The Issue The issue is whether the Southwest Florida Water Management District's (District's) proposed construction of a temporary floating weed barrier across the mouth of the canal exiting to the southwest side of Lake Hancock in Polk County, Florida, is exempt from regulatory review under Section 373.406(6), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This proceeding involves a request by the District for authorization to construct a temporary floating weed barrier across the mouth of the canal exiting the southwest side of the Lake in Polk County, Florida (County). After reviewing the request, and based on its determination that the project would "have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the State," on September 27, 2002, the Department concluded that the project qualified for an exemption from regulatory review under Section 373.406(6), Florida Statutes. The Department also authorized the District to use state-owned submerged lands, if applicable, for the construction of the project, and it found that the project was in compliance with the SPGP program and thus required no further permitting from the United States Army Corps of Engineers (Corps of Engineers). Even if the Department had not considered the project to be exempt, it concluded that it had sufficient information and assurances from the District to grant a Noticed General Environmental Resource Permit (ERP) authorizing the requested activity. On December 2, 2002, Petitioner, Bruce Lahey, who has resided and owned property on the southwest side of the Lake for 15 years and regularly uses the Lake for fishing and recreational purposes, filed a Petition for Administrative Hearing (Petition) challenging the proposed agency action. In his Petition, as later clarified and narrowed in the parties' Joint Pre-Hearing Stipulation, Mr. Lahey contends that a weed barrier is no longer necessary since there has not been a weed problem in the Lake since late 2002; that the placement of a weed barrier will make access to and from the Lake more difficult and create a safety hazard; and that in the event a problem arises again, the more desirable options for removing the weeds are "a 'cookie-cutter,' mechanical harvester, or the spraying of [the] tussocks," rather than erecting a barrier. Finally, Mr. Lahey contends that as a matter of law, Section 369.20, Florida Statutes, bars the construction of a barrier. He has not challenged the Department's authorization for the District to use state-owned submerged lands or its determination that the project complies with the SPGP program, and therefore those aspects of the proposed agency action are not in issue. Respondents do not dispute that Mr. Lahey has standing to bring this action. The Lake and Control Structure The Lake is an approximately 4,500-acre Class III waterbody located east of Highway 98 and Highland City, southeast of Lakeland, and just northeast of the City of Bartow (Bartow). It receives drainage from a significant portion of the County, including three streams and runoff from a surrounding 131-square mile watershed. Waters discharge from the Lake to Saddle Creek (the canal), which exits at the southwest end of the Lake and runs in a southerly direction for around a mile and a half until it merges with the Peace Creek, where the two then become the Peace River. At the confluence of the canal and Peace Creek, the waters flow through a broad, flat floodplain. Water moves slowly through this area, which can affect the ability of the Lake to discharge, especially during flood conditions. Like the Lake and canal, the Peace Creek also has a significant contributing basin. The canal contains a District-owned and operated water control structure known as Water Control Structure P-11 (the control structure) consisting of two twenty-foot radial arm gates that are raised when necessary to manage the water levels on the Lake and prevent the flooding of lakefront property. The control structure is approximately 3,000 feet or so south of the Lake and is the only control structure regulating water levels for the Lake. The gates are designed to discharge at a flow level of 1,100 cubic feet per second (cfs). The invert elevation of the control structure is 91.7 feet and the crest elevation is 98.7 feet. Flows from the Lake will exceed 1,100 cfs when the water levels are higher than the crest elevation of the structure. At this point, water flows over the structure’s weirs and flood control is no longer provided. The maximum desirable water elevation level for the Lake is 98.5 feet above mean sea level (msl). Typically, the District begins to operate, or open, the control structure when the Lake's water elevation reaches 98.25 feet msl. A water level of 99.0 feet msl is considered minimum flood level (or high guidance level). The low management water elevation (low guidance level) is 96.0 feet msl. These established water levels have been maintained at the Lake since approximately 1981. The District seeks to hold the water level of the Lake close to the maximum desirable level, and typically tries to hold the water level at 98.25 feet msl, which is slightly below the maximum desirable level of 98.5 feet msl, to allow storage of water and some response time. The control structure is intended primarily to be a water conservation structure that regulates the Lake's water levels to benefit the water resources, to include the Lake and the Peace River. In managing the Lake's levels, the District balances conservation of the water resource and public safety/flooding concerns. The Lake's water level elevations are monitored through the District’s Supervisory Control and Data Acquisition System (SCADA), which measures the water level and transmits hourly data to the District offices via satellite. SCADA monitors are located immediately upstream and downstream of the control structure. Since the tussock blockage events in the summer and fall of 2002, described more fully below, the District has installed an additional SCADA monitor on the north end of the Lake so that water levels in the Lake and canal can be compared. The Lake does not have direct public access or a public boat ramp and is not easily accessible. In addition, in the canal, there is only one unimproved location upstream from the control structure where boats can be placed in the water and gain access to the Lake. That portion of the canal which lies between the Lake and the control structure has not always been open to boat access. In the 1980’s, a floating weed barrier extended across the canal approximately 1,000 feet upstream from the current control structure, which blocked the canal and boat access. This floating weed barrier was installed primarily to address problems with water hyacinths that would float down the canal and interfere with the control structure. This floating barrier gave way sometime in the 1990’s. An earlier control structure also used to exist in this area, which blocked canal access. Navigation of the canal is limited due to the existence of the control structure and a number of other blockages further downstream, including a low bridge where old Highway 17 crosses the canal. Thus, boats coming from the Lake cannot navigate down the canal any further than the control structure, or slightly more than one-half mile, without taking the boat out of the water. Between 1999 and 2001, the District experienced one of the most severe droughts on record. During this time, the Lake went dry except for some isolated pools of water. Because of these conditions, a significant amount of wetland or aquatic vegetation began to grow on the exposed bottom of the Lake. The Lake historically did not support much plant growth, due to its eutrophic condition, poor water quality, and gelatinous mucky lake bottom. The types of vegetation currently existing in the Lake include cattails, pickerelweed, duck potato, and primrose willow. Following the return of summer rains and El Nino conditions in 2002, the Lake rebounded to within normal water levels. Because of the return of water in the Lake, the buoyant pressure of the water combined with the flaccid nature of the mucky lake bottom caused significant portions of vegetation to become uprooted, which formed an extensive amount of tussocks. Tussocks are floating mats of uprooted aquatic vegetation. They contain plant and organic material accumulated around the plant roots, can range from a few feet across to one hundred feet across or larger, and can reach a height of more than four feet. Once tussocks form, they move about the Lake by wind and water currents. The amount of vegetation currently existing in the Lake exceeds historic levels. At the present time, the District estimates that approximately 2,000 acres of the Lake are covered with tussocks, and that due to the flaccid nature of the lake bottom, the tussocks are susceptible to becoming uprooted through fluctuating water levels, wind, and wave action. Therefore, there is a strong potential that much of the currently rooted vegetation will form tussocks. Tussocks first impacted the District’s ability to operate the control structure in July 2002. During this event, the canal became partially filled with tussocks. Because the blockage occurred during the rainy and hurricane seasons, the District undertook efforts to clear the canal of tussocks. District staff used mechanical equipment commonly called a cookie cutter to break up the tussocks and flush them downstream through the control structure. During this tussock event, the Lake's water levels rose briefly above the maximum desirable level of 98.5 feet msl and then fell back to within normal elevations. In late August 2002, approximately three weeks after the first tussock blockage event, a number of homeowners on the Lake, including Petitioner's wife, contacted District staff to advise that the water level of the Lake was rising and flooding their yards. A rise in water levels did not register on the District’s water level monitoring SCADA system. Visual observation of the Lake did reveal, however, that there was a significant difference between the water levels being experienced on the Lake and the water levels reported at the control structure via the SCADA system. During this tussock event, masses of tussocks had completely filled the 3,000-foot length of the canal all the way to the control structure and were jamming against the control structure gates. Tussocks had also formed a vegetation dam approximately 900 to 1,400 feet north of the control structure where they compacted and became lodged on the bottom of the canal, significantly impeding the flow of water. During this event, flows out of the Lake were significantly diminished to a fraction of what they should have been. The tussock dam caused the Lake's level to rise above the minimum flood elevation of 99.0 feet and flood Petitioner's yard. There was an approximately one to one and one-half foot difference in the water levels in the Lake and in the canal. In response to this disparity, the District installed a third water level elevation monitor at the northern end of the Lake, so that it can monitor any differences in water elevations between the Lake and the canal and be alerted in the event that a blockage occurs in the canal. To eliminate the tussock blockage and restore flow through the control structure, the District had to employ mechanical means to break up and remove the tussocks. At the control structure, a trac-hoe was initially used in an attempt to force tussocks through the control structure, as tussocks would not flow through the structure unassisted. A cookie cutter was also employed, but it became sucked into the control structure and was damaged and had to be removed with a crane and repaired. The cookie cutter proved ineffectual in addressing the tussock blockage problem. If the canal were to again become clogged with tussocks, any resulting blockage of flow from the Lake would cause water levels to rise, which would endanger public safety and welfare. Prior to the tussock blockages experienced in the summer and fall of 2002, problems with tussocks had never been experienced at the Lake. The magnitude of the tussock formation on the Lake is unique and has not been experienced elsewhere in the District. In 2002, the Department expended over $46,000.00 in contracting for mechanical equipment and for spraying herbicide on tussocks to respond to the tussock buildup on the Lake. Since their formation after the summer of 2002, tussocks have blocked Petitioner's access to his dock on several occasions, thereby preventing him from being able to take his boat out into the Lake or to return to the dock once out on the Lake. The potential for similar blockages to occur remains, regardless of whether a floating weed barrier is erected as proposed. The direction of the winds is a major factor in determining where and how many tussocks will stack up in front of anyone’s property along the Lake. Access to the canal could become blocked with tussocks at any time, depending upon how the wind blows. Breaking up tussock blockages and flushing tussocks through the control structure does not eliminate water resource problems for the District. Tussocks that are pushed through the control structure cause downstream problems requiring the District to expend resources to push the tussocks through and under low downstream bridges crossing the canal, as well as break up tussock blockages that form in downstream waters. In January 2003, tussocks again accumulated at the control structure in such volume as to require assistance in flushing through the control structure. As a result of the large volume of tussocks pushed through the control structure, a tussock blockage occurred at a downstream bridge crossing, for which the District had to use mechanical equipment to restore flow. During March 2003, tussocks flushed through the control structure created a jam downstream on the Peace River. The tussocks were jammed up in a bend in the river and were blocking navigational access to the river. An El Nino weather cycle is currently being experienced. Water levels, including the Lake's water level, are already at their maximum and the ground is saturated. Localized flooding events have occurred. A very active summer rainy season is anticipated, which will mean significant flood control operations for the District. As the summer season approaches, the District must keep the control structure open and operational, which requires that the canal be kept open and flowing. A floating weed barrier at the entrance to the canal would keep tussocks from clogging the canal and prevent problems affecting operation of the control structure, downstream tussock blockages, and possible flooding. The Project To address the problem of tussocks entering the canal and causing blockages or possible flooding, on September 11, 2002, the District applied to the Department for a Noticed General ERP under Rule 62-341.475(1)(a), Florida Administrative Code, to authorize the construction of a floating weed barrier at the entrance to the canal. On September 27, 2002, the Department issued its notice of intent to authorize the requested activity. The proposed barrier will be constructed in two sections arranged at approximately 90-degree angles to each other, with a twenty-foot opening between the sections to allow boat access to the canal. A schematic drawing of the barriers is found in District Exhibit 5 received in evidence. As originally proposed, the barrier would consist of a total of sixteen nine-inch diameter pilings driven twenty-one feet apart, with twenty-foot sections of floating foam-filled polyvinyl chloride pipe (pvc) connected to the pilings. Pilings will be marked with reflective tape and five of the pilings will have three-foot diamond-shaped reflective danger signs reading "DANGER PILE/FLOAT BARRIER" placed on their upstream and downstream sides. The pilings are twenty-five feet in length and will extend above the Lake's water level approximately twelve to fourteen feet. Since the District's submittal of the application and the Department's authorization notice, the District has located commercially manufactured floating booms, called "Tuffbooms," that, if authorized, will be installed in lieu of the foam-filled pvc pipes. Use of these booms reduces the number of pilings needed from sixteen to eight, and their bright orange color is more visible than pvc piping. All other aspects of the proposed activity remain the same. The change in material to be used in the construction of the proposed floating barrier does not present any water quality issues, nor does it affect the Department's determination that the proposed activity will have minimal or insignificant adverse impacts on the water resources. The staggered layout of the proposed floating weed barrier is intended to keep tussocks in the Lake, where they can remain subject to the winds, while providing boat access to the canal in such a manner that is more difficult for tussocks to enter the canal. The Department's Exemption Process The Department's Tampa District Office routinely approves around 800 projects each year under various exemptions authorized by statute or rule. One type of exemption is found in Section 373.406(6), Florida Statutes, referred to as the de minimus exemption, which allows the Department to exempt from regulation those activities that are determined will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. The Department is authorized to make this determination on a case-by-case basis. In determining whether an activity qualifies for a de minimus exemption from permitting, the Department looks for parallels to other specific statutory or rule exemptions and analyzes the proposed activity similarly in terms of its scope, construction methods, potential to create water quality impacts or impediments to navigation, and other factors, because these recognized exemptions are also deemed to have minimal or insignificant impacts to the water resources. There is no specific exemption for a floating weed barrier as proposed by the District, but the Department considers this type of project to be similar in scope and potential impacts to other specific activities that have been determined to have minimal or insignificant adverse impacts to the water resources, such as docks and other piling-supported structures, navigational aids, and buoy systems. In assessing whether a project is appropriate for the de minimus exemption, the Department also looks to the criteria for Noticed General ERPs for guidance in determining whether a proposed project will have minimal or insignificant adverse individual or cumulative impacts upon the water resources. Under Section 373.406(5), Florida Statutes, the Department may by rule establish general permits for activities that have, either singularly or cumulatively, minimal environmental impact. Chapter 62-341, Florida Administrative Code, sets forth the Noticed General ERPs established by the Department. Department Rule 62-341.475(1)(a), Florida Administrative Code (as does District Rule 40D-400.475(1)(a), Florida Administrative Code), allows noticed general permits for piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters. To qualify for a noticed general permit for such activity, an applicant must provide reasonable assurance that the proposed structure: Does not significantly impede navigation and does not entail the construction of a structure for the launching or mooring of a boat when navigational access to the structure does not currently exist; Does not cause a violation of state water quality standards; Does not impede the conveyance of a stream, river or other watercourse in a manner that would increase off-site flooding; Does not adversely impact aquatic or wetland dependent listed species; Does not cause the drainage of wetlands; and Is not located in, on or over a coral community, macro-marine algae or submerged grassbed community. Will the Project Impact Water Resources? The District’s proposed floating weed barrier will involve less than 7.1 square feet of impact to the water resources, which is significantly less impact in square footage to the water resources than is allowed by Rule 62- 341.475(1)(a), Florida Administrative Code, or occurs with other specified exempt projects. Best management practices will be used in the erection of the pilings and in the construction of the barriers. Pilings will be jetted into the lake bottom without need for any dredging or lake bottom removal. Installation of a floating weed barrier will not result in any significant detriment to existing conditions in the Lake or the canal. Installation of the proposed floating weed barrier will benefit the public interest and the water resources by allowing unimpeded operation of the control structure without risk of tussocks causing blockages and flooding. Installation of the proposed floating weed barrier will not have significant adverse impacts on fishing, boating, or recreational use of the Lake or canal. A blockage of the canal entrance by tussocks, or a tussock jam anywhere on the Lake, could occur under present conditions, and similar blockages have already occurred. The potential for tussocks to block the opening between the sections of the floating weed barrier is considered remote and of temporary duration, due to the potential for shifting winds. The District’s proposed floating weed barrier is a reasonable means of addressing the continuing potential for tussocks to interfere with operation of the control structure. Use of mechanical equipment such as a cookie cutter or harvester would not be an effective or economical means of addressing tussock blockages in the canal or preventing their occurrence and possible interference with operation of the control structure. Pushing tussocks through the control structure would not be an effective means of addressing the potential for tussocks to cause blockages and possible flooding. Merely pushing the material through the control structure moves the potential blockage problem downstream and does not alleviate the potential for tussocks to cause adverse impacts to the water resources of the District. Spraying tussocks with herbicides would not be an effective means of addressing tussock blockages due to the fact that, once treated, tussocks can take weeks to die and fall to the lake bottom. Floating tussocks are and will continue to be treated with herbicide sprays when found in the Lake to reduce the amount of tussocks. However, once tussocks enter the canal, spraying serves little benefit in preventing tussocks from causing blockages or other problems. Tussocks originate in the Lake and not in the canal. Tussocks in the Lake have had and likely will continue to have an impact on boating and recreational use of the Lake and canal, as evidenced by tussock blockages to Petitioner's dock. By confining the tussocks to the Lake, the potential for tussocks to impact boating and recreational use of the Lake will remain the same as current conditions, but the potential for tussocks to affect operation of the control structure and contribute to Lake flooding will be eliminated. Petitioner contends that the proposed floating weed barrier will impede navigation, either by itself or as a result of tussocks piling up in front of the barrier. The proposed barrier will be marked and visible through reflective tape and signage. The barrier does not create a navigational hazard and is not a significant impediment to access to the canal. Constructed in two sections, the barrier provides an opening that allows boat access to the canal. As noted above, the likelihood of tussocks piling up at the barrier and blocking the opening between the barrier sections is considered remote and temporary. Based upon the information provided by the District, the proposed floating weed barrier will not significantly impede navigation; will not cause a violation of state water quality standards; will not impede the conveyance of a stream, river, or other water course in a manner that would increase off-site flooding; will not adversely impact aquatic or wetland dependent listed species; and will not cause the drainage of wetlands. There is no evidence that the proposed activity is located in, on, or over a coral community, macro-marine algae, or submerged grassbed community or that it entails the construction of a structure for the launching or mooring of a boat for which navigational access does not currently exist. The proposed activity would have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. As an activity that has minimal or insignificant adverse impacts on the water resources of the District, either individually or cumulatively, the District’s project qualifies for an exemption pursuant to Section 373.406(6), Florida Statutes, as well as a Noticed General ERP under Rule 62- 341.475(1)(a), Florida Administrative Code. The Department's exemption determination authorized the District’s floating weed barrier for one year, presumably so that the effectiveness of the barriers can be evaluated during that period of time. If they are effective, an extension or renewal of the authorization will be sought. If the tussocks problem becomes less acute, or the barriers do not achieve the desired purpose, they will be taken down. In contrast, Noticed General ERPs authorize a particular activity for five years. Other Contentions by Petitioner Petitioner has also contended that the proposed activity may violate a condition of the District's Corps of Engineers general permit by interfering with general navigation. As found earlier, however, the more credible evidence indicates otherwise. Moreover, it is presumed that this issue was considered by the Corps of Engineers prior to its approval of the project. In any event, that matter should be raised with the Corps of Engineers, and not with the Department. Finally, Mr. Lahey contends that since at least late 2002, the Lake has been free of a tussocks problem and therefore barriers are no longer needed. As noted above, however, blockages have occurred at the control structure and in the Peace River as recently as January and March 2003, and such blockages were the direct result of tussocks which originated in the Lake. Given the likelihood of a very active summer rainy season, it is essential that the canal be kept open so that the District can properly manage and control the water resources.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order determining that the Southwest Florida Water Management District's proposed project qualifies for an exemption under Section 373.406(6), Florida Statutes; that authorization to use state-owned lands be given; and that the project is in compliance with the State Programmatic General Permit program. DONE AND ENTERED this _____ day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this _____ day of May, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bruce Lahey 5280 Waterwood Drive Bartow, Florida 33830-9766 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue is whether an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.
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 Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556
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 The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue is whether the District should approve Environmental Resource Permit No. 43024788.002 for the construction of a surface water management system to serve the proposed residential subdivision on Westfield’s property in southern Pasco County, and based upon the prior litigation between the parties in DOAH Case No. 04-0003 and the pre-hearing rulings in this case, the issue turns on whether Westfield has provided “reasonable assurances” in relation to the proposed development's potential impacts on Wetland A3 and fish and wildlife.
Findings Of Fact Parties Dr. Blanco is a veterinarian. He grew up on, and has some sort of ownership interest in the property (hereafter “the Blanco property”) immediately to the west of the property on which the proposed development at issue in this case will occur. Dr. Blanco is particularly concerned about the impacts of the proposed development on the ecological health of Wetland A3, a significant portion of which is on the Blanco property. He has spent considerable time over the years observing and enjoying that wetland. Westfield is the applicant for the ERP at issue in this case, and it owns the property (hereafter “the Westfield property”) on which the development authorized by the ERP will occur. The District is the administrative agency responsible for the conservation, protection, management, and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40D. Among other things, the District is responsible for reviewing and taking final agency action on ERP applications for projects within its boundaries. The District includes all or part of 16 counties in southwest Florida, including Pasco County. The Proposed Development (1) Generally The Westfield property consists of 266.36 acres.3 It is located in southern Pasco County on the north side of State Road 54, approximately three miles west of U.S. Highway 41 and less than one-half mile east of the intersection of State Road 54 and the Suncoast Parkway. The Westfield property is bordered on the south by State Road 54,4 on the north by an abandoned railroad right-of- way and undeveloped woodland property, on the east by pastureland and property that has been cleared for development, and on the west by the Blanco property. The development proposed for the Westfield property is a residential subdivision with 437 single-family lots and related infrastructure (hereafter “the Project” or “the proposed development”). The ERP at issue in this proceeding is for the surface water management system necessary to serve the Project. There are 19 isolated and contiguous wetlands on the Westfield property, including Wetland A3, which is partially on the Westfield property and partially on the Blanco property. Wetlands cover 72.69 acres (or 27.3 percent) of the Westfield property. The proposed development will result in 1.61 acres of the existing wetlands -- Wetlands B4 and C4, and a portion of Wetland B12 -- being permanently destroyed. The remaining 71.08 acres of existing wetlands will be preserved. Wetlands B4 and C4 are small (each less than 0.75 acres), shallow, wet depressions in a pasture that have been significantly impacted by livestock grazing and periodic mowing. Wetland B12 is a low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species. The proposed development will create 2.89 acres of new wetlands, which means that the Project will result in a net gain of 1.28 acres of wetlands. The created wetlands, referred to as Wetland B2 or the “mitigation area,” are in the northern portion of the property along the abandoned railroad right-of-way and to the east of Wetland A3. The proposed ERP includes a number of special conditions, Nos. 6 through 11, related to the mitigation area. Among other things, the conditions require monitoring of the mitigation area to ensure that it develops into the type of forested wetland proposed in the ERP application. (2) Prior ERP Application The ERP at issue in this case is the second ERP sought by Westfield for the Project. The first ERP, No. 43024788.000, was ultimately denied by the District through the Final Order in Blanco-I. Blanco-I, like this case, was initiated by Dr. Blanco in response to the District’s preliminary approval of Westfield’s ERP application. Administrative Law Judge David Maloney held a three- day final hearing in Blanco-I at which the parties, through counsel, fully litigated the issue of whether Westfield satisfied the regulatory criteria for the issuance of an ERP for the proposed development. On December 17, 2004, Judge Maloney issued a comprehensive, 64-page Recommended Order in which he recommended that Westfield’s ERP application be denied. Judge Maloney determined in his Recommended Order that Westfield failed to provide reasonable assurances as required by the applicable statutes and rules because “[1] it omitted an adequate wildlife survey from the submission of information to the District and [2] it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland.”5 In all other respects, Judge Maloney determined that the applicable permit requirements had been satisfied. Dr. Blanco did not file any exceptions to the Recommended Order in Blanco-I. Westfield’s exceptions to the Recommended Order in Blanco-I were rejected by the District, and the Recommended Order was adopted “in its entirety” in the District’s Final Order. The Final Order in Blanco-I was rendered on January 27, 2005, and was not appealed. (3) Current ERP Application On April 29, 2005, approximately three months after the Final Order in Blanco-I, Westfield submitted a new ERP application for the Project. The current ERP application, No. 43024788.002, is identical to the application at issue in Blanco-I, except that the depth of Pond P11 was reduced in certain areas from a maximum of approximately 25 feet to a maximum of approximately 12 feet, an analysis of the potential impact of Pond P11 on Wetland A3 resulting from “seepage” was included with the application, and additional wildlife surveys were included with the application. On July 29, 2005, the District gave notice of its preliminarily approval of the current ERP application. The notice was accompanied by a proposed ERP, which contained a description of the Project as well as the general and special conditions imposed by the District. On August 24, 2005, Dr. Blanco timely challenged the District’s preliminary approval of the current ERP application. The Request for Administrative Hearing filed by Dr. Blanco in this case is identical to the request that he filed in Blanco-I. Disputed Issues Related to the Current ERP Application Impact of Pond P11 on Wetland A3 Dr. Blanco’s primary objection to the Project is the excavation of Pond P11 adjacent to Wetland A3. Wetland A3 is on the western border of the Westfield property and, as noted above, the wetland extends onto the Blanco property. The portion of Wetland A3 that is on the Westfield property is approximately 30 acres, and the portion of the wetland on the Blanco property appears to be slightly larger. Wetland A3 is a large, mature, Cypress-forested wetland. It has been impacted by nearby development and is not a pristine wetland, but it is still a mid to high quality wetland for the area.6 Wetland A3 is part of a larger wetland system that extends northward and westward beyond the abandoned railroad right-of-way that serves as the northern boundary of the Westfield and Blanco properties. Cypress-forested wetlands, such as Wetland A3, are very tolerant of prolonged periods of drought and inundation. The seasonal high groundwater level in Wetland A3 is approximately one foot below the surface in most areas of the wetland. There are, however, areas in Wetland A3 in which water is frequently a foot or two above the surface. The groundwater levels in Wetland A3 have, in the past, been significantly impacted by drawdowns in the aquifer caused by pumping in nearby wellfields. The impact has been less significant in recent years as a result of the reductions in pumping mandated by the Tampa Bay Consolidated Water Use Permit. The planned interconnection of several nearby wellfields is also expected to minimize the drawdowns in the aquifer and should further stabilize the groundwater levels in Wetland A3. Pond P11 will be located adjacent to Wetland A3. There will be a 25-foot buffer between the pond and the wetland. The location of Pond P11 is unchanged from the first ERP application. Pond P11 will have a surface area of approximately 37 acres. The surface area of Pond P11 is unchanged from the first ERP application. Pond P11 is a necessary component of the surface water management system for the Project. It also serves as a “borrow pit” because the soil excavated from the pond will be used on- site as fill for the proposed development. The excavation of Pond P11 to the depth proposed in the current ERP application is not necessary for water storage. The pond could be excavated to the seasonal high water level -- approximately 2.5 feet deep -- and still function as intended as part of the proposed surface water management system. Pond P11 will be used for attenuation, but the pond is also expected to provide at least some amount of water quality treatment, which is an added benefit to Wetland A3 into which the proposed surface water management system will ultimately discharge through Pond P11. The only change made to Pond P11 between the first and current ERP applications was a reduction in the pond’s maximum depth. The pond, which had a maximum depth of approximately 25 feet in the first ERP application, was “shallowed up” in the current ERP application. Pond P11 will now be approximately 12-feet deep at its deepest point, unless the District authorizes excavation to a greater depth in accordance with special condition No. 28. The shallowest area of Pond P11 will be along the western edge of the pond adjacent to Wetland A3 where there will be an expansive “littoral shelf” that will have almost no slope and that will be excavated only to the seasonal high water level.7 There was no change in the design of the surface water management system between the first ERP application and the current ERP application. The reduction in the depth of Pond P11 will have no impact on the operation of the system, which was described in detail in Blanco-I.8 Pond P11 will have a control structure to allow water to be discharged into Wetland A3 near its southern end, which is a more upstream location than water is currently discharged as a result of the ditches that intercept surface water flowing across the Westfield property. This design feature of the surface water management system is intended to mimic historic hydrologic conditions and is expected to increase the hydration of Wetland A3. The ERP includes a special condition, No. 28, relating to the excavation of Pond P11. The condition provides: Maximum depth of excavation will be +38 feet NGVD[9] unless additional field observations and data are provided that support excavation to greater depth, subject to review and approval by District staff. Proposed maximum depths of excavation . . . may be exceeded based upon field observations and approval as specified. Due to the potentially irregular depths to limestone, excavation will be stopped at a shallower depth if confining soils are encountered before reaching the maximum depth specified in Subcondition A, above. A geotechnical field technician will be present on site during the entire excavation process in order to monitor excavated soils. The field technician will be under the supervision of a Professional Geologist or Professional Engineer. For the purposes of the specific project, confining soils are defined as soils with more then 20 percent fines passing a No. 200 sieve. The field technician will be authorized to halt depth of excavation when confining soils are encountered. Excavation may proceed deeper than soils containing 20 percent or more fines if the soils are shown to be an isolated lens of material significantly above underlying confining soils or limestone, as determined by field observations and data subject to approval by District staff. Confining soils do not uniformly overlie the limestone; therefore it is possible that the underlying limestone could be encountered in spite of precautions in Subconditions A and B above. If the underlying limestone is encountered, excavation will be halted in the area of exposed underlying limestone. The area of exposed limestone will be backfilled to a minimum depth of two feet with compacted material meeting the specification of confining soils, having more than 20 percent fines passing a No. 200 sieve. The geotechnical field technician must certify that the backfill material meets this specification. One of the reasons that the ERP application was denied in Blanco-I was that Westfield failed to take into account the potential hydrologic impacts on Wetland A3 caused by “seepage” of water from Pond P11 due to the depth to which the pond was to be excavated and the corresponding removal of the confining layer of soils between the bottom of the pond and the aquifer. After Blanco-I, Westfield retained Marty Sullivan, a professional engineer and an expert in geotechnical engineering and groundwater and surface water modeling, to evaluate the seepage issue and the potential hydrologic impacts of Pond P11 on Wetland A3. Mr. Sullivan developed an integrated or “coupled” groundwater/surface water model to assess these issues. The model was designed to project the change in groundwater levels caused by the proposed development more so than absolute groundwater levels. The model utilized a widely-accepted computer program and incorporated data from topographic and soil survey information maintained by the U.S. Geologic Service; data from soil borings performed on the Westfield property in the vicinity of Wetland A3 in the area where Pond P11 will be located; data from groundwater monitoring wells and piezometers installed around the Westfield property; data from soil permeability tests performed on-site and in the laboratory; data from a rain gauge installed on the Westfield property; and data from the District’s groundwater monitoring wells in the vicinity of the Westfield property. Mr. Sullivan “calibrated” the model based upon known pre-development conditions. He then “ran” the model with the data from the Interconnected Pond Routing (ICPR) model10 used to design of the surface water management system in order to project the post-development groundwater conditions over a simulated ten-year period. Mr. Sullivan’s coupled groundwater/surface water model addresses the shortcoming of the ICPR model set forth in Blanco- I.11 The model projects that the post-development groundwater levels at the western boundary of the Westfield property in Wetland A3 adjacent to Pond P11 will be the same as the pre-development levels during the “wet season” of June to September, and that, on average and during the “dry season” of October to May, the post-development groundwater levels will be 0.3 feet higher than the pre-development levels. Mr. Sullivan summarized his conclusions based upon these projections in a report provided to the District with the current ERP application. The report states that: no adverse hydrologic effects will result from the excavation of Pond P11 and the development of the surrounding area. Particularly, Wetland A3 will be essentially unaffected and will be slightly enhanced by this development. Some additional hydration of wetland A3 will occur due to eliminating the north-south drainage ditch and instead routing runoff to Pond P11, which is adjacent to Wetland A3. The relative differences in the pre- and post- development levels are more important than the absolute levels projected by the model and, in this case, there is almost no difference in the levels. The minimal change in the water levels expected in Wetland A3 will not affect the wetland’s ecological functioning or its viability. A 0.3-foot change in the water level is well within the normal range of hydroperiod fluctuation for Wetland A3. The rate at which water increases and decreases in a wetland can impact wetland ecology and wetland-dependent species. The proposed surface water management system will not increase the surface water discharges from the Westfield property, and in compliance with Section 4.2 of the Basis of Review (BOR),12 the post-development discharge rates will not exceed the pre-development peak discharge rates. There is no credible evidence that there will be an adverse impact on Wetland A3 caused by changes in the discharge rate from the Westfield property through Pond P11 into Wetland A3. The range of error, if any, in Mr. Sullivan’s model is unknown. He has never performed a post-development review to determine how accurately the model predicts the post-development conditions that are actually observed. Nevertheless, the more persuasive evidence establishes that Mr. Sullivan’s model is reasonable, as are his ultimate conclusions based upon the model’s projections. Mr. Sullivan recommended in his report that Pond P11 be excavated no deeper than two feet above the limestone to avoid potential breaches of the confining soils above the aquifer. That recommendation led to the pond being “shallowed up,” and it was incorporated by the District into special condition No. 28. The provisions of special condition No. 28 are reasonable to ensure that excavation of Pond P11 will not breach the confining layer. The standards in special condition No. 28 pursuant to which a geotechnical field technician will monitor the excavation of Pond P11, and pursuant to which the District will determine whether to authorize deeper excavation of the pond, are generally accepted and can be adequately monitored by professionals in the field and the District. There is a potential for the loss of “significant volumes of water” from Pond P11 through evaporation “[d]ue to the sheer size of P11’s open surface area.”13 It is not entirely clear how the evaporation of water from Pond P11 was taken into account in Mr. Sullivan’s model, but it appears to have been considered.14 Dr. Mark Rains, Petitioner’s expert in hydrogeology, ecohydrology, and geomorphology, testified that evaporation from open water is generally about 12 inches more per year than evaporation from a wet meadow or Cypress forest, but he did not offer any specific criticism of the projections in Mr. Sullivan’s model related to the issue of evaporation. In sum, the more persuasive evidence establishes that Wetland A3 is not likely to suffer any adverse ecological or hydrological impacts from the proposed surface water management system and, more particularly, from Pond P11. Westfield has provided reasonable assurances in that regard. (2) Adequacy of the Wildlife Surveys The other reason why the first ERP application for the Project was denied in Blanco-I was that the wildlife surveys submitted with that application were found to be inadequate. Wildlife surveys are not required with every ERP application and, in that regard, Section 3.2.2 of the BOR provides that: [t]he need for a wildlife survey will depend on the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that the criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Westfield conducted a “preliminary” wildlife assessment in 2001. No listed species were observed, nor was any evidence of their presence on the Westfield property. Nevertheless, as detailed in Blanco-I,15 the District requested that Westfield perform a wildlife survey of Wetlands B4, C4, and B12, because all or part of those wetlands will be permanently destroyed by the proposed development. In an effort to comply with the District’s requests, Westfield conducted additional field visits in 2003 and also performed specific surveys for Southeastern Kestrels and Gopher Tortoises. The field visits “confirmed” the findings from the preliminary wildlife assessment, and no evidence of Southeastern Kestrels and Gopher Tortoises was observed during the surveys for those species. Judge Maloney found in Blanco-I that the wildlife surveys conducted by Westfield were inadequate because they “did not employ the methodology recommended by the District: the FWCC methodology.”16 However, the wildlife surveys were not found to be inadequate in Blanco-I because they focused on Wetlands B4, C4, and B12, instead of evaluating the entire Westfield property and/or all of the potentially impacted wetlands, including Wetland A3. After Blanco-I, a team of qualified professionals led by Brian Skidmore, an expert in wetlands, Florida wetlands ecology, and listed species assessment, conducted additional wildlife surveys of the Westfield property. Mr. Skidmore and his team had performed the preliminary wildlife assessment and the supplemental surveys submitted with Westfield’s first ERP application. The “FWCC methodology” referenced in Blanco-I is a methodology developed by the Fish and Wildlife Conservation Commission (FWCC) to evaluate potential impacts to listed species from large-scale projects, such as developments-of- regional impact and new highways. It is not specifically designed for use in the ERP process, which focuses only on wetland-dependent species. Mr. Skidmore adapted the FWCC methodology for use in the ERP process. The methodology used by Mr. Skidmore was reviewed and accepted by the District’s environmental regulation manager, Leonard Bartos, who is an expert in wetland ecology and ERP rules. The surveys performed by Mr. Skidmore and his team of professionals occurred over a five-day period in February 2005. The surveys focused on Wetlands B4, C4, and B12, and were performed at dawn and dusk when wildlife is typically most active. Additional wildlife surveys of the entire site were performed on five separate days between October 2005 and January 2006. Those surveys were also performed at dawn and dusk, and they included observations along the perimeter of Wetland A3 and into portions of the interior of that wetland on the Westfield property. Mr. Skidmore reviewed databases maintained by FWCC to determine whether there are any documented waterbird colonies or Bald Eagle nests in the vicinity of the Project. There are none. Mr. Skidmore contacted the Florida Natural Area Inventory to determine whether there are any documented rare plant or animal species on the Westfield property or in the vicinity of the Project. There are none. The post-Blanco-I wildlife surveys did not evaluate the usage of the Westfield property by listed species during the wetter spring and summer months of March through October even though, as Mr. Skidmore acknowledged in his testimony, it is possible that different species may use the property during the wet season. The post-Blanco-I wildlife surveys, like the original wildlife surveys, focused primarily on the species contained in Appendix 5 to the BOR -- i.e., wetland-dependent species that use uplands for nesting, foraging, or denning -- but Mr. Skidmore testified that he and his surveyors “were observant for any species,” including wetland-dependent species that do not utilize uplands. No listed wetland-dependent species were observed nesting or denning on the Westfield property. Several listed wetland-dependent birds -- i.e., snowy egret, sandhill crane, wood stork, and white ibis -- were observed foraging and/or resting on the property. Those birds were not observed in Wetlands B4, C4, or B12. The parties stipulated at the final hearing that the determination as to whether Westfield provided reasonable assurances with respect to the statutory and rule criteria related to fish and wildlife turns on whether the wildlife surveys submitted by Westfield are adequate.17 BOR Section 3.2.2 provides that “[s]urvey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.” The wildlife surveys conducted by Westfield subsequent to Blanco-I in accordance with the FWCC methodology meet this standard. Although the surveys could have been more extensive in terms of the species assessed and the period of time over which they were conducted, the more persuasive evidence establishes that the wildlife surveys are adequate to document the presence or, more accurately the absence of listed wetland- dependent species on the Westfield property. The wetlands that will be directly impacted by the proposed development -- Wetlands B4, C4, and B12 -- do not provide suitable habitat for listed species. Those wetlands are small, low-quality wetlands, and Wetland B12 is technically exempt from the District’s fish and wildlife review because it is a small isolated wetland. There is no credible evidence that there will be any other adverse impacts to fish and wildlife from the proposed surface water management system. For example, even if there are undocumented listed species -- e.g., frogs, snakes, snails, etc. -- in Wetland A3, Mr. Skidmore credibly testified that the expected 0.3-foot increase in groundwater levels in that wetland during the dry season is not likely to adversely affect those species or their habitat because the water will still be below the surface. In sum, Westfield has provided reasonable assurance that the proposed development will not adversely affect fish and wildlife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue a final order approving Environmental Resource Permit No. 43024788.002, subject to the general and special conditions set forth in the proposed ERP dated July 29, 2005. DONE AND ENTERED this 10th day of April, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 10th day of April, 2006.
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.
