97-001682 Collier Cattle Corporation And Tropical Ranch Properties, Inc. vs. South Florida Water Management District And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, June 25, 1998.

Summary: District provided reasonable assurance as to criteria in Rules 40E-4.302 and 40E-4.301, Florida Administrative Code, for issuance of environmental resource permit for weir in Merritt Canal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER CATTLE CORPORATION, and )

TROPICAL RANCH PROPERTIES, INC., )

)

Petitioners, )

)

and )

)

WALTER R. SHAW, SR., )

)

Intervenor, )

vs. ) Case No. 97-1682

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Naples, Florida, on August 12, 13, 28, and 29, October 1, 2,

8, and 9, November 13, 14, 17, 18, and 19, 1997, and

January 6, 7, and 8, 1998.

APPEARANCES

For Petitioners: James W. McDonald, Jr.

McDonald & Associates

Co mmunity Plaza, Suite 306

15600 Southwest 288th Street

Homestead, Florida 33030

A. Glenn Simpson

Qualified Representative

5961 22d Avenue Southwest

Naples, Florida 34116

For Respondent South Florida Water Management District:

Marcy I. LaHart

Associate Attorney

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Flo rida 33416-4680

For Respondent Department of Environmental Protection:

Francine M. Ffolkes

Assistant General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor Walter R. Shaw, Sr.:

Walter R. Shaw, Sr., pro se

1400 Northwest 62nd Avenue

Sunrise, Florida 33313-6138

For Intervenor Clifford L. Fort:

Cliffort L. Fort

8410 Northwest 16th Street

Pembroke Pines, Florida 33024

STATEMENT OF THE ISSUE

The issue is whether Respondent South Florida Water

Management District is entitled to an environmental resource

permit from Respondent Department of Environmental Protection

to construct a weir in Collier County on the Merritt Canal

about 3600 feet south of Interstate 75 for the purpose of

extending the hydroperiod on the Florida Panther Federal

Wildlife Refuge.

PRELIMINARY STATEMENT

Respondent South Florida Water Management District

applied to Respondent Department of Environmental Protection

for an environmental resource permit to construct a weir in

the Merritt Canal to be operated by the water management

district. On January 29, 1997, Respondent Department of

Environmental Protection issued a Notice of Intent to Issue

with several general and specific conditions. During the

hearing, the department attached new monitoring conditions to

the draft permit.

Petitioners timely challenged the intended agency action

and demanded a formal hearing. The administrative law judge

granted the petitions to intervene of both Intervenors.

The court reporter filed the final portion of the

transcript on February 2, 1998.

The administrative law judge specifically finds that,

based on his presentation of Petitioners' case, Mr. Simpson is

a qualified representative for the purpose of representing

other parties in administrative hearings before the Division

of Administrative Hearings. The administrative law judge

denies Mr. Shaw's post-hearing request for summary relief.

FINDINGS OF FACT

I. Proposed Permit

1. On April 17, 1996, Respondent South Florida Water

Management District (District) filed with Respondent

Department of Environmental Protection (DEP) an application

for the construction of a water-control structure in the

Merritt Canal. The stated purpose of the structure, which is

a weir, is to extend the hydroperiod of the Lucky Lake Strand.

2. The application states that the District is the owner

of a drainage easement covering the land proposed as the site

of the weir. According to the application, Collier County, in

which the Merritt Canal lies, originally held the drainage

easement. The District later adopted the Merritt Canal as a

"Works of the District," which transferred operational

responsibility for the canal from the County to the District.

(A sub-unit of the District, the Big Cypress Basin Board has

jurisdiction for District projects of the type involved in

this case. References to the District shall include the Big

Cypress Basin Board.)

3. The application requests a permit to construct an

adjustable sheet-pile weir within the 80-foot Merritt Canal

right-of-way. The application accurately describes the

Merritt Canal as a Class III waterbody that is not an

Outstanding Florida Water.

4. By Notice of Intent to Issue Environmental Resource

Permit dated January 29, 1997 (NOI), DEP proposed to issue an

environmental resource permit (ERP) to the District for the

construction of the Lucky Lake Strand Water Control Structure.

The structure would be an adjustable weir with operating

levels of 7.0 feet National Geodetic Vertical Datum (NGVD) in

the wet season and 9.5 feet NGVD in the dry season.

5. As stated in the NOI, the Merritt Canal is 12 miles

long and one of four main north-south canals within a larger

system of 183 miles of canals--all Class III waters--

constructed in the 1960s by Gulf American Land Corporation to

drain wetlands for development of the Southern Golden Gate

Estates area. These four north-south canals drain water south

through the Faka Union Canal and into Faka Union Bay, which is

part of the 10,000 Islands/Cape Romano Aquatic Preserve. The

preserve contains Class II Outstanding Florida Waters.

6. The NOI notes that the U.S. Fish and Wildlife Service

(FWS) and District entered into an agreement in September 1994

to construct two weirs in the Merritt Canal "to partially

restore historic hydroperiods into two major wetland features

within the federally owned lands of the USFWS Florida Panther

National Wildlife Refuge, Lucky Lake Strand and Stumpy Strand

(Class III Outstanding Florida Waters)." As stated in the

NOI, these federally owned wetlands constitute over 3000 acres

of cypress and mixed swamps, wet prairies, marshes, and ponds.

7. The NOI relates that FWS staff proposed the project

to counteract "subtle vegetational changes and accelerated

pond draw-downs [that] were taking place in the strands as a

result of shortened hydroperiods caused by a three-year

drought, I-75 widening activities, and subsequent canal

modifications."

8. The NOI correctly states that water in the wet season

historically flowed southerly through Stumpy Strand, Lucky

Lake Strand, and Picayune Strand, before entering the larger

Fakahatchee Strand. Lucky Lake Strand narrows to 1000 feet at

its south end, which is at Interstate 75 (I-75).

9. The NOI accurately asserts that the construction of

the Merritt Canal and the I-75 borrow canals combined to draw

down the upstream wetlands, thus reducing their hydroperiods.

The effect of the Merritt Canal is reportedly significant

because of its confluence with the southern tip of Lucky Lake

Strand.

10. The NOI discloses that the original agreement

between the District and FWS called for the construction of

two weirs south of I-75, one at the headwaters of the Merritt

Canal and another about 1800 feet downstream in the Merritt

Canal. However, the proposed permit eliminates one weir,

whose function was performed by plugs in the north I-75 borrow

canal, and relocates the remaining proposed weir about 3600

feet south of I-75, rather than immediately south of I-75,

reportedly because of difficulties in accessing the proposed

weir at I-75.

11. The NOI states that the Merritt Canal is within the

80-foot drainage easement originally acquired by Collier

County. The uplands adjacent to the weir are reportedly owned

by DEP.

12. The NOI describes the proposed weir as a sheet pile

weir with adjustable partitions. As proposed, during the wet

season, the District would start to open the gates at 7 feet

NGVD and start to close them at 6.5 feet NGVD. During the dry

season, the District would start to open the gates at 9.8 feet

NGVD and start to close them at 9.3 feet NGVD. Also, the

proposed permit would anticipate that the District would

dredge the canal to a trapezoidal cross-section having a

bottom elevation of -1.5 feet NGVD and a width of about 49

feet at the weir and transitioning to 20-foot bottom widths

upstream and downstream of the weir.

13. According to the NOI, the purpose of the proposed

weir is

to reduce over-drainage of the upstream

wetlands in Lucky Lake and Stumpy Strands

by extending the hydroperiod further into

the dry season. No increase in water

levels during the wet season is expected.

Although the historic extended hydroperiod

is not expected to be achieved, the weir

structure is expected to improve current

conditions to the upstream wetlands.

Holding back water in these wetlands [is]

also expected to improve water quality

downstream by removal of excess nutrient,

sediments, and chemicals. Wildlife values

are expected to be enhanced in preferred

waterfowl and wading bird habitat,

including areas for the endangered wood

stork and threatened bald eagle. Forage

areas are also expected to be improved for

white-tailed deer and other wildlife

species which are essential prey for the

endangered Florida panther. Aquifer

recharge is also expected as the ground

water reserves will be raised by raising

the canal water levels, while maintaining

the existing level of flood protection for

adjacent private landowners.

14. The NOI states that FWS will monitor post-

construction environmental conditions and will recommend to

the District adjustments to the weir elevations. The NOI

reports that the District will be the "main operator" of the

weir to adjust elevations to maintain flood control for

adjacent lands. The NOI adds:

The project was designed so as not to

decrease the peak discharge capacity in

the canal or increase flood stages in the

Upper Merritt Canal watershed. Hydraulic

modeling by the District indicates that

there will be no additional surface water

flooding to private property as a result

of the project, and the current level of

service will be maintained.

15. Based on this analysis, the NOI concludes that the

District has provided reasonable assurance that the proposed

activity will comply with Part IV, Chapter 373, Florida

Statutes, and the underlying rules, including Chapter 62-330

and Rules 40E-4.301 and 40E-4.302, Florida Administrative

Code. The NOI states that the District has demonstrated that

the activity is clearly in the public interest, pursuant to

Section 373.414(1)(a), Florida Statutes.

16. The proposed permit conforms to the NOI's

description. Specific Condition 13 sets the fixed crest of

the proposed weir at 4.5 feet NGVD and the width of the weir

at 48 feet.

17. Although the proposed permit is nowhere explicitly

conditioned on a successful wetland enhancement project,

Specific Condition 12 states that "the" wetland enhancement

project shall be considered successful if, after five years,

Lucky Lake Strand and Stumpy Strand display wetland-

appropriate vegetation and the "viability of adjacent upland

sites [is] not negatively impacted by increased ground water

or surface water levels resulting from the authorized

project."

18. Specific Condition 17 requires the District to

document the operation of the gates and notify DEP, within

three days, whenever any of the permitted elevations are

exceeded. Annually, the District must supply DEP detailed

data and analysis of the operational history of the weir,

including "reasons for going to nonstandard operation and a

narrative description of the effectiveness of initiating the

nonstandard operation to include areas not flooded (or

flooded, if applicable) and other associated impacts."

19. During the final hearing, the District proposed, and

DEP approved, a modification of Specific Condition 18. As

modified, Specific Condition 18 requires the District to

"monitor the effects of the operation" of the weir, pursuant

to the revised monitoring plan incorporated by reference into

this condition.

20. The revised monitoring plan, which is dated

November 12, 1997, alters the original monitoring plan by

adding two sites for the installation of water-table wells.

One of the new sites (Site A) is 1200 feet north of the weir,

and the other new site (Site B) is 1200 feet north and 2000

feet west of the weir. These are the only water-table

monitoring devices.

21. Five other sites are surface-water monitoring sites.

Three of the these sites are in the Merritt Canal: one

immediately upstream of the weir, one immediately downstream

of the weir, and one farther upstream at I-75. The other two

surface-water monitoring sites are farther upstream. One is

in Lucky Lake about 1.75 miles north of the weir, and the

other is about three miles northeast of Lucky Lake.

22. Three other sites are rainfall-monitoring sites.

Two rainfall-monitoring sites are north of the weir. The site

just north of I-75 is at the Ford Motor Company test track,

which is immediately west of Lucky Lake and Stumpy Strands,

and the site more directly north of the Merritt Canal is about

ten miles north of I-75.

23. Specific Condition 18 states the frequency with

which someone (presumably a District employee or contractor)

is to collect the data from these 10 monitoring sites, but

contains no performance criteria. The monitoring plan thus

commits the District to collecting data, but not to analyzing

the data, nor, more importantly, taking specified actions when

certain performance parameters are exceeded.

24. Neither the revised monitoring plan nor the

application in any way commits the District to using the data

collected from the revised monitoring plan to develop a set of

criteria, based on rainfall amounts, groundwater levels, and

surface water levels, to fine-tune the operation of the gates

so as not to exacerbate present flooding. Nothing in the

revised monitoring plan or the application suggests that the

District will use the data collected from the revised

monitoring plan to identify more clearly the relationships

between storm events and water levels to understand better the

relationship between flooding, on the one hand, and the

existence of the proposed weir and the operation of its gates.

II. Faka Union Canal Watershed and

Southern Golden Gate Estates

25. What is now known as the Faka Union Canal Watershed

historically covered about 234 square miles. It ran from an

area about four miles north of what is now known as Immokalee

Road south in a widening expanse that approached 12 miles at

what is now U.S. Route 41. It then ran south until it emptied

into the Gulf of Mexico at Faka Union Bay in what is now the

Cape Romano Ten Thousand Islands State Aquatic Preserve east

of Marco Island.

26. Land alterations due to road and canal construction

and urban and agricultural development eventually reduced the

Faka Union Canal Watershed to about 189 square miles. Most

noticeably, these changes narrowed the drainage area at U. S.

Route 41 from almost 12 miles to little more than the width of

the Faka Union Canal.

27. The Faka Union Canal Watershed is characterized by

low relief and poorly defined drainage patterns. At the north

boundary of the watershed, which now ends at Immokalee Road,

the elevation reaches 24 feet NGVD. Twenty-eight miles to the

south, at the outlet of the basin, the elevation is two feet

NGVD. The water flows generally in a southwest direction.

28. Historically, water ran slowly through the watershed

in sheetflow several miles wide and a few inches to a few feet

deep. Drainage concentrated in slightly lower sloughs and

strands, which generally dried out in the dry season.

Historically, the watershed featured flat, swampy lands

containing cypress trees, islands of pine forests, and wet and

dry prairies. Prior to development, much of the watershed

remained inundated by several feet of water during the five-

month wet season (roughly from mid-May through mid-October).

In this undisturbed state, the prominent features of the

watershed were the storage of runoff in depressional areas,

attenuated peak flows, and a longer hydroperiod into the dry

season.

29. In the early 1960s, Gulf American Land Corporation

subdivided a 173 square-mile area in Collier County into many

thousands of lots as small as 1.25 acres. The development was

Golden Gate Estates. The portion of Golden Gate Estates south

of I-75 is known as Southern Golden Gate Estates. Golden Gate

Estates is west of the Merritt Canal.

30. Gulf American's purpose in dredging the 183-mile

canal system was to allow it to market as land, available for

continuous occupation, subdivided lots superimposed over an

area that was land during the dry months and water during the

wet months. To achieve this objective, Gulf American Land

Corporation constructed one group of canals that drains to the

west and another group of canals drains to the south into the

Faka Union Canal. Gulf American dredged the canals draining

to the south, which form the Faka Union Canal System, from

1968 through 1971.

31. Four north-south canals spaced two miles apart drain

Southern Golden Gate Estates and the portion of the Faka Union

Canal Watershed north of I-75. From west to east, the canals

are the Miller Canal, Faka Union Canal, Merritt Canal, and

Prairie Canal. Only the two westerly canals run north of

I -75. The Miller Canal extends almost seven miles north of

I -75, and the Faka Union Canal extends about 14 miles north of

I-75. The Merritt Canal starts in the immediate vicinity of

I-75, and the Prairie Canal starts about two miles south of

I -75.

32. The average excavated depth of the four canals is

about ten feet from the top of the bank to the bottom of the

channel. Given the relatively close proximity of the water

table to the surface in this area, excavation to these depths

thus established a direct hydraulic connection with the

surficial aquifer. The canals are large, ranging from 45 to

over 200 feet wide.

33. Although unable to convey without flooding the water

from even a ten-year storm event, which is the level of

service standard set by Collier County for Southern Golden

Gate Estates, the Faka Union Canal system has nonetheless

severely impacted the water resources of Collier County.

According to the Hydrologic Restoration of Southern Golden

Gate Estates, prepared in February 1996 by the Big Cypress

Basin Board (Southern Golden Gate Estates Restoration Plan):

. . . Construction of the canals has led

to both increased volumes and rates of

runoff from the watershed which has had

lasting effects on the area's water

supply, vegetation, wildlife, and coastal

estuaries.

The canals intercept large volumes of

surface and subsurface flow and quickly

divert them to the Faka Union Bay and the

Ten Thousand Island Estuary of the Gulf of

Mexico resulting in less surface water

available for storage. Since groundwater

recharge is achieved primarily through

infiltration from surface detention

storage, reduced groundwater recharge

threatens both groundwater supply for the

region and the natural barrier to salt

water intrusion. Continued overdrainage

has caused an eventual lowering of the

groundwater table. This has caused

vegetation to change from wetland dominant

to transitional and upland systems with

invasive exotic species. The extreme dry

conditions caused by overdrainage have

resulted in more frequent and more intense

wildfires with a greater destructive

impact on vegetation.

The increased runoff rate has had severe

effects on the receiving estuaries.

Historically, the estuaries would receive

broad, slow moving sheets of water that

were capable of carrying essential

nutrients but not high sediment loads.

This has been replaced with point loads of

freshwater at the Faka Union Canal outlet

that push salinity levels down and result

in freshwater discharge shocks throughout

the Ten Thousand Island Estuary. The

increased runoff rate drains the area

quickly and does not allow the

hydroperiods necessary to sustain wetland

vegetation. . . .

Southern Golden Gate Estates Restoration Plan, pages

8-9.

34. The major roadway affecting the Faka Union Canal

Watershed is State Road 84, which was a two-lane road

constructed in 1966. In 1990, construction was completed

transforming State Road 84 into four-lane I-75. These road

projects have hastened drainage of the lands to the north of

I-75 and east of the Faka Union Canal.

35. The land north of the Merritt Canal is largely

undeveloped. If one were to extend the Merritt Canal due

north of I-75, it would run through the middle of Lucky Lake

Strand and much of Stumpy Strand, which is immediately to the

north of Lucky Lake Strand. Agricultural land owned by

Collier Enterprises is just north of the Ford Motor Company

test track and immediately west of Lucky Lake Strand.

Agricultural land owned by Baron Collier Company is

immediately north of Stumpy Strand.

36. This imaginary extension of Merritt Canal would mark

the west boundary of the Florida Panther National Wildlife

Refuge, which was established in June 1989. The Florida

Panther National Wildlife Refuge constitutes 26,000 relatively

undisturbed acres immediately north of I-75. Intervenor

Clifford Fort owns property south of the refuge on the south

side of I-75.

37. The Florida Panther National Wildlife Refuge

features mostly wetlands, oak hammocks, pine flatwoods, and

prairies. The refuge receives runoff from stormwater and

possibly agricultural pumping of the water table from the

adjacent farmland. In addition to draining into the

headwaters of the Merritt Canal near the southwest corner of

the refuge, the refuge also drains into the northerly borrow

canal running along the north side of I-75. In the vicinity

of the Merritt Canal, the four borrow canals running along the

north and south sides of I-75, on both sides of the Merritt

Canal, drain in the direction of the Merritt Canal.

38. Listed species using the Florida Panther National

Wildlife Refuge include the Florida panther, Florida black

bear, wood stork, roseate spoonbill, limpkin, and Eastern

Indigo snake. In October 1995, an inordinate amount of rain

fell in the area. Attracted by the increased water depths,

which more closely approximated historic conditions, 75 wood

storks nested in the Lucky Lake Strand; in drier years, wood

storks do not nest in the strand.

39. Lucky Lake Strand occupies the southwest corner of

the Florida Panther National Wildlife Refuge. Lucky Lake and

two other ponds are present in this area. When full, Lucky

Lake and one of the ponds are about 50 meters wide, and the

third pond is about half of this width. During the dry

season, a person can throw a stone across any of the ponds.

40. Historically, Lucky Lake and Stumpy strands passed

surface water into the Picayune Strand, which is west of the

Merritt Canal and south of I-75, from which the water ran into

the Fakahatchee Strand. Lucky Lake Strand presently narrows

to about 1000 feet at I-75.

41. The hydrologic connection between the outlet of

Lucky Lake Strand and the headwaters of the Merritt Canal has

contributed significantly to the overdrainage of these two

strands, which occupy a significant area within the federal

refuge. The FWS wildlife biologist stationed at the Florida

Panther National Wildlife Refuge reported in a habitat

assessment report prepared in August 1996 that four ponds in

the strand dried out by December so that they could not

sustain fish or provide feeding habitat for birds.

III. Permitting Criteria

A. Public Health, Safety, or Welfare or Others' Property

42. One of the main disputes between the parties is the

affect of the proposed weir on flooding. This case is largely

about flooding or, more generally, the amount of water to be

stored for a specified period of time. Petitioners and

Intervenors fear that the District's effort will cause

flooding to areas south of I-75 and east and west of the

Merritt Canal.

43. Occupying property within a vast area whose natural

drainage patterns have been greatly disrupted, Petitioners and

Intervenors justifiably fear the ravages of flood and fire.

Although this area was undoubtedly subject to these hazards

prior to man's alteration of the natural landscape, large-

scale alterations to natural drainage in Southwest Florida

have artificially heightened the risk presented by these

natural hazards.

44. Destructive flooding follows the inhabitation of

areas historically devoted to the storage of considerable

volumes of water; the flooding is exacerbated where, as here,

natural drainage features have been replaced by artificial

facilities that are inadequate for both the natural flows and

the new, artificial flows generated by development. Although

inadequate for the natural and artificial flows generated by

even design storm events, the artificial drainage facilities

nevertheless change historic drainage rates, accelerating the

rate and volume of natural drainage and shortening the

hydroperiod. In this manner, the artificial drainage

facilities contribute to the desiccation of previously

saturated soils and foster conditions suitable for dangerous

fires.

45. Initially, Petitioners and Intervenors contend that

the District seeks approval of the proposed weir as an

indirect means of implementing the Southern Golden Gate

Estates Rehydration Plan. Little evidence supports this

concern.

46. The Southern Golden Gate Estates Rehydration Plan

outlines several alternatives for the proposed rehydration of

Southern Golden Gate Estates. The preferred alternative does

not call for a weir at the proposed location. The purpose of

the proposed weir is to rehydrate an area north of the

Southern Golden Gate Estates. As discussed below, the role of

the proposed weir in rehydrating Southern Golden Gate Estates

appears insubstantial to the point of nonexistent.

47. Focusing on the location of the proposed weir over

half of a mile downstream from the southernmost part of the

area intended to be rehydrated, Petitioners and Intervenors

dispute the stated purpose of the project, focusing on the

District's earlier relocation of the proposed weir from

positions just north and then just south of I-75 to its

present position a half-mile farther to the south.

48. The District did nothing to allay this concern of

Petitioners and Intervenors when its employees could not

provide a reasonably detailed explanation of the process by

which someone moved the proposed site to the south. From the

District's evidence, one would infer that the decision to

relocate the proposed weir to the south spontaneously emerged,

without human sponsor, in the course of bureaucratic

decisionmaking.

49. The District asserted that the northerly sites were

impractical due to access problems. However, the District

made little, if any, real effort to see if the Department of

Transportation would allow access to these more northerly

sites--one of which the District might be able to access

without the consent of the Department of Transportation.

50. The record does not reveal why the District

relocated the proposed weir to its present location,

considerably south of its initial two locations at I-75.

Again, though, the evidence does not support the contention of

Petitioners and Intervenors that the relocation decision was

part of a private plan among District employees to incorporate

the proposed weir as part of a more ambitious project to

rehydrate Southern Golden Gate Estates.

51. Nor does the evidence establish, as Petitioners and

Intervenors contend, that the relocation decision was driven

by the concerns of three influential landholders to the north

of I-75--Collier Enterprises, Barron Collier Company, and Ford

Motor Company. These three landholders approved the proposed

weir in its present location over a half-mile to the south of

its original locations and may have expressed concern that the

original locations at I-75 would unreasonably raise the risk

of flooding their land and business and agricultural

activities to the north of I-75.

52. If the District's real reason for relocating the

proposed weir was due to objections from these landowners to

the north of I-75, this reason would not itself help

Petitioners and Intervenors. If the District acceded to the

demands of these landowners to the north, it does not

necessarily follow that the District lacked confidence in its

flood calculations. A relocation decision under these

circumstances would have as likely reflected political, as

scientific, concerns.

53. Additionally, if the District moved the proposed

weir at the insistence or suggestion of the landowners to the

north, any flooding concerns voiced by these landowners raise

different issues from the flooding concerns raised by

Petitioners and Intervenors. Owners of land immediately to

the north and west of the federal refuge are more directly

within the area of the intended effects than are Petitioners

and Intervenors.

54. More substantially, Petitioners and Intervenors

claim that the proposed activity is so negligently designed or

will be so negligently operated as to result in heightened and

more frequent flooding of areas to the west and east of the

proposed weir.

55. The District's record in operating weirs in Collier

County is not flawless. In recent years, the District

constructed and maintained a weir with unlawfully high gates

and did not correct the noncompliant water-control structure

for several months after first learning of the violation.

However, this appears to have been an isolated violation.

56. The division of responsibility between the District

and Collier County for the maintenance of drainage canals is

based on whether the canal is a primary or secondary drainage

facility. The District has assumed responsibility for all of

the primary drainage facilities in Collier County.

Surprisingly, though, the record reveals no master map or

index of the primary drainage facilities and at least the

larger nonprimary drainage facilities.

57. However, Petitioners and Intervenors failed to show

that any confusion concerning maintenance responsibilities

that may exist between the District and Collier County would

appreciably raise the probabilities that the District would

operate the proposed weir in such a way as to exacerbate

present flooding concerns. The District and Collier County

agree that the District has jurisdiction over the Merritt

Canal. Petitioners and Intervenors have also failed to show

that any confusion concerning secondary-drainage contributions

that may exist between the District and Collier County would

have a substantial impact on the successful operation of the

proposed weir.

58. The most significant claim raised by Petitioners and

Intervenors asserts that the District failed to provide

reasonable assurance that the proposed weir would not

exacerbate flooding. Although the weir gates would be closed

only during the dry season, the proposed activity requires

analysis of the risk of heightened water elevations upstream

of the proposed weir. In theory, flooding could result from

the effects of the weir even when the gates are open, as well

as the possibility of an extreme storm event during the dry

season.

59. Expert witnesses on both sides clashed over whether

the design of the proposed weir was sufficient not to

exacerbate existing levels, rates, and frequencies of flooding

of adjacent uplands. The crucial feature over which the

experts disagreed was the spoil banks running along the canal.

60. When the Merritt Canal was constructed, the spoil

was dumped along the banks. In the ensuing years, vegetation

colonized and stabilized the spoil banks, which now function

as levees.

61. The expert witness called by Petitioners and

Intervenors disregarded the spoil banks in his calculations.

His lack of confidence in the opposing expert witness's use of

top-of-bank elevations was partly justified for the reasons

stated below. Although a minor point, part of the argument of

Petitioners and Intervenors' expert witness proved too much by

asserting that levees cannot maintain water levels higher

inside the levee than the existing ground elevation outside

the levee.

62. On the other hand, in showing that the proposed weir

would not exacerbate flooding, the District's expert witness

relied, not entirely justifiably, on the top-of-bank

elevations. The District took only spot elevations of the

spoil bank and then assumed that these elevations prevailed

along the entire 3600 feet of canal upstream of the weir. The

District did not inspect the upstream banks for unpermitted

culverts, of which at least one was discovered during the

lengthy hearing in this case.

63. There is a possibility of material differences in

elevations along the spoil banks. These spoil banks were not

constructed to a specified elevation; they were an excavation

byproduct that was haphazardly deposited beside the excavated

canal. Additionally, the record suggests that this general

area has been the site of unpermitted works, such as the

installation of a culvert and creation of unpermitted canal

plugs.

64. In the months over which the hearing took place,

Petitioners and Intervenors alertly found a culvert breaching

the spoil bank upstream of the proposed weir. At least one of

their representatives demonstrated superior familiarity with

the spoil bank over the familiarity demonstrated by the

District's representatives. It is a fair inference that, if

the spoil bank was substantially missing at any point upstream

of the proposed weir, Petitioners and Intervenors would have

brought such evidence to the hearing. The absence of such

evidence, coupled with the reasonable inferences that may be

drawn from the concededly more cursory investigation of the

site by the District, precludes a finding that the spoil bank

is substantially missing at any material point so as to

warrant the use of ground elevations, as used by the expert

witness called by Petitioners and Intervenors. At best, from

the perspective of Petitioners and Intervenors, the record

supports the finding that the spoil banks may not be as

continuously as high as the District posits, but they are not

nearly as low (i.e., nonexistent) at any point as Petitioners

and Intervenors contend.

65. The two experts also disagreed over two subordinate

inputs used in running the flood calculations. The expert

called by Petitioners and Intervenors claimed that initial

tailwaters (i.e., water elevations downstream of the weir) in

excess of 8.53 feet were appropriate. Although the canal has

experienced historically higher tailwaters than 8.53 feet, the

expert did not explain adequately why such higher tailwaters

should be used in running the model, especially since flood

calculations are not used to predict flooding conditions in

all storms, such as a 1000-year storm. Absent a showing that

tailwater in excess of 8.53 feet would be present at the

relevant time preceding or during the design storm event, the

expert called by Petitioners and Intervenors failed to show

why the District's tailwater input was unreasonable.

66. On the other hand, the District's expert claimed

that the model required an adjustment to the friction factor

or Manning's N coefficient. This adjustment, which decreased

the friction factor by an order of magnitude, approximated a

bottom that was many times smoother than the actual bottom of

the Merritt Canal. The District's expert did not explain

adequately why the lower friction factor should be used in

running the model, and he frankly did not demonstrate the same

familiarity with this friction factor as did the expert called

by Petitioners and Intervenors. The most likely inference is

that the District's expert erred in making this adjustment.

67. There was another controversy between the parties

regarding a subordinate input for the flooding calculations.

Petitioners and Intervenors raised the possibility that

agricultural discharges from the Collier properties adjacent

to the federal refuge, which the District ignored in its

calculations, might further undermine any assurances as to

flooding. This could have been useful information if

developed in the record, but the record permits no basis to

quantify the value of this additional discharge or ascertain

its timing relative to wet and dry seasons and storm events,

if in fact this agricultural discharge takes place at all.

Also, offsetting any such discharge would be two factors: the

District ran its calculations assuming a runoff rate 25

percent greater than that appropriately used by the Florida

Department of Transportation for modeling the design storm

event, and the District ignored the plugs in the I-75 borrow

canals, which attenuate the runoff into the Merritt Canal.

68. Although Petitioners and Intervenors incorrectly

inputted ground elevation in place of the top-of-bank

elevation--when the best elevation is somewhere in between

these two values--their expert's calculations are useful for

illustrating a scenario that, for this reason, exceeds the

worst-case scenario. Again, this is an illustration of a

scenario that predicts greater flooding than reasonably should

be predicted because, in actuality, the restraining elevation

is higher than ground elevation.

69. Using the 8.53-feet initial value for tailwater,

Petitioners' Exhibit 27 illustrates the different water

elevations resulting from running the model with and without

the excessive reduction of the friction factor. Petitioners

Exhibit 27 illustrates the effect of the design storm on

upstream water elevations with the gates open. Petitioners

Exhibit 27 ignores the spoil banks and instead uses prevailing

ground elevations.

70. At the site of the proposed weir, the canal bottom

is at about -1.5 feet NGVD. The proposed weir would add fixed

barriers up to an elevation of 5.0 feet NGVD; the adjustable

gates would, when closed, extend the barrier from 5.0 feet

NGVD to 9.5 feet NGVD. Approximate existing ground elevation

averages about 10 feet NGVD downstream of I-75, with one dip

to below 9 feet NGVD about 600 feet downstream of I-75. For

about 6000 feet upstream of I-75, where there is no spoil bank

whatsoever, the average ground elevation, outside of the

slough, is about 13 feet. The slough bottom in this area

gently slopes from about 9 feet NGVD to 10 feet NGVD.

71. Ignoring the spoil bank, Petitioners Exhibit 27

predicts flooding in two major areas in the design storm

event, even with the gates open. One of these is about 300

feet long, starting about 400 feet downstream of I -75. The

other is at least 300 feet long, starting near the northern

extreme of the modeled area and running off the modeled area.

The District did not survey in detail the spoil bank along the

300 feet downstream of I-75. There is no spoil bank upstream

of I-75 because there is no dredged canal.

72. The water elevation about 400 feet downstream of

I -75 would be almost one foot greater than the ground

elevation. The water elevation about 6000 feet upstream of

I -75 will be as much as half of a foot greater than the ground

elevation. At the more downstream point, the actual water

elevation would exceed the District's projection by nearly

three-quarter of one foot. At the more upstream point, the

actual water elevation would exceed the District's projection

by over 1.5 feet.

73. Although the record could have been better developed

on this important point, there is reasonable assurance that

the existing spoil-bank elevations are sufficient to contain

these flood elevations predicted by the expert called by

Petitioners and Intervenors.

74. Petitioners and Intervenors claimed that the

District could achieve its stated purpose of extending the

hydroperiod in the Florida Panther National Wildlife Refuge

without increasing the risk or extent of flooding of adjacent

uplands. Petitioners and Intervenors suggested that the

District repair an existing plug in the Merritt Canal just

south of I-75. (This "plug" is actually the original ground

surface, which evidently was undisturbed during the

construction of I-75. Given the excavation of canals on both

sides of what is now a narrow strip of earth, the land

resembles a plug, and this recommended order refers to it as a

plug, although this term is descriptive only of the feature's

present appearance, not its method of creation.)

75. There are actually six plugs--again, in the broad

sense of the word--in the vicinity of the junction of the

Merritt Canal and I-75. Two plugs interrupt the flow into the

Merritt Canal of the borrow canals to the north of I-75. Two

plugs likewise interrupt the flow into the Merritt Canal of

the borrow canals to the south of I-75. The last two plugs

are in the Merritt Canal, a few feet north and south of I-75.

76. Repairing the plug immediately south of I-75 would

raise the water elevation by about 1.3 feet under the I-75

bridge. By about 2000 feet upstream of I-75, there is no

significant difference between the water elevation using the

model of Petitioners and Intervenors' expert for the proposed

weir 3600 feet downstream of I-75 and the water elevation for

the proposed plug repair just south of I-75. Repairing the

plugs would have reduced the water elevation downstream of I-

75 by less than one half of a foot.

77. Petitioners, Intervenors, and their expert have

proposed a promising alternative to the proposed weir. The

alternative appears to serve the stated purpose of the

proposed activity at least as well as the proposed weir would,

if not somewhat better due to its closer proximity to the

targeted federal refuge, and the alternative project would

cost much less to construct, maintain, and operate. The

restorative nature of the work would probably relieve the

District of the necessity of obtaining a permit. Perhaps the

prospect of such work might motivate other state and federal

agencies to grant the District access to the area at I-75 to

build the weir at one of its first two locations.

78. However, the issue is whether the District has

provided reasonable assurance for the activity that it has

proposed. As to flooding, the District has provided

reasonable assurance that the proposed activity will not

exacerbate flooding during the design storm events or even

more severe storm events.

79. Even assuming an absence of reasonable assurance as

to flooding, the first criterion requires consideration of

whether the proposed activity would adversely affect the

public health, safety, and welfare or the property of others.

Extending the hydroperiod of the federal refuge protects the

property of others by reducing the period of time that the

turf is dried out. This provides a wide range of

environmental protection, including protection against the

risk of fire caused by excessive drainage, for the federal

refuge and other property in the area.

80. Retarding the artificially high rate of drainage

will improve water quality in at least two respects. The

proposed weir will retard and reduce the nutrients conveyed

down the canal and into the estuary into which it eventually

empties. The proposed weir will also tend to restore somewhat

the rate and timing of historic freshwater inputs on which the

viability of the estuary and its inhabitants depends.

Concerns about public health, safety, and welfare, as well as

the property of others, cannot be severed from these

broadscale environmental benefits to be derived from the

proposed activity. Public health concerns are tied to these

considerations.

81. Thus, even if the District had failed to provide

reasonable assurance as to flooding alone, the District has

provided reasonable assurance that, on balance, the proposed

weir will not adversely affect the matters set forth in the

first criterion.

B. Conservation of Fish and Wildlife, Including

Endangered or Threatened Species, or Their Habitats

82. The proposed weir will serve the conservation of a

wide range of flora and fauna, as well as their wetlands

habitat, within the targeted federal refuge. These species

include listed species. The evidence does not support a

finding that extending the hydroperiod of the federal refuge

would in any way disturb the Florida panther.

C. Navigation, Flow of Water, or Harmful Erosion

or Shoaling

83. The proposed weir will have not adversely affect

navigation or the flow of water within the canal, and it will

not cause erosion or shoaling.

D. Fishing or Recreational Values or Marine

Productivity in the Vicinity of the Activity

84. The proposed weir will not adversely affect fishing

or recreational values or marine productivity in the vicinity

of the proposed weir. To the contrary, the proposed weir will

enhance these values in the immediate vicinity of the proposed

weir and downstream at the estuary at the mouth of the Merritt

Canal.

E. Temporary or Permanent Nature

85. The proposed weir will be of a permanent nature.

F. Significant Historic and Archaeological Resources

86. The record provides no basis for a finding that the

proposed weir jeopardizes significant historic and

archaeological resources.

G. Current Condition and Relative Value of Functions

of Areas Affected by the Proposed Activity

87. The federal refuge is functioning well

environmentally, despite the adverse impact of dramatic

disruptions of the natural drainage regime. The value of

these functions is high. Likewise, the receiving estuarine

waters are functioning well, despite the adverse impact of

dramatic disruptions of the natural drainage regime.

Extending the hydroperiod of the federal refuge will partially

offset these historic disruptions. Thus, the proposed weir

will assist in the functioning of natural systems that are now

functioning well, but could use some help.

H. Public Interest

88. The proposed weir is not in an Outstanding Florida

Water. Thus, the question is whether the proposed activity is

not contrary to the public interest. The District has

provided reasonable assurances as to the preceding seven

criteria sufficient to demonstrate that, on balance, the

proposed activity is not contrary to the public interest.

I. Cumulative Impacts

89. There is no evidence that the proposed weir will

cause any adverse cumulative impacts upon wetlands or surface

waters.

J. Other Criteria

90. The District has proved that the proposed weir would

not violate any water quality standards. To the contrary, any

effect from the proposed activity would be to improve water

quality, especially downstream at the estuary. The

restoration of conditions more typical of historic drainage

would allow more nutrients to be captured upstream and would

tend to restore the historic timing and volume of freshwater

inputs into the estuary.

91. For the reasons set forth above, the District has

also provided reasonable assurance that the proposed activity

meets the 11 criteria contained in Rule 40E-4.301, which

largely duplicate the seven criteria discussed above, and the

relevant provisions of the Basis of Review. It is true that

the monitoring provisions are largely illusory because they

provide no quantifiable parameter beyond which the District

must take specified action. In other words, at best, the

monitoring provisions assure that the District will collect

post-operational flooding data, but they do not promise that

the District will take any action if certain levels of

flooding take place. However, the monitoring provisions are

of little importance given the factual findings concerning

flooding, as discussed above, and the legal requirements of

the Basis of Review, as discussed below.

CONCLUSIONS OF LAW

92. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes, except for references to Sections of the District's

Basis of Review (BOR). All references to Rules are to the

Florida Administrative Code.)

93. Section 373.413(1) provides that the District or DEP

may require permits and impose "reasonable conditions" that

are "necessary to assure" that the construction or alteration

of any stormwater management system or dam, among other

activities, "will comply with the provisions of this part and

applicable rules . . . and will not be harmful to the water

resources of the district."

94. Section 373.414(1) adds that the District or DEP

shall require an applicant to provide "reasonable assurance"

that the proposed activity will not violate state water

quality standards and is not "contrary to the public

interest." If the proposed activity "significantly degrades

or is within an Outstanding Florida Water," the applicant must

provide "reasonable assurance" that the proposed activity will

be "clearly in the public interest."

95. Pursuant to Section 373.414(1)(a), the public-

interest determination requires the issuing agency to

"consider and balance" seven criteria:

1. Whether the activity will adversely

affect the public health, safety, or

welfare or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or

threatened species, or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values

or marine productivity in the vicinity of

the activity;

5. Whether the activity will be of

temporary or permanent nature;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061; and

7. The current condition and relative

value of functions being performed by

areas affected by the proposed activity.

96. Section 373.414(1)(b) adds that, if an applicant is

unable to meet these seven criteria, then the District or DEP

shall consider mitigation measures. Section 373.414(8)

requires that the District or DEP "consider the cumulative

impacts upon surface water and wetlands" when deciding whether

to issue a permit. Rule 40E-4.302 restates the seven criteria

stated in Section 373.414(1)(a) and otherwise tracks the

statutory requirements.

97. Rule 40E-4.301 identifies eleven criteria that

largely, if not entirely, overlap the seven criteria

identified in Section 373.414(1)(a) and Rule 40E-4.302. The

application and purpose of Rule 40E-4.301 are unclear. For

instance, in applying Rule 40E-4.301, it is unclear whether

the factfinder should balance the eleven criteria; unlike Rule

40E-4.302 and Section 373.414(1)(a), Rule 40E-4.301 does not

expressly so provide. More importantly, if the two sets of

criteria are not wholly duplicative, the District's rules fail

to explain what happens when a proposed activity meets the

seven criteria identified in the statute and Rule 40E-4.302,

but fails to meet the eleven criteria identified in

Rule 40E -4.301.

98. Rule 40E-4.302(3) incorporates the District's Basis

of Review in the determination whether an applicant has

provided the reasonable assurances required by Rules 40E-4.301

and 40E-4.302.

99. In this case, the District is the applicant, not the

permitting agency; DEP is the permitting agency. In

Rules 62 -330.100(1) and 62-330.200(4), DEP adopts various

rules of the water management districts for the issuance of

ERPs, including the relevant rules already discussed. In

Rule 62 -330.200(4)(b), DEP adopted the District's Basis of

Review (BOR), except for Sections 1.0 through 3.1.2.9, 4.4,

and 4.5, and revised Section 4.2.2.

100. BOR Section 4.0 states that the District's

permitting goal is "no net loss in wetland and other surface

water functions." (Although a DEP rule converts all

references to the "District" to "DEP," this recommended order

retains the actual language of the BOR.) BOR Section 4.0

provides that the District requires permits so it can

"conserve the beneficial functions of . . . wetlands or other

surface waters."

101. BOR Subsection 4.2.1 states, in part:

The degree of impact to wetland and other

surface water functions caused by a

proposed system, whether the impact to

these functions can be mitigated and the

practicability of design modifications for

the site, as well as alignment

alternatives for a proposed linear system,

which could eliminate or reduce impacts to

these functions, are all factors in

determining whether an application will be

approved by the District. Design

modifications to reduce or eliminate

adverse impacts must be explored, as

described in subsection 4.2.1.1. Any

adverse impacts remaining after

practicable design modifications have been

implemented may be offset by mitigation as

described in subsections 4.3-4.3.8. . . .

To receive District approval, a system

cannot cause a net adverse impact on

wetland functions and other surface water

functions which is not offset by

mitigation.

102. The preceding section outlines a two-step process

of minimization and mitigation. However, according to BOR

Subsection 4.2.1.1, the District will not require project

modifications to achieve minimization unless the proposed

activity fails to meet the requirements of Subsections 4.2.2

through 4.2.3.7.

103. Subsection 4.2.2 requires that an applicant provide

reasonable assurance that a proposed activity will not impact

the values of wetlands and other surface water functions so as

to impact adversely the abundance, diversity, or habitat of

fish, wildlife, and listed species.

104. Subsection 4.2.2.4 requires that an applicant

provide reasonable assurance that the regulated activity will

not change the hydroperiod or a wetland or other surface

water, so as to affect adversely wetland functions or other

surface water functions.

105. Subsection 4.2.2.4(b) addresses proposed activities

that may increase the "depth, duration, or frequency of

inundation through changing the rate or method of discharge or

water to wetlands or other surface waters or by impounding

water in wetlands or other surface waters." Applicants for

permits for such activities must provide reasonable assurance

that the activities will not "adversely affect the functioning

of the specific wetland or other surface water subject to the

increased discharge or water level."

106. Subsection 4.2.2.4(c) requires that an applicant

proposing an activity that "could have the effect of altering

water levels in wetlands or surface waters" " shall be

required . . . to monitor the wetland or other surface waters

to demonstrate that such alterations has not resulted in

adverse impacts . . . or calibrate the system to prevent

adverse impacts." This subsection states: "Monitoring

parameters, methods, schedules, and reporting requirements

shall be specified in permit conditions."

107. Subsection 4.2.3 addresses the seven statutory

criteria detailing the public-interest test.

108. Subsection 4.2.3.1 states that, in balancing the

seven criteria, the District must determine whether the

proposed activity will cause, among other things, flooding and

environmental impacts to the property of others, although not

with respect to property values or taxes.

Subsection 4.2.3.1(c) adds, as to flooding: "There is at least

a neutral factor in the public interest balance with respect

to the potential for causing or alleviating flooding problems

if the applicant meets the water quantity criteria in section

six of this Basis of Review."

109. BOR Section 6 addresses water quantity criteria.

Subsection 6.2 provides that the offsite discharge rate may

not cause "adverse impacts to existing offsite properties" and

is limited to "historic discharge rates," previously permitted

rates, or rates specified in District criteria stated in an

appendix for various canals. Subsection 6.3 identifies the

design storm as the three-day, 25-year storm.

110. Historically, the land in question was inundated

during the wet season, so Section 6 is satisfied. Thus, by

operation of the BOR, the presumption is that the proposed

activity is no worse than neutral as to flooding. In fact,

though, the District has provided reasonable assurance as to

flooding. Because the proposed activity satisfies the

requirements of BOR Subsections 4.2.2 through 4.2.3.7, the

District is not required to consider alternative alignments to

this proposed linear system.

111. The proposed activity satisfies the other factors

mentioned by the BOR. As found above, the monitoring

provisions of the proposed permit, although largely illusory,

nonetheless satisfy the BOR requirements concerning

monitoring, as these requirements themselves do not require

the imposition of enforceable performance standards in the

monitoring provisions.

112. Based on the findings set forth above, the District

has provided reasonable assurance that, on balance, the

proposed activity meets the seven criteria identified in the

statute and Rule 40E-4.302.

113. Based on the findings set forth above, the District

has provided reasonable assurance that the proposed activity

meets the eleven criteria identified in Rule 40E-4.301.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental

Protection enter a final order granting the permit for the

construction of the proposed weir about 3600 feet south of

I -75 in the Merritt Canal.

DONE AND ENTERED this 25th day of June, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 1998.

COPIES FURNISHED:

James W. McDonald, Jr., Esquire

McDonald & Associates

Community Plaza, Suite 306

15600 Southwest 288th Street

Homestead, Florida 33030

A. Glenn Simpson

Qualified Representative

5961 22nd Avenue Southwest

Naples, Florida 34116

Marcy I. LaHart

Associate Attorney

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416-4680

Francine M. Ffolkes

Assistant General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Walter R. Shaw, Sr., pro se

1400 Northwest 62nd Avenue

Sunrise, Florida 33313-6138

Cliffort L. Fort

8410 Northwest 16th Street

Pembroke Pines, Florida 33024

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.