, the credible evidence reveals that the control structures primary purpose is to drain the property and control the flow of water throughout the system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, South Florida Water Management District enter a Final Order requiring Respondent, Gables Engineering, to file an application to obtain a surface water management permit to operate works on the G Bar-E Ranch pursuant to Chapter 373, Part IV, Florida Statutes and that an initial application be submitted to obtain a surface water management permit within 30 days of the entry of the Final Order in this case. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. COPIES FURNISHED: Sarah Nall, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33402 Robert W. Stewart, Esquire Corrigan, Zelman & Bander, P.A. Rivergate Plaza, Suite 200 444 Brickell Avenue Miami, Florida 33131
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.
The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
Findings Of Fact Lake Worth Drainage District requested a variance from the provisions of Rule 17-3.121(13) , Florida Administrative Code, related to dissolved oxygen parameters which would be involved in the installation of a canal known as the S-9 Canal to be located in Palm Beach County, Florida. That request was met by the Department of Environmental Regulation's Statement of Intent to Deny, leading to a request for formal hearing filed by Petitioner with the Department on May 26, 1983. On June 1, 1983, the Department requested the Division of Administrative Hearings to conduct a formal hearing in that matter. The variance request became D.O.A.H. Case No. 83-1741. Contemporaneous with the variance request that was pending before the Department of Environmental Regulation, was petitioner's request for necessary construction permits to install the S-9 Canal. Again, the Petitioner was informed of the agency's intent to deny that permit request. As a consequence, Petitioner requested a formal hearing to question the Department's policy decision. That request for formal hearing was made on June 23, 1983. Effective July 1, 1983, the Department asked the Division of Administrative Hearings to conduct a formal hearing related to that permit request. The case related to the dredge and fill permit is D.O.A.H. Case No. 63-2132. WITNESSES AND EXHIBITS In the final hearing, petitioner presented the testimony of Richard Wheeliahn, Assistant Manager for Lake Worth Drainage District; John Adams, General Counsel for Lake Worth Drainage District; Mike Slaton, supervisory biologist with the United States Corp. of Engineers; William Winters, Lake Worth Drainage District's in-house engineer; Rebecca Serra, South Florida Water Management District's Water Management Engineer, who was accepted as an expert in water management engineering; Raleigh Griffis, Agricultural Agent with the United States Department of Agriculture, accepted as an expert in the agricultural practices found within the area of the proposed S-9 Canal; William E. Hill, Consulting Engineer for Petitioner, who was accepted as an expert in civil engineering and drainage design; and Robert D. Blackburn, consultant to Lake Worth Drainage District, accepted as an expert in freshwater ecology to include water quality and biology. Respondent called as witnesses Dan Garlick, Environmental Specialist for the Department of Environmental Regulation, accepted as expert in dredge and fill matters; Keith McCarron, Environmental Specialist for the Southeast Branch of the Department of Environmental Regulation, accepted as an expert in dredge and fill matters and Helen Setchfield, Technical Assistant to the Department's Director of the Division of Environmental Permitting. In addition, Richard L. Miller, Rebecca Butts, Francis T. Kuschell, Donald King and Dan alley were public witnesses in favor of the proposed project. Rosa Druando and Sherry Cummings were public witnesses opposed to the project. Petitioner offered 45 exhibits which have been received. Respondent introduced two exhibits which were admitted. The public offered two composite exhibits which were admitted. SPECIFIC FACTS Lake Worth Drainage District is a governmental entity created by the Florida Legislature. The District's function is that of the control of water supply and elevation related to lands within its jurisdiction. Those areas in dispute in the present case are within that jurisdictional ambit. In this instance, Lake Worth Drainage District has proposed the construction of a drainage facility involving dredging and filling of approximately 45,000 cubic yards of material. In particular, Petitioner seeks necessary permits from Respondent to construct a canal known as the S-9 Canal, whose purpose would be to transport the flow of water from an agricultural operation north of the canal site. Petitioner's Exhibit No. 1 depicts the area in question with the north- south orange tape representing an unnamed drainage ditch or canal and the blue tape showing the proposed S-9 connecting it to the east-west orange tape line which is L23W. The primary type of water expected in the canal is stormwater; however, surface and groundwater will also be in the canal system at times. The agricultural operation is capable of discharging at a rate which would utilize 145 CFS of the potential capacity of the canal system contemplated for construction which ultimate capacity is 170 CFS. The proposed canal by its connection of the existing agricultural drainage ditch or canal and L23W, becomes part of a water transport system flowing to the Atlantic Ocean through the South Florida Water Management District and Lake Worth Drainage District canal network. The principal benefit of the construction of S-9 would be to create a uniform connection of water discharge from the agricultural operation into L23W. Secondarily, it would relieve periodic flooding of a residential area west of the unnamed drainage ditch and northwest of the proposed S-9 Canal. It is not designed to receive direct water input from that residential area. Only the agricultural operation has been granted permits to discharge into the unnamed canal through two pumping stations to the east of that canal and as a result of the present permit request through S-9 and thus to L23W. Those persons living in the residential area west of the unnamed canal have not sought necessary permitting for discharge into the proposed S-9 System. Moreover, even if permits were granted to the residents, the S-9 system would only allow the addition of 25 CPS over and above the 145 which the agricultural operation has preempted. The 25 CPS would not satisfactorily address high water problems found in the residential area. A more particular description of the limited value of the project's benefit to the homeowners is that it protects against occasional flooding which occurs when the farm operation discharges into the unnamed canal, causing water incursion in the southeast corner of the residential area to the west of the unnamed canal. If the S-9 Canal is constructed, it will be built within an 80 foot right-of-way held by petitioner. The canal as depicted in petitioner's Exhibit 35 admitted into evidence is 40-45 feet wide, approximately 5-8 feet deep and is configured in a u-shape transversing an area of 7,730 feet. The applicants in this present proposal have added a vegetated iittoral zone on one side of the canal and it covers approximately 20 percent or 1.9 acres of the canal surface. This zone affords a limited amount of treatment of the water in the system. In this regard, approximately 30 percent of the nutrients found within the water flowing in the system would be expected to be taken up or absorbed in the vegetational zone, except in the months of August and September, when optimum retention time within the system will not be afforded to allow the littoral zone to uptake 30 percent of contaminants in the water. A 21 foot maintenance berm would be constructed on the east side of the canal and bleeder pipes would be installed to control water elevations in the adjacent wetlands. The 170 CFS volume mentioned before is the design capacity of the proposed system. At that volume, the flow velocity is less than 2.6 feet per second, a velocity at which the canal's structural integrity would be expected to continue, i.e., erosion will not occur. The 145 CFS expected from the agricultural operation pursuant to permits for discharge issued by the South Florida Water Management District would promote a flow velocity of approximately 2 feet per second. This farm activity is known as the DuBois farm. (Its permit from the South Florida Water Management District allowing the 145 CFS to be discharged into the unnamed drainage ditch or canal is not contingent upon the construction of S-9.) The configuration of the S-9 Canal has been brought about principally to advantage the Petitioner in obtaining a construction permit from the United States Corps of Engineers. The Corps had an interest in protecting that corridor of land over which it has jurisdiction which is adjacent to the S-9 Canal and is described as a wetland area. A consequence of this choice of design for S-9 is the typical 72 to 80 hour travel time of water introduced into the system providing some settling of pollutants and some assimilation of pollutants within the littoral zone of the canal discussed before. 10..Necessary permits have been obtained from South Florida Water Management District and the United States Corps of Engineers to allow the construction of the proposed project. The configuration of this project takes into account the special concerns of those two agencies. In this sequence of collateral permitting, South Florida Water Management District has been responsible for an examination of stormwater quality considerations in deciding to grant a permit to Petitioner. With the construction of S-9 and connection of the unnamed canal to S- 9 and thus to L23W, all the waters within that conveyance system become Class III waters of the state in keeping with Chapter 403, Florida Statutes and its associated rules of the Florida Administrative Code. In effect, this is a dredge and fill activity under the Respondent's jurisdiction found in Rule 17- 4.20, Florida Statutes. As such, it becomes a stationary installation which can reasonably be expected to be a source of water pollution of waters of the state by discharge of pollutants into waters of the state as envisioned by Section 403.087, Florida Statutes. During the construction phase of the canal, water quality degradation can be controlled related to turbidity, transparency and other criteria. Upon connection of the S-9 Canal to L23W and the utilization of that system, problems will be experienced with dissolved oxygen levels and to a lesser extent, nutrients and total coliform. Oils and greases problems are possible though not probable. No other water quality impacts are expected after connection. In expectation of the difficulty in achieving compliance with Respondent's water quality standards related to dissolved oxygen, the Petitioner has sought a variance under Section 403.021, Florida Statutes. This request is necessary because the dissolved oxygen levels in the proposed S-9 Canal, the unnamed canal or drainage ditch and L23W are not expected to uniformly exceed 5 mg/1. See Rule 17-3.121(13), Florida Administrative Code. The problem with dissolved oxygen in the unnamed canal and L23W and expected in the S-9 canal is not an enigma. This condition is prevalent in the South Florida area to include Palm Beach County, the site of the project. The water in the canals and drainage ditches in the region is frequently in violation of the standards related to dissolved oxygen, given the elevations of the land, climatic conditions, type of plant life, water temperature and constituents of the water. The addition of S-9 to the system would neither improve nor significantly degrade the quality of water related to the dissolved oxygen values for Class III waters, of which this proposed system is constituted. This finding acknowledges the fact that dissolved oxygen values in the unnamed canal are superior to L23W. Nonetheless, upon completion of S-9 and connection to the two other canals, no significant positive improvements of dissolved oxygen will be realized. Moreover, considering the fact that the installation of the S-9 Canal will stop the flooding on the southeast corner of the residential area west of the unnamed drainage ditch or canal, an increased volume of water flowing into L23W at any given moment can be expected, compared to the present outfall primarily along the Florida Power and Light system road into L23W. This has significance related to the dissolved oxygen standard to the extent of an increased volume of water in which substandard dissolved oxygen levels are found being introduced into L23W. It is more significant related to nutrients and bacteriological quality of the water, in particular fecal coliform. While there is no reason to believe that the quality of cleansing of water involved in sheet flow into L23W related to nutrients and coliforms is remarkably better at present, given the sparse vegetation along the power-line road which leads to L23W, than would be the case with S-9 with littoral zone, the increased volume of cater being introduced at the connection of S-9 and L23W during times of peak discharge, can be expected to present greater quantities of nutrients and coliform. In essence, the treatment afforded by the littoral zone and the transport in the S-9 Canal, contrasted with the treatment afforded during the transport of waters by sheet flow along the relatively barren stretch of land adjacent to the power-line road is found to be comparable, and the differences relate only to volume of discharge. This difficulty with nutrients and coliform count has been confirmed by tests made in the unnamed canal showing excessive levels of nitrogen, phosphorus and coliform and the water treatment features of the S-9 Canal will not entirely remove these materials. Although the farming practices of the DuBois operation tend to alleviate some nutrient loading in the unnamed canal, the test results established that those practices do not entirely eliminate the introduction of those nutrient materials into the canal. Consequently, some problems related to the effects of nutrient loading on populations of flora and fauna in the proposed system can be expected. In the context of the variance request, alternatives to the construction of the S-9 Canal are here considered. The alternative to leave the circumstance as it now exists carries with it the risk of periodic flooding of the southeast corner of the residential property west of the unnamed canal. That area and the balance of the residential acreage are subject to flooding without regard for the agricultural operation to the east. To deal with the difficulty related to the elevated water table, rainfall events and the flooding due to farm operation, some persons who reside in that residential tract have employed their own pump systems and ditches and retention areas to combat problems related to the geography of their property. In addition, the property is protected to some extent from outside influences by the existence of a dike and associated ditch, which limit some off-property incursion of water and assists to an extent in the transport of water away from their property. Moreover, the DuBois farm operation recently has placed a barrier at the end of the unnamed canal which directs water south along the Florida Power and Light road into L23W. In addition, the farm management has held down the pump speed during a rain event to protect the residential area. Nonetheless, at times the dike in the southeast corner adjacent to the residential property has breached in heavy rain events. As an alternative, the installation of S-9 would be only partially effective in alleviating the adverse conditions in the residential area west of the unnamed canal. It principally helps the DuBois farm operation. The relief afforded the residents would be the cessation of flooding caused by the operation of the farm pumps to the east as they breach the area in the southeast corner of the residential property, the future possibility of introducing as much as 25 CFS into the S-9 System subject to appropriate permits and the more tenuous possibility that the farm operation and the residential area could share the remaining 145 CPS capacity in the proposed system. The latter point isn't tenable from an examination of testimony at hearing. First, because the farmer wishes to conserve fertilizer and to maintain the moisture gradient and he does this by pumping off stormwater in a rainfall event, which events are most prevalent during his agricultural season. Secondly, the residential area is most in need of relief when the farmer is. Finally, the question of necessary permits to share capacity is unclear. Other alternatives related to a more comprehensive protection of the residential area by diking, a direct connection canal system to L23W from the unnamed canal, or dispersed sheet flow through the wetland area adjacent to the proposed S-9 Canal are not viable either for reason of design infirmity or impediments from other permitting agencies or inadequate property rights. Therefore, the viable choices are to either leave the property as it now stands or grant a permit to allow the construction of S-9. Between the remaining choices, no particular advantage is gained by the construction of this project. Dissolved oxygen problems in L23W, the receiving body of water, will not improve with the S-9 construction in a significant way and given the increased volume of discharge into L23W promoted by this construction are made worse. Nothing in the construction is so compelling to cause the exercise of the Respondent's discretion in favor of the grant of a variance related to dissolved oxygen values. 16..In examining the variance request by affording deference to Petitioner's regulatory responsibility, the need of the Lake Worth Drainage District to provide relief to those residents who are paying for drainage services is conceded. To that end, the proposed project does provide a certain amount of relief but it does not have as its primary emphasis purported assistance to those residents. As often stated, its principal benefit is to the DuBois farm operation. Left unresolved is the major source of suffering which is the lay of the land, a source which has prevailed from the beginning of the utilization of that property on the part of the residents. Plainly stated, much of the residential area was from the beginning and continues to be under water. The removal of the farm flooding and the future possibility of introducing a small increment of discharge into the S-9 system from the residential area subject to necessary permitting does not modify the characterization of this project as being one primarily for the farmer and to a much lesser extent for the residents. On this occasion, Petitioner's choice to fulfill its change is not persuasive enough to create special permission to violate the dissolved oxygen standard. In summary, a variance from the dissolved oxygen standard for Class III waters is not indicated. On the question of the permit application, in addition to failing to give reasonable assurances related to dissolved oxygen, the applicant has failed to satisfactorily address the problems with nutrients and coliforms. Other water quality standards have been satisfactorily addressed. Again, most of the water that will be introduced into the proposed system shall be stormwater; however, there will be other water components in the system constituted of surface water an groundwater, which also carry nutrients arid bacteriological deposits. Surface and groundwater are involved, given the level of elevations in the area, the depths of the unnamed canal, S-9 Canal and L23W and the fact that the DuBois farm operation can extract waters from the E-l Canal to the east of the farm properties as well as discharge water into that canal. It will not always be possible to distinguish whether the water in the proposed system is stormwater, groundwater or surface water. Consequently, South Florida Water Management's permitting related to stormwater is not definitive.
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500043 requested water from one (1) well. The center of withdrawal will be located at Latitude 27 degrees 40' 38" North, Longitude 82 degrees 29' 31" West in Hillsborough County. Said withdrawal is for disposal off-site. This application is for an existing use. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on May 14 and May 21, 1975 pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application, map of the premises, legal description, receipts of certified mail, copy of the Notice, and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The witness for Permittee was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes with the exception as enumerated in No. 7. Upon request of the Hearing Officer a Joint Stipulation was filed in which it was agreed that the following conditions to the permit should be attached: "1. That applicant, Carol A. Ranallo, construct two observation wells on the south side of the pit mutually agreeable locations by inserting six (6) inch casings and screens to the depth of at least fifty (50) feet. The casings to be grouted in the bore hole from the bottom of the casing to the top of the ground level. The sites of the observation wells shall be selected by James Hudson of Delta Engineering Company and G. P. Szell within 15 days after issuance of the Consumptive Use Permit. 2. That the applicant or its agents or employees submit monthly readings to the staff of the Southwest Florida Water Management District of the chloride content of the water being withdrawn from the two wells and the level of the water table as read and determined under static conditions."
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
