Loading...
Resolution 307-1985 RE,$Q)CUV:IQ)N NQ). 307 -1985 IDHfREA.$, the B~ARD Q)F CQ)UNV:Y CQ)mffiI,$,$IQ)NER,$ Q)F ffiQ)NRQ)E CQ)UNV:Y, FCQ)RIDA, has receivea an application from ~EQ)R~E KYCE ana, IDHEREA.$, in compliance with ,$tate ,$tatute, it is necessary as part of the permitting proceaure to reaa the following Biological Assessment into the Recorn, as follows: The applicant proposes the boxcut excavation of four new canals and the removal of plugs on two adjacent, existing boxcut canals to complete a man-made residential deadend canal system. The newly created canals will be 525 ft. long by 35 ft. wide, each with sixteen (16) 10 ft. wide x 35 ft. long boat slips. The excavated canals would be -4 ft. at MLW at the deadend and would increase to -6 ft. at MLW at the main canal connection. The canals to be connected will be backfilled from their present depth to a sloped depth of -4 ft. MLW at the deadend to -6 ft. MLW at their connection. Approximately 22,185 cubic yards will be excavated above MHW. The applicant states that all of this excavated material will be deposited on the applicant's adjacent property, to "be used to grade the adjacent upland and form a riprap shoreline above the rock level." No mention is made of the amount fo backfill to be placed in the existing canals. No mention is made of the techniques to be used for backfilling and bottom grading. The applicant claims that the adjacent property proposed for filling is upland. This area was previously low transition and submerged land which has now been drained and isolated, so as to exempt if from D.E.R. jurisdiction; though much of it displays standing water on a year-round basis. .... Dragline and saw will be utilized for excavation purposes. Bulldozers will be used to spread the fill. Turbidity screens will enclose all work areas, although specifics are not given on their placement or utilization. ' .., ~". ..., The purpose of this work is to provide 96 single-family waterfront residential home sites connecting to open water. The material excavated and deposited is primarily Miami oolite overlying deep Key Largo limestone, although there exists a small amount of area containing a shallow peat layer. Port Pine Heights Subdivision contains two separate existing deadend canal systems. The northernmost canal system is a relatively shallow system that was excavated between 1959 and 1962 and which is presently 30-40 percent developed. This canal system was constructed with a main canal opening into Pine Channel and extending approximately 300 feet inland with 11 perpendicular deadend branches. This system, in general, has areas that are well vegetated by seagrass and other areas that exhibit detrital accumulation with no visible benthic vegetation. To the south and still within Port Pine Heights Subdivision, the larger dead end canal system is found. It is this system that the applicant desires to enlarge by extending and connecting addition perpendicular dead end branches, of which 20 such branches now exist along the 6000'+ main canal. The present side, or branch canals have been and are proposed to be excavated across from each other on either side of the main canal. The six new canals are situated from 3500 to 5700 feet inland from the Resolution George Kyle Page Two main canal opening into Pine Channel, a natural body of water. The canals within this system were excavated from 1965 to 1970. The canals that are presently plugged were excavated in 1972. The depths in the open system vary from 5 to 18 feet. The lots on this canal system have been approximately 5 percent developed. In all, over 400 lots have been platted along this canal system (this is excluding the platted lots to the north with Port Pine Heights Subdivision). The general size of these lots is 75' x 100'. As far as can be determined, all residences within this subdivision utilize septic systems for waste disposal. Many of the residences here have seawalls, basins, ramps or other shoreline development. There is no planned storm water runoff control development (swales, lot grade uniformity, storm drains, etc.) within the subdivision. The offshore waters of Pine Channel, between Big Pine Key and Big Torch Key are shallow (0-5 ft. MLW) with extensive grass flats, algae communities, corals and sponges over the harder more exposed bottoms. Shorelines of surrounding keys are mangrove fringed and water transparency is excellent throughout Pine Channel. The project location is along the northwest end of Big Pine Key. A fresh-water lens is found from 2-20 feet below the ground here, which is primarily Miami oolite. Before the development of this subdivision, this area was a low wetlands area with transitional-type vegetation and scattered submergent mangrove communities. The predominant wind direction here is east-southeast, although the wind direction is primarily from the north during the colder winter months. The applicant applied to open the present plugs and to excavate four new canals in 1973. Water certification from DPC was denied in this same year. In 1975, this application was again appraised and denial was recommended (same as present application with the exception of the depths which were a uniform 8.5 foot MLW, as compared to an average -5 feet MLW now proposed. Additionally, the original application did not include the basins now proposed). This recommendation was upheld on October 22, 1976 in an Administrative Hearing (Kyle Brothers Land Company, Inc., vs. DER). It was decided at this time that reasonable assurance had not been provided that water quality standards would not be violated. Of particular concern, as pointed out in the "Conclusions of Law" were the means of waste disposal which were not of the "latest modern technological advances" as required by Section 17-3.09 of the Florida Administrative Code, to insure adequate water quality. The existing canal system from which the applicant proposes to extend, is characterized by a highly diverse population of sessile, filter-feeding organisms along the top 3-6 feet of the vertical canal walls, filamentous algae growth along the bottom portion of the deeper walls and a sporadically lush (but heavily fowled by epiphytes) growth of seagrasses and algae along the bottom with many bare or sparsely vegetated areas that have collected plant fragments and other organic detrital matter. As a general, but not hardfast rule, the shallower bottoms display denser vegetative growth with shallower sediments, whereas the deeper depression and incongruities have sediment accumulations of up to four feet and a higher proportion of green algaes (primarily Penicillus sp., Bataphora sp. and Cladophora sp.). The seagrasses found in these canals were primarily shoalgrass (Halodule wrightii), and manatee grass (Syringodium filiformis) with some turtle grass (Thalassia testudinum). Resolution George Kyle Page Three Water quality, at present, is extremely marginal, at best, with numerous thermoclines detected in as shallow as six feet of water (terminal end of branch canal 24). Oxygen levels within this system are highly variable, with extremely low levels as a result of high respiration rates. Wind- driven circulation within this system is better than most, with a favorable east to west orientation in the main canal. Problems do exist, however, during winter months when a predominant northerly wind affects southern main canal branches and during summer months, when southerly winds inhibit outgoing circulation in the northern branches. At the time of the on-site inspection, floating, wind-driven vegetative debris was collecting in the northern branch canals as a result of southerly winds. Indicators of current problems observed were the collection of dead seagrasses along the bottom in the southwestern corner of all the basins in canal 15 (these basins were cut out during the original canal excava- tions as is planned for the proposed canals), and the observation of several dead fish (Haemulon sp. (2) and one Caranx hippos). Also of interest is the extensive growth of filamentous algaes (Enteromorpha sp.) within the deeper canal areas, primarily those deeper canal walls which receive substantially less sunlight penetration due to shading. This is especially true for the branch canal walls which have a north/south orientatior. The upper portions of the canal walls have a hard, irregular Miami oolite surface, although one area in the northeastern part of the system displayed a one to two foot deep mangrove peat layer. The walls throughout most of the canals have many cracks. fissures, and concavities, conducive to attachment for a variety of mollusks (thin shelled oysters (Isognomon sp.), mussels and various grazing snails), tunicates, sponges, anemones, and algaes (Colpomenia sp. Acanthophora sp., Udotea sp., Halimeda sp., Acetabularia sp., and Penicillus sp.,). In addition, several species of crustacea (xanthid crabs and spider crabs) were observed along these walls. Fish were especially abundant both along the canal walls and bottom. The wall fissures are utilized as protective habitat for mangrove snapper (Lutjanus griseus), small grouper, sheepshead (Archosargus sp.), and grunts (Haemulon sp.). Those fish found along the bottom and, in particular, among the seagrasses are pinfish (Logodon rhomboides), grunts, snapper, mojarra, killifish, silversides (Menidia sp.), anchovies (Anchoa sp.) and barracuda (Sphyraena barracuda). Also along the bottom, primarily in the areas supporting dense benthic vegetation, were horseshoe crabs, scattered anemones and sponges, and, where seagrasses were less prevalent,Cassiopea. The plugged canals proposed for opening are deeper, on the average, than are the open canals (depth range of 11-20 feet). Water transparency is lower here. Temperatures and salinities are extremely variable, limiting species composition primarily to green algaes (Batophora sp.). With the exception of depth, the physical configuration of the closed canals is similar to that of the open canals. The spoil areas to be filled and utilized for housing development are transitional, for the most part, with a dominant species composition including buttonwood (Conocarpus erect a) , salt grass (Distichilis spicata), and sea daisy (Borrichia sp.). These transitional areas are isolated from the open canal system by an approximate 70 foot wide fill strip which parallels the main canal for its eastern-most length. Resolution George Kyle Page Four South of the second (counting from north to south) canal proposed for total excavation, lower elevations are encountered inland. Although mosquito ditching is evident in this area, there exists many permanently submergent areas which support stressed population of white and black mangroves (Laguncularia racemosa and Avicennia germinans, respectively). These waters are, in general, hypersaline with many dead or nearly dead individuals. A few general observations can be made concerning the existing canal system which can be correlated to the conditions expected over time within the canals proposed for excavation and opening. Sedimentation (almost exclusively organic) is very much evident from recent years (comparison of 1974 to 1980 Environmental Survey data), expecially in the main canal. There is a definite and discernable correlation between the age of many of the canals and their sediment depth. Much of this sediment is due to the natural dying off and settling of the mature seagrasses and algaes found within the system. This resettling of the dead vegetation does not, at present, show obvious signs of over- loading the system (the deeper areas that support no visible vegetation are marginal in this respect and may contain anaerobic sediments). The present benthic floral community appeared to be at or very near successional maturation (to the point possible) and it is felt that this community is more likely to decrease in density rather than increase over time. On a positive note, the existing system provides a good deal of marine habitat and is very productive in its own right over much of its area. Vegetation and fish life thrive in many of the shallower areas and the upper canal walls contribute both to the food chain and to water quality which, in terms of transparency, is very good throughout most of the system. This is touched upon in the applicant's Environmental Survey discussion. There are, however, some points worth mentioning concerning data complied in this survey. As far as can be determined from the data, the algae transects were performed in shallower than average water, indicating a higher percentage of wall coverage by algae. The one deep transect performed was at the NMIO station where coverage was recorded at one, two and three meters. The average coverage at this station was 32 percent as compared to a consistent 80400 percent recorded at all other stations. Although it is not argued that there are many bottom areas with dense seagrass and algae coverage, the accurate representation of this coverage (applicant claims all areas are 80-100 percent covered) is misguiding in that many areas were far below this level. The orgainic composition of the sediments analyzed in the open canal system averaged over 11 percent as compared to a barely traceable amount of organic sediment in the closed system. The tidal exchange data collected, shows definite tidal action between the plugged canal monitored and the open system. Although this plug is at least 20 feet in width, the exchange of water here shows how permeable the soil in this area is. Excavation and opening of the new canals to the depths proposed should result in systems similar to those shallow systems now existing. Resolution George Kyly Page Five Seagrasses and algaes are expected to cover the canal bottomt with Halodule initially stabilizing the sediments and Thalassia eventually taking hold. The canal walls should provide good substrate for many sessile filter-feederst as well as many species of fish, mollusks and crustaceans. There iSt however, expected to be a good deal less diversity along the lower portion and base of these vertical walls due to shading. Except for initial turbidity and sedimentation problems associated with dredging, the initial, or short term affects anticipated from this project should be minimal. The shallowt sloping depths of new canals should promote good tidal flusing if bottom contours are kept on an even slope so as to not create discontinuities. There may be a small problem with wind-driven detritus during the summer months. This detrital matter may tend to collect and accumulate on the canal bottoms. The addition of six new canals to the present system will decrease overall flushing of the system and in this way may contribute to benthic detrital accumulation by concentrating the deal vegetative litter that would be flushed away in a naturally free-flowing system. Of greater concern is the anticiapted overenrichment of the entire system over a long period of time. Organic deposition is presently pushing the overload point in many parts of the existing system, and the opening of six new canals (potential for nearly 25 percent increase in total subdivi- sion occupancy) could very possibly add to this overload. Overenrichment may develop over timet duet in great deal to the expected introduction of septic system leachate into the canals. Because of the poroust fissured substrate involvedt this possibility is increased. To a lessert but still concernablet degree is stormwater runoff within the developmentt which also has the potential for contributing to overenrich- ment within the new and existing canals. A final concern are the domestic emissions (oils, greases, fish carcassest detergentst etc.) expected as a result of increased boat usage within this system. I feel that the excavated and opened canalst after being stabilized by benthic vegetationt should maintain good water quality standards, but that natural eutrophication and organic sedimentation, combined with the potential for additional loading by future developmentt could significantly degrade water quality over the long term. Such long term degradation would be expected to occur first in the existing older systemt but would not necessarily be limited to this system. A large part of the overall problem is the poor configurationt deptht and contour of the existing older system. Although the proposed system may be physically designed so as to function properlYt the system as a whole is susceptible to accelerated eutrophication. Due to the potential density of development within this subdivisiont I would suggest that a central sewage treatment facility be seriously considered by the applicant. I would also suggest that some form of stormwater runoff control be incorporated into the subdivision. To provide increased habitat, desirable for marine biota along the canal walls and to offset undesirable shadingt I would further recommend sloping of the vertical canal walls. Resolution George Kyle Page Six BE It RES~C~ED BY tHE B~ARD ~F t~UNtY t~mmISSI~NERS ~F m~NR~E t~llNtY, FC~RIDA, that the ahove B1ological Assessment has heen reao 1nto the recoro ano ouly consioereo pursuant to Florioa Statute 253.124 hy the Boaro of County tommissio~s of manroe tounty, Florioa, th1s ~~~ oay of~~~tfLl~ ,19 Gr~ at a regularly scheouleo meeting. ! B~ARD ~F t~UNtY t~mmISSI~NER ~F m~NR~E t~llNtY, FC~RIDA BY~~ l1lAY~R (Seal) Atte.t: D~NY YOLHo/'jt, Clerk i. I , ~ Cucun t. Frahy tounty Attorney ~ M E M 0 RAN DUM DATE: November 13, 1984 \D)~ ~'\?":"i1?8~. "'.. D) 1[.-'( f"". . , , I~::t "./,' ~, .'-.../.. If\~ l,,>'; . .J Lk:' OCT 1'7 ~-."- TO: FROM: Jeffrey M. Doyle, Ph.D., Director Planning and Zoning Department George Schmahl, Biologist ~ Dorr Fox, Planner.ft)- COUNTY AllY. SUBJECT: George Kyle, Canal Excavation and Fill, Port Pine Heights, 2nd Addition, Blocks 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, and 52. Enclosed please find the Planning staff evaluation of the George Kyle application for canal excavation in Port Pine Heights. The following items are provided for your review: Memorandum from George Schmahl, County Biologist, dated October 23, 1984; RESOLUTION FOR GEORGE KYLE Memorandum from Dorr Fox, County Planner, dated October 23, 1984; The original Monroe County application for excavation and fill; An aerial photograph of Port Pine Heights, dated 1975; The revised project proposal submitted by George Kyle and prepared by Kenson and Associates, received by Monroe County Planning and Zoning Department on September 24, 1984; The Department of Environmental Regulation (DER) biological assess- ment of the project, dated February 17, 1981; The DER Intent to Deny, dated April 10, 1981; The DER Administrative Hearing Report and Final Order approving the dredge and fill proposal, dated October 1981, and January 1982; The DER permit for the project, dated March 19, 1982; The United States Army Corps of Engineers (ACOE) permit for the dredging, dated September 12, 1983; the ACOE permit for the placement of fill in wetlands, dated September 14, 1984; r.!;; Y f) 193.5 '(J C9UNTY ATTY. Jeffrey M. Doyle, Ph.D. November 13, 1984 Page 2. A compilation of letters from interested parties concerning the proposed project, in response to the ACOE public notice. These letters are from: The U.S. Fish and Wildlife Service, The National Marine Fisheries Service, H. Ray Allen, P.A., Attorney for the Port Pine Heights Property Owners Association, Arthur H. Weiner, Ph.D., Biological consultant for the Port Pine Heights Property Owners Association, Michael Vaughn, President of the Port Pine Heights Property Owners Association" South Florida Regional Planning Council, The Monroe County Health Department. Please review these files carefully. We will contact you at the end of the week. In order for this application to be heard by the County Commission on November 30, 1984, all pertinent information should be submitted to Lorraine Rogers by November 19, 1984. DF:lb Encls. , ---------- MEMORANDUM DATE: October 23, 1984 TO: Jeffrey M. Doyle, Ph.D., Director Planning and Zoning Department FROM: George Schmahl, Biologist RE: George Kyle, Canal Excawationand Eill, Port Pine Heights 2nd Addition, Blocks 30~ 32~ 34~ 36, 38, 40, 42, 44, 46, 48, 50, and 52. 1. Introduction This application for the excavation of approximately 22,815 cubic yards of oolite limerock in order to create a residential canal front community and the deposition of a similar amount of fill in the uplands and wetlands of Monroe County should be reviewed by the Board of County Commissioners as per Sections 19-1ll(b)(2) and 19-111(b) (4) of the County Code. 2. Project and Site Description a) Port Pine Heights is an already existing but uncompleted sub- division in the northwestern corner of Big Pine Key. It consists of two dead-end canal systems including a main canal with per- pendicular branches along which residential lots occur. The existing canals were dug during the period 1965 - 1972. Two of the branch canals remain plugged and four others were planned but never completed. One of these (between blocks 42 and 44) was surface cut, two others had been cleared but not excavated in any way, and the last (between blocks 30 and 32) has experienced no clearing or cutting. On most of blocks 30, 32, 34, and 36, and parts of blocks 38, 40 and 42 occur impounded wetlands with considerable amounts of. standing water. The applicant wishes to unplug the two plugged canals and complete the excavation of 4 others. The resulting fill will be used to make 30' x 30' house pads in the wetland area, each with a 25' x 15' access driveway. The canals will be cut to provide a 10' x 35' boat mooring for each lot. The canals will have a depth of 4 ft. MLW at the land- ward end and slope to 6 ft. ~~W at the waterward end. b) Biological description: A site inspection was made September 27, 1984. Most of the area in question has been altered in the past. A general description of each block follows: Blocks 48 and 50 - east of plugged previously scarified and filled. occurred consisting mostly of the terebinthifolius. canal #1: This area has been Significant regrowth has exotics Casuarina sp. and Schinus ::> 0- -J- ~ "< --... 2: > - ':> Z -l- I -- () C' (/) > "< :'\ ~ ;> r - ~ ~~ ,/// ~--. . 131DcK -if- ~2- ~------_._-<-----_.._._._..._, .~ ~~ }Jlu3~ed (oMI #- I .~ ......_.....,~ ..-.... .'....i ...... -.............1 ~:.."-.J ~"'.i , _ l rl'lC1:; , .. 50 4-3 PI u9Jet( " r.J.J.. /I (" j\C.t/ 11_- ~/ , a A..LL . , - - ---..--- ----- -- I I I I-- I - ---- S u r.fvc C!..d- C) r,-:t I - - -- --.---- 42 40 . ------------ 7) c1 r: I :::f.., " I r(OfC$~ < o..l'1a 7- ...;e - - - - - -- .--.--- 3(, ------- P(~fD ~e.o( (0-1'10./ #2.. ------ -------- ~ - ~ 32... ----- ----- Pro~o<:..,ed (an 0. ! .J..l. ....., 3 ' . 1- - _ _ _ _ _ ~ - - - -- z. E- , . . I . '/ I~i""'" " .:;) I. r:J (~ n (".1. I Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 2. Blocks 46 and 44 - between plugged canal #2 and surface cut canal: This area is mostly a natural transitional area consisting of exposed caprock, with the dominanx vegetation being buttonwood (Conocarpus erecta), Poinsonwood (~nopiurn toxiferum) and other transitional wetland species_ A large mound of fill (i 20~ ~) ~ ~esent on the northern end between blocks 46 and 44 in the vicinity of the main canal. Deer tracks were observed in the vicinity of this mound of fill. The surface cut canal that separates block 44 from block 42 is highly disturbed; the--canar"nasbee-ii 'excavated to approximately 4' with the large boulders and fill remaining in the vicinity of the proposed canal. Blocks 42 and 40 - east of surface cut canal: The southern portion of these two blocks have been previously filled and support stands of Casuarina and Schinus (exotic pests). Wetland areas occur on the northern portions of these blocks. There is a significant quantity of standing water in this area. The dominant vegetation is buttonwood. The wet area has obviously been disturbed; dead trunks of uprooted mangroves are common. Among the dead debris however, occur a large number of sprouts of white mangrove (Laguncularia racemosa). These young trees appear to be very healthy. A cleared and filled road is present along the canal site. This fill along with Kyle Blvd. to the north, has impounded these wetland areas. Blocks 38 and 36 - this area has mostly been filled with regrowths of buttonwood, Casuarina and Schinus. There are pockets of wet areas scattered throughout these blocks. A limpkin was observed roosting in a buttonwood tree near the northern end of block 36. A fill road is present along the site of the proposed canal and to the east (in block 34). Blocks 30, 32 and 34 - east of the fill road of proposed canal #3 and west of block 28, which is entirely filled and scarified: This area is predominantly impounded wetland with significant areas of standing water. This water is brackish (taste test) and averages 6 - 8" in depth. Vegetation included buttonwood, Black mangrove (Avicennia germinans), extensive white mangrove (Laguncularia racemosa), seagrape (Coccoloba uvifera), Borrichia spp. Salicornia spp., and Key grass (Monanthochloe sp.). All of these are wetland indicator species. As in the other wetland pockets, these standing water areas support a significant number of white mangroves, mostly sprouts and young trees which are in a very healthy con- dition. Many black mangrove sprouts were also observed. A group of 15 - 20 terns were observed feeding in the shallow water of block 32. A dead red rat snake (Elaphe guttuta rosacea) was observed on the southern side of Kyle Blvd. north of block 34. Jeffrey M. Doyle, Ph.D. October 24, 1984 Page 3. These blocks are the least disturbed of the proposed development area. Although now impounded, this area was probably historically connected to the mangrove area north of Kyle Blvd. The area north of Kyle Blvd. has been impacted due to mosquito ditching, but the mangrove communities present there are continuous with the shoreline mangroves to the north. c) Most of the area (Blocks 38 - 50) appear to be disturbed upland communities. Blocks 30 - 34, however, should be considered wet- lands as per Section 19-111 (a) (1) of the County Code, as well as parts of Blocks 36 - 40. In addition, it is my opinion that Blocks 30 - 34 could be considered part of the Shoreline Protec- tion Zone, as per Section 4-18 of the County Code. The mangrove communities to the north of Kyle Blvd. are landward extensions of mangroves that occur on the shoreline of Big Pine Key. The mangroves observed to the south of Kyle Blvd. on Blocks 30 - 34 have been separated from the shoreline mangroves by a man-made road and thus impounded, but only those mangroves which "are isolated inland and separated from open water areas by non- mangrove natural vegetative communities" (Section 4-18 Monroe County Code, underline mine) can be excluded from the Shoreline Protection Zone. d. The Department of Environmental Regulation has issued a permit for this work dated March 19, 1982 (Permit Number 44-37258), with the condition that a central sewage treatment plant will be constructed to service the 96 lots that will abut the proposed canal. This plant will be constructed when 30 of the 96 lots are developed. The Army Corps of Engineers has issued two permits for this work. The first (#80B-2l57), dated September 12, 1983 is for the excavation of four canals and the removal of plugs from two canals. They require that a secondary sewage treatment plant be constructed when 10 of the lots have been occupied. The second (#84B-0060), dated September 14, 1984, authorizes the placement of fill for house pads in the wetland areas in Blocks 30 - 42. This comprises 46 lots. Each lot may only contain a 30 x 30' fill pad with a 15 x 25' driveway, and reverse swales will be constructed on the canal frontage of all 96 lots. Further the sewage treatment plant will be located on an existing upland lot south of Kyle Blvd. It was related to me by Mr. George Kyle on September 26, 1984 that the location of the sewage plant would be in Block 52. 3. Evaluation A. There are various aspects of the Monroe County Code, the Coastal Zone Protection and Conservation Element and the Principles for Guiding Development for the Florida Keys which may have bearing Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 4. on this proposal. I will enumerate the sections of each that may apply individually. Monroe County Code: Chapter 4, Article I.I (Shoxe.L.L.-re P-LUL-=.:tion) : It is my opinion that portionsDk ~vnoposed development site lie within the Shoreline Protection Zone (SPZ). The mangrove communities south of Kyle Blvd. should be considered continuous with those north of Kyle Blvd. The fact that the two are separated by a man-made road does not allow exclusion of these areas from the SPZ by Section 4-18 of the County Code. The deposition of fill within the SPZ is prohibited (Section 4-2l(e)). Access canals or channels, docks and other structures elevated on pilings are permitted in the zone. However, if no fill is allowed in the wetland area, a canal dug in this area could not provide access to anything and could not be considered an "access canal." Chapter 19: 1) Fill will be required in both upland and wetland areas. In upland areas consideration must be given to drainage patterns and the effects on water and storm runoff. (Section 19-111 (a)(3)). The reverse swales required by the Corps of Engineers should prevent storm water runoff into the canal. In wetland areas consideration will be given to natural biological functions including food chain production and habitat for aquatic and terrestrial species (Section 19-111 (a)(4)). At least two bird species (limpkin and terns), one reptile (red rat snake) and one mammal (Key deer tracks _ endangered) were observed in the one day that the site inspection was made. Other observations have been made in the general area when on inspections in Port Pine Heights for other reasons: A glossy ibis (Plegadis falcinellus) was observed in a rainwater catchment along Key Deer Blvd. directly east of the area in question, a black racer (Coluber constrictor) was observed crossing into the proposed develop- ment area from the area north of Kyle Blvd. in the vicinity of Block 40, a Bald Eagle (Haliaeetus leucocephalus) was observed flying north to south over the proposed development area (the eagle was not observed to land in the area), groups of Key deer have been observed along and south of Kyle Blvd. at various locations in the area in question. Clearly the area is potential habitat to a variety of significant species. 2) Excavation will be required in both upland and wetland areas. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 5. In upland areas, consideration must be given water quality within the proposed area of excavation. In wetland areas, "aspects of public interest, including water circulation and movement, disruption of marine and wildlife communities, potential adverse effects to water quality, the inhibition of photosynthetic processes and compounding adverse effects, will be considered." (Section 19-111 (b) (4)). The subject of adequat~ water circulation and movement in dead-end canals has not been resolved. In my opinion water circulation and flushing in a dead~end canal system of this length will not be adequate to prevent degradation of water quality in the canal system itself and potential adverse affects to the outlying waters of Pine Channel. The excavation of canals in the wetland areas will cause obvious disruption to any wildlife that utilize these areas. 3) The presence of standing water suggests that parts of this area (notably Blocks 30 - 38) are subject to frequent flood- ing as per Section 19-112 of the County Code. No building shall be constructed on lands of this type. Coastal Zone Protection and Conservation Element: Chapter IV: Management Policies. 1) Marine Resources. 3.1 (p. 24) - Prohibits dredge and/or fill of submerged lands except in proven cases of overriding public interest. 4. (p. 24) - "... modification of natural patterns of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest." Excavation of a dead-end canal system will obviously modify the natural patterns of tidal flow. The possibilities of introduction of nutrients to the canal water system via fertilizers, detergents and seepage of septic systems are increased with the development of residential units abutting these waterways. 2) Natural Vegetative Resources. 2. (p. 32) - Recognizes the critical role of pineland as habitat for Key deer. 2.1 (p. 32) - Development adjacent to pineland areas will be regulated as to maintain normal drainage patterns and the ecological balance of the entire area. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 6. 3) Natural Land forms and features. 5. (p. 36) A. Management Policies: Development activities will be required to protect tidal flushing and circulation patterns. A hydrographic study is required to allow an accurate evaluation of the possible impacts of the project. B. Dredging, Filling and Artificial Waterways: 2. (p. 37) - "Residential developments that are feasible only through creation of land by dredging and filling of submerg- ed areas will be prohibited." It is obvious by the presence of standing water and the need for fill pads on Blocks 30 - 42 that this portion of this residential community is not feasible without the creation of land by filling in the wet areas. A convenient guide for determination of the need for fill in areas along this canal system is the level of mean high water, which can be observed along the main canal, off of which will branch the proposed new canals. The area along the main canal has previously been filled and the level of mean high water may be observed as to whether it is below the level of the caprock or above. The mean high water line is above the level of the caprock in the areas of the surface cut canal and propbsed canals #1, 2, and 3. On all of the remaining existing canals, except for the two most waterward ones, the level of mean high water is below the level of the caprock, suggesting that these were upland areas prior to construction of the canals. This is an indiciation that creation of residential homesites in this area is not possible without filling and should therefore be prohibited. 3. (p. 37) - A determination must be made as to the long term effects on water quality (both offshore and within the canal system). A number of potential water quality viola- tions were addressed by the D.E.R.'s intent to deny, dated April 10, 1981. Although the permit was subsequently issued by D.E.R., we have nothing in our files that shows how these problems were resolved. In particular, the applicant should be made to indicate what will be done to keep water quality parameters within that necessary to meet State water quality standards for Class III surface waters. 6. (p. 37) - "Artificial waterways should be designed to ensure adequate flushing. Dead-end waterways should be avoided." Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 7. According to the intent to deny issued by the D.E.R. (dated April 10, 1981), flushing time for each of the proposed canals to reduce a pollutant to 10% of an initial concentra- tion is approximately 6 days. This estimate is only for flushing between the proposed canals and the main canal. Flushing of the entire system would be considerably longer. It can be argued that this does not constitute "adequate flushing." 9. (p. 37) - "The sides of artificial waterways should be gently sloping rather than vertical to facilitate biological as well as physical stabilization of the canal shoreline." No provision for such an accomodation has been made by the applicant. 14. (p. 38) - "All dredging spoil material should be placed on suitable upland rather than in water areas." This project proposes to deposit fill in wetlands which support mangrove communities. C. Areas of Particular Concern (p. 39) 1. Freshwater Aquifers - "All freshwater aquifers in the Keys are designated as "Areas of Particular Concern," with special emphasis on the Big Pine Key aquifer." G. (p. 40) - "Certain development practices such as blasting and canal and borrow pit dredging will be regulated in the areas of known groundwater resources." The effect of dredging and especially blasting on the aquifer of Big Pine Key is an unknown entity. According to a study by Hanson (1980 - U.S. Geological Survey), the area near Port Pine Heights already has an unusually high chloride concen- tration in the groundwater below. This is assumably due to the canals that already exist there. Extension of the canal system, especially if blasting is used for construction, may cause further salt water intrusion to the groundwater re- source. The effects of blasting on the structural integrity of the already existing houses in the area is a subject that has not been adequately addressed by the applicant. D. Terrestrial Wildlife Resources (p. 42). 2.1 (p. 43) - 1. Management Policies. "Intensive development will be directed away from the habitat of rare, endemic, endangered or threatened species." Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 8. Port Pine Heights lies within the boundaries of both the Key Deer and Great White Heron Wildlife Refuge. Although the area proposed for development is already disturbed and therefore not utilized heavily by Key deer populations, the secondary effects of intensive construction work and the subsequent increase in the number of residents in the community could have negative impacts on the habitat, behavior and safety of endangered species. 2. Wildlife areas of Particular Concern (p. 44) Both the Key Deer and Great White Heron National Wildlfie Refuge are designated areas of particular concern. 2a. (p. 45) - "Intensive development will be directed away from the wildlife refuge areas." 2b. - "All development proposals will be required to demonstrate that they will not significantly affect the direct or supportive environment of the habitat within the refuge." Conversations with representatives of the u.s. Fish and Wildlife Service have indicated that while the primary effects of construction within the disturbed area of Port Pine Heights may not have significant impact on wildlife popula- tions, secondary effects of increased residential density within The Refuge will have unwanted impacts. Increased traffic (road kills account for 82% of Key deer deaths annually), increased numbers of dogs, increased potential of feeding and molesting deer and other wildlife, and increased spraying of the area with pesticides for mosquito control will all have adverse impacts on the wildlife and general ecology of the area. Principles for Guiding Development - State Law, effective as of August 23, 1984. 27F-8.03(4) Second Objective: "Protect Shoreline and ~Iarine Resources..." (a) 2. - "Prohibit activities such as dredging, filling and spoil disposal or opening of existing but unconnected canals to open water that would have a substantial adverse impact on shoreline, wetland and marine resources." The proposed development would eliminate the existing wetland and its functions. Development along man-made canals could have an adverse impact on water quality. At present water Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 9. quality in Port Pine Heights is adequate but marginal. However, only about 13% of the total number of lots in Port Pine Heights are presently occupied. This situation must be viewed with the potential xull occupancy of the area in mind. 4. - "Protect fish and -wildlife habitats from adverse im- pacts such as boat or vehicle traffic." (7) Fifth objective: "Limit the adverse impacts of develop- ment on the quality of water throughout the Florida Keys." (a) 2. - "Stormwater management systems shall be designed to protect the absorptive, purifying and retentive functions of natural systems that exist on the site of a proposed development." The incorporation of reverse swales on the canal fronts is an attempt to retain stormwater on site by the applicant. Think, however, of the person who owns a lot in the wetland portion of the tract, with a 30 x 30' fill pad and reverse swales. During the wet season, he will essentially have an island in the middle of his lot. I believe this will cause problems for the County: regulation of the maintenance of the 30 x 30' pad will be difficult - encroachment of fill into the wetlands by the owners is inevitable. It is ridiculous to think that a property owner will be content with what will essentially be a 30 x 30' lot. Filling of the entire wetland, however, would destroy the stormwater retention function that this wetland area now maintains. 4. "Domestic waste systems shall be planned and designed to function in a manner that protects and preserves the quality of groundwater, surrounding waters and natural ecosystems." The applicant has agreed to build a sewage treatment plant to service only the 96 newly created lots after 10 lots have been developed. This treatment plant will include deep well injection of effluent and will be located within one of the residential blocks. There are still unanswered questions as to the effects of deep well injection in the Florida Keys. The Keys have a unique geology and next to nothing is known about the effects of deep well injection on island ecosystems or surrounding waters. There are also unanswered questions as to the continued maintenance and operation of this sewage treatment plant. The placement of the plant within a residential community should also be subject to community review of at least the land owners within Port Pine Heights. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 10. (b) 3. - "Local government shall establish construction guidelines which provide for control of erosion from con- struction sites..." The applicant: .is !&equ.:i:3:;eri..t:D.~fJnstrtlct reverse swales along the canal shorelXn~. ~~~, mentioned nefore, part of this canal shoreline w.IIl he~'jmean high water. Therefore, on high tides, erosion~occur on the fill swales. If the developer is required to eonstruct swales, he should also be required to insure that the swales will remain in place and not be washed into the canal .system. This would involve the construction of some sort of retaining wall along the canal shorelines. Excavation of canals which are below mean high water necessitates the need for seawalls or some other retention device. This practice should be discouraged in Monroe County. 4. "Local government shall require that applicants for sub- division or site alteration approval develop water management plans..." The principles enumerate 6 specific criteria which include hydrography, erosion, water quality, water retention, flooding and impacts to wildlife. Most of these have been previously addressed in this discussion. No such plan has been submit- ted to the County by the applicant. B. The issuance of permits for this activity from the D.E.R. and A.C.O.E. should be reviewed by the County for possible inconsis- tencies with local concerns. 1. Concerning the D.E.R. permit, an administrative hearing was held on October 5th and 6th, 1981 because the petitioner (Kyle Brothers) had contested the intent to deny issued by the D.E.R. on April 10, 1981. In that hearing, the Kyle Brothers, to the satisfaction of the hearing officer, answered the questions concerning degradation of water quality in the Port Pine Heights canal system. However, upon reading the hearing report, there are still unanswered questions and possible misrepresentations on the part of the petitioners that should be addressed by the County before. issuance of any permit for this work. In the hearing report "findings of fact" numbers 4 through 12 were entered by the Kyles in support of their application and in response to the D.E.R. biological report which stated possible water quality concerns. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 11. a) The first "finding of fact" entered by the Kyles (//4) established that since the creation of the subdivision in 1959, forty (40) homes had been built. This is admittedly a slow level of growth, and this argument was used to defend at least three (3) other "findings of fact" through- out the hearing. This "fact" was used in the "conclusions of law" (//6) by the hearing officer to disregard long term effects on water quality due to the saturation of homesites in the area. It was stated that a growth level that "averaged only two (2) homes per year" did not warrant immediate concern for large scale development of the sub- division. It is now known, through inspection of aerial photographs, that the 40 home figure was inaccurate and consequently the implied level of growth was grossly distorted. In fact, the 40 home estimate was based on homes present in January 1977, almost five (5) years previous to the date of the hearing, (Based on Real Estate Atlas of Monroe County, Fl., 17th edition (Real Estate Data, Inc.), January 1977). In the January 1977 photos, 39 (possibly 40) homes can be counted in Port Pine Heights, 15 of which are in the southern portion, which is almost exactly what the applicant stated. However, this was stated in October 1981, 4 years and 10 months after the aerial photographs were taken. Inspection of the January 1982 photographs show 83 homes within Port Pine Heights, 31 of which were in the southern portion. These photographs were taken 3 months after the hearing and it is doubtful that the 43 additional homes were built in that short time period. This puts the level of growth in Port Pine Heights in a different light, for although only 40 homes were built in the 17 year period from 1960 - 1977, 43 homes were built in the next five years, from 1977 - 1982 (100% increase). A count of the homes now present (October 1984) indicates 104 homes. Obviously, a much higher level of growth is occurring in Port Pine Heights than indicated by the applicant and any decision about development in this sub- division should be made with high growth levels and maximum occupancy in mind. The "forty (40) homes in twenty (20) years" was used as an argument in "finding of facts" 115, 9 (c) and 11 to emphasize low occupancy and growth levels to counter D.E.R. fears of overloading the canal system with pollutants and other secondary impacts. These "facts" should be re-evaluated Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 12. in light of the accurate information. b) Another "finding of fact" that is subject to question is the comparison of canal water quality and biological communities in the canal system and "offshore waters." The "offshore water" station was a single site at a location within Pine Channel, immediately offshore of the mouth of the southern canal system of Port Pine Heights. This area is extremely shallow, with depths less than 2 feet in much of the area with a maximum depth of three feet. Biological communities include seagrasses (Thalassia testudiunum and Halodule wrightii) and associated fauna. Considering the shallow depth, low substrate cover and possible stresses due to high ultraviolet levels, wide temperature fluctuations and high salinity fluctuations due to evaporation or terrestrial runoff, it is no wonder that this is an impoverished area in terms of biological communities and dissolved oxygen levels. A site such as this is in no way comparable with an artificial canal system site and should not be allowed as evidence of high water quality or dlverse biological assemblages within the canal. A more accurate comparison would be to parallel a man-made canal with a natural mangrove creek. Obviously a man-made canal would not fare well in such a comparison. 2. a. In regard to the issuance of the Army Corps of Engineers (A.C.O.E.) permits, it should be noted that there is a good possibility that the owners of 30 x 30' house pads in wetland areas will not be able to obtain septic tank permits from the Health Department, due to the minimum setback requirements. There is a letter in the file from the Monroe County Health Department dated February 1, 1984 from Mr. Art ~fuze stating that septic tank permits could not be issued for residences within wetland portions of the site. b. Concerning A.C.O.E. permit #84B-0060, the special condition regarding the construction of reverse swales along the canal frontage of all lots seems to be contrary to the maintenance of a functional wetland system. The reverse swales, along with the fill roads, will serve to impound these areas and allow them to become stagnant. It would be better for the maintenance of the wetlands to construct the swales around the perimeter of the fill pads (to retain stormwater runoff) and eliminate any barriers along the canal. This would allow free flow of water between the wetland and canal system to provide flushing of the system. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 13. c. Concerning A.C.O.E. permit #80B-2157, a special condition directed the applicant to construct a secondary sewage treatment plant after 10 lots have been occupied. This sewage treatment plant will include "deep well injec- tion" of effluent. There is some question as to the defini- tion of "deep well injection." Technically injection needs only to be carried out beneath the lowermost formation containing an underground source of drinking water. In the Keys this layer is very shallow and sewage effluent could be injected only 100 - 150 feet below the surface. This effluent could then communicate with offshore waters and cause possible degradation. These should be considered of the Class V shallow well injection-type. More studies need to be carried out on this type of sewage disposal before they are routinely permitted in the Keys. True deep well injection systems are regulated by the State and fall into the Class I heading, inject usually to depths of 700 - 7000 feet, and cost upwards of $1 million to construct. The type and construction of the "deep well injection" treatment plant needs to be clarified. A detailed plan and study should be submitted by the applicant, along with feasability and cost of maintenance, before such a unit is allowed as a condition to a dredge and fill permit. 4. Recommendation Disapproval as proposed. Specific impacts anticipated as a result of this development will include: 1) The elimination of habitat for marine and terrestrial wildlife, 2) elimination of a stormwater retention system and a functional wetland, 3) significant alteration of natural drainage patterns, 4) possible intrusion of saltwater into the freshwater resource of Big Pine Key, 5) possible degradation of water quality within the canal system and surrounding waters. The proposed activity is clearly contrary to various specific sections of the Monroe County Code and the Coastal Zone Protection and Conservation Element as presented previously in this report. 't/~7/~'f Nt It..- pPf/ WN'-k nt~ Sr>>.J3 iMf6lUtdtd w~ffuad ~ /~/:J~/~ Fit. ~~. 'frft ~2.643 , c#f> W.kA ItJlel ~,O~ lelfel 0 f -,. - (.~rod<. c: t<<fl'U1tlS '/~7/i'f ~tt .pfH L/",p Xi" ~ 0; /2 7/~<<I 1)?~~ -/~~wJ:u~~ K~f.t. -fIN be/DIN oral /ellPl .f or C~nKl< M E M 0 RAN DUM DATE: October 23, 1984 TO: Jeffrey M. Doyle, Ph.D., Director Planning and Zoning Department FROM: Dorr Fox, Planner SUBJECT: Canal Dredging Permit, Port Pine Heights/Kyle Brothers Big Pine Key ZONING: RU-l ACREAGE: 19.3 acres INTRODUCTION In March 1984, the Kyle Brothers re-initiated an application for the dredg- ing of four canals, the unplugging of two canals, and the filling of the adjacent home sites in the subdivision of Port Pine Heights on Big Pine Key. This application is currently under review by the Planning and Zoning Department. This report outlines some of the concerns pertaining to this project. HISTORY The following history is partially compiled from notes of Robert Smith, Monroe County Biologist. Port Pine Heights is an existing subdivision located in the northern portion of Big Pine Key. Of the five sections, three were platted in 1959, one was platted in 1961, and the last was platted in 1965. The Second Addition to Port Pine Heights, of which the subject area is a part, was platted in December 1959. The existing canals were dredged during the years 1965 to 1970. The two canals which are now plugged were originally dredged in 1972. The Kyles have since continually applied for dredging permits for the remaining canals. The Department of Environmental Regulation denied permits many times. However, in the past two years they approved a permit for the dredging. This past summer, the Army Corps of Engineers granted the Kyles approval for their project. At this point, the Kyles need only to gain approval from Monroe County to begin their project. SITE DATA The project area contains 19.3 acres, including 96 lots, five (5) roads, and six (6) canals. Twelve (12) blocks of the subdivision are affected by Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 2. these permits. Please see attached map outlining the project area. The entire group of subdivisions known as Port Pine Heights has including the subject 96 lots. Approximately one hundred (100) been constructed in the subdivision (none in the subject area). neighborhood is serviced by all utilities. All roads have been with the exception of the roads in the subject area. 834 lots, houses have The constructed, The average lot size throughout the entire neighborhood is seventy feet by one hundred five feet (70' x 105'). All lots (excluding the subject area) are on existing canals or open water. DISCUSSION 1. The following concerns are related to the impacts of an additional ninety-six (96) home sites in the area, regardless of the dredging and unplugging of the canals: a) The amount of traffic generated. According to the report Trip Generation by the Institute of Traffic Engineers, a community of single family homes will generate an average of ten (10) automobile trips per day, per unit. According to this research, the traffic generated by the subject area could eventually be as much as nine hundred sixty (960) trips per day, if all of the lots were developed. According to the report Trip Ends Generation Research by the State of Florida Department of Transportation, Division of Transportation Planning, a community of single family homes will generate an average of eleven (11) automobile trips per day, per unit. According to this research, the traffic generated by the subject area could be as much as one thousand fifty-six (+,056) trips per day. b) Sewage Treatment/Waste Disposal This is an issue which should be permitted through the Department of Environmental Regulation. A package treatment plant should be mandatory. However, the permitting process for buildings in Monroe County allows septic tanks for single family houses if the applications are submitted separately. c) Fire Protection There is a fire station located on Big Pine Key, on Key Deer Blvd. near U.S. #1. The capabilities of this station are unknown by Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 3. the Planning and Zoning Department. The impact of increased development (especially the addition of 96 dwelling units) on the Key could have serious consequences if the capabilities of the station do not also increase. d) Impacts on Wildlife 1) Port Pine Heights is located within the administrative boundaries of the Key Deer Wildlife Refuge. This area is known Key Deer habitat. Two major causes of death of the Key Deer are: automobiles hitting the deer as they cross the road. attacks on the deer from dogs (often pets of nearby residents). 2) In addition to the Key Deer, there are other endanger~d species in the area, including endangered species of birds and snakes. e) The site is wetlands. Extensive filling would be required. Please see George Schmahl's report for more detail. f) Monroe County is in the process of preparing a new land use plan with revised regulations. 2. The following concerns specifically apply to the dredging of the canals and the effect of the surrounding developed and natural environment: a) The effect of blasting on neighboring homes. There is a concern (especially of neighboring home owners) that the use of dynamite for blasting out the caprock for the creation of the canals will cause structural damage to surrounding residences. The primary concern is that the blasting will send shock waves travelling through the caprock, resulting in damage to pilings supporting houses and damage to cisterns. Chapter 5 of the Monroe County Code regulates blasting and explosives. Section 5-7 (Particle velocity and amplitude) is intended to protect owners of neighboring structures. However, there is no guarantee that structural damage will not occur as a result of the blasting. Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 4. b) Damage to the fresh water lens in the northern portion of Big Pine Key. The fresh water lense is a primary natural source of fresh water on Big Pine Key. Key deer use it fur drinking water. Many home owners who have wells also utilize this source. While the effects of dredging these canals on the fresh water lens is unknown, C.E. Hanson, in his report Freshwater Resources of Big Pine Key, Florida, indicates that there is a correlation between the existence of the canals and salt water intrusion into the fresh water lense. While the dredging will not occur on the specific site of lens, the proposed canals are in a recharge area, and will have an effect on the fresh water resource. Please see attached map showing approximate locations of the lense and the proposed canals. CONCLUSIONS The following concerns have been outlined in this report: 1. Traffic generation, 2. Sewage treatment, 3. Fire protection, 4. Impacts on wildlfie, 5. Construction in wetlands, 6. The future Land Use Plan, 7. The effects of blasting/dredging on: a) surrounding houses, b) the fresh water lens . Additional concerns have been brought out in the report by George Schmahl, Monroe County Biologist. Due to these concerns, the probable impacts of development, and the size of the project, it is possible that project should be administered as a major development. Chapter 6-222 of the Monroe County Code defines a "major development project". The subject project exhibits many of these characteristics, including: Jeffrey M. Doyle, Ph.D. October 23, 1984 Page 5. "Major Development Project: A Eajor rl.eve1~ment: project shall be any existing and/or activ.i.;ty Dr .us,e,00ticl1 :reflects one or more of the following identified ch~1""t'<e.ni&tics."" "(5) Any residential .aet::ildty'er,,~'fiIBe ~l~.theconstruction of ten (10) or more dwe1ling,un:tts~';a:eI:21J1: :land :and/or water area, or involving the construction OT tifty (50) or more total dwelling units." This dredge and fill application is for the purpose of creating ninety-six (96) waterfront lots, a preliminary requirement for the construction of dwelling units. "(7) Any activity or use which the zoning official, zoning board, or board of county commissioners deems necessary and appropriate to designate as a major development project based on one or more of the following conditions:" "b. The activity or use reflects sufficient scope, scale and size to justify its being designated as a major development project in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." "c. The proposed activity or use cannot be adequately and properly reviewed by the county without the benefit of its being designated as a major development project due to the nature, complexity and type of development scheme proposed." The size of this project exceeds nineteen (19) acres. The issues brought out in this report and the report of George Schmahl indicate that the nature, complexity and type of development should warrant a major development review. DF:lb Attachment ') w m N a:: ) Cf)cn I-~ I~ . (9 '. ~ - ~ ~ Wu 3 w... Ill) ~ ::::, W:;: ~- Z<Il 5 ~8 a....... I- 0::: 00 a.. ::i >- UJ X o I- ) .J Z Iri o~ -0 1--' Z <t - 0 O~ 0: > w o g :; <(u.~ o ~ <t X <t ,I ..J <t .... O~ z.;: au.. 00 W25 Cf)'0 > o CD ::l <Il ->-."0 ) UJ lI) ~ z o w::;: ~ If) UJ Z U 0.. W lI) ~ m c:( : z Q .... ~ a: u rJl UJ o ~ ~ -...; ~ fS ____L ....( UUf WaL ~~ ~ ~ en '" !!! a: UJ III ~ W c.> ~'; ::::! ~ ....oq: ~~ ll:: ~ ... ..... <:: .... ~. ~~ C:>~ ~I-.;: ~ o.:~ ~ C:> ';) . . W ..J <t c.> en d: tl I ., ') ~ 7 3 N "l'""".rr- tl 1j @ I ~ i .. - .- i :!J ~i~ I ~\ ~i/, ~ :-!1 il!! ~:l~ ~!-~~ ~_..Ia. :;~~ 00_. -. , -.0 .. ~u ;;..~ ~ . Oil :a;~ . w' ;~~'i ~~~: !~~! o a: <t o m >- I- Z ::> o u .J ~ o a: 0.. 0.. ... " I- Z UJ ::;: UJ C> o UJ ..J ~ o z x u <t .. ~~- .-. _. it :1; t Ii h h i c.>.~ ;;! . e~; I z o ~ u o UJ o e ..i~i!~ ~ I 0.& ~... t:..~-~~~ ~i!~!=; o.~.;~: ~'::~ -.. 5 :ii~i;i ~ ~~~;~l~ ffi I:~:!:: : ~;!;~5 I ii!!j;1 .~~..i.~ ' l1li- C "Cu""a ~it;:i~ :j t I ~ ... ~ I "', ~'... v. . '.: ~~ ~,~ , w, _ '\: 00; ~ ~~ ~~. ~ ~: i~lf'~' ; ':J ~ i ~U -;--j,; \~ ~!"';I~ \'l. a Zf~! JJ \1' '~ .' , C" \ : ~~~ " ~ . '~r : :: . ~ "j; ~~ . ~ rxJ ~ ~ -, I '~ '>i.;~,", ; , . ~ ! ;:~ .. .. o " ~ ...0 .: ..: . . . :ltW~ '0' .. ~ .. .. =: <> ~ !i !? / . i \:r{:~;~t~.L: :. ..... '-' . . l,:'/~f~~~:~: . ' ~ (~ " j .r.', I ~~'r~f~~~"~' 1'~ff~~;;1~')j~~!C I I I I I I I I I - 1-. . 24040' -' 81022'30" 81020' ---------------- A~eA :!~'-'A~~)(.~~A.TG" LO~A OF"F2es.:t-" WATER as o ~ t'\ . ~ _ r, - .-' .:' '.'.~-.~- j';fif$~- D ",. 7" J'J:-" E.~-s"~'>~: . ~ ']:. ~ 'Z 'Z t'\ r C) ~ ~ "S- .. -z. -z. ~ ('" EXPLANATION - 250 -- LINE OF CHLORIDE CONCENTRATION. DASHED WHERE APPROXIMATELY LOCATED. INTERVAL 250 MILLIGRAMS PER . WEATHER STATION . TIDAL STAGE RECORDING STATION . GROUND WATER STAGE RECORDING a MONITOR WELL . MONITOR WELL SITE - MAJOR ROADS - CANALS --- KEY DEER NATIONAL WILDLIFE REFUGE BOUNDARY o I 1/2 I I MILE I Figure 11.--Ch1oride concentrations 10 feet below the water table. September 14. 1976 23 r\/l~ r.,; 1-' ~ ~ , COUNTY ,<,:--::'-'", ,_ :h ~ :::-..., r;' 'I '';'7,; -.y:;, .....~~. .. 1 . 1 ,~ . , _ -: ~ ~ _ ~ 1.._ ~_ . ,.', -;; :-a .'.... I. . , ,~P? ~ 1= A T 1 C; U FOR ~.\ ~,:-,\', ~:, -; ~ G.\ - 2 ) ------ -~ -. ~ -; -~ 1 ) Propertj c ~':ners name & mailing aadress Date For Ufc'Di; r U~en: USE: "., '--:.J George Kyle 11-12-80 167 Maderi~LAvenue 3) ;.... --~ Phone number Coral Gables, Florida 33134 305/443-5165 4) Contractor or agent's name, mailing address & phone number :-, .~;-,~1' --,' i-~.::- .::-.1 L1 l. n~) c~ 'J~ -'-r--:"~1:-::;1-: - -.--1- -, 'j ~ c ..... ...... __ ... V vii \ -' I I, \) \..... I " ,./,~. . , ..,..... J ..... ..... -;;C- '.:--, r:>s "D ',.:-TI A"'V' nr--'~""'J" =- """"-'{ ~j. !, L .,M Ll. VI' ,"t I L ,J~ \;1 ,.I "'--- -............,.. Paul C. Kenson, Jr. & Associates, Inc. P. O. Box 92 Marathon, Florida 33050 305/743-3585 Section, 5 & S 1/2 of See 4 66S Key, 'Ai lJ pine Key Lo t. All Lots in the -Listed Bl.ocks Street, road or mile 2nd Addition - Subdivision. Port Pine Heights Bloc k, 30,32,34,36,38,40,42,44 46,48,50 & 52 5) Legal description of property: Township, marker, Range, 29E (if acreage) 6 Describe the proposed activity, methods of construction & amount of material, in cubic yards), to be excavated or discharged. SEE BACK OF THIS SHEET. dredqed/excavated fi 11 ed/ depos ited volume of material: c.y.22,815 C.y. waterward landward of M.H.W. of M.H.W. whose property affronts water way. c.y. 22,815 c.y. waterward landward of M.H.W. of M.H.W. code of adjoining property owne-rs 7 Name, address & zip SEE A'ITArnED LIST. This completed application form will be accompanied by the following, or it will NOT be processed. a) Two (2) sets of drawings, on 8~ X 11 paper, sho\\'ing location, plot plan, top vie\" and cross section of proposal, drawn to scale. b) Application processing fee as follo\\'s: $25.00 for dredge, fill, dodos OR any st:-uctures a ffronti ng n:ltural \,'ater bodies, $10.00 for verticl.l seahCil15 onman-m:'lde bodies of hater. $25.00 for any combination of the 3.Dove acti\'ities per sitc;" Application is hereby made for a permit to autho)Aize the activities described herein. I certify that I am familiar with the information contained in this application, and to the best of my knowledge & belief such information is true, complete & accurate. I further certify that I possess the authority to undertake the proposed activities. All provisions of laws and ordinances governing this type of work will be complied with, whether specified herein or not. The granting of a permit does not presume to give authority to violate or cancel the provisions of any county, state or federal law regulating construction or performanc~of construction of this type of facility. ~eorge B. Kyle. f K'le Brat ers and Co., Inc. X ~ / ~.. ," 11-12-80 -"0 ';::'.(;iI' ~ . Si ~ au Ii anti Date jFor Department Use Only Person accepting application /cX'Soo J?OS&Y Fee & receipt fr Approved by Assistant Director Cost of permit Estimated cost of construction PROJECr: Excavate four canals 525 ft. long x 35 ft. wide each with sixteen (16) 10 ft. w x 35 ft. long boat rroorings. Canplete excavation on three partially completed canals, connecting ther to an existing waterway. 'Ihe depths of these canals would be - 45 ft. MLW at the dead end increasing to -6 ft. MLW at the connection to the existing 50 ft. main carw.l. 'Ihe excavation will be done in native oolite lirrerock. and the spoil fran the canal system will be used to grade the adjacent upland and fonn a rip-rap shoreline above the rock level. This work, wAen~c9OtlPlished, will complete the existing subdivision and will provide -HZ- ~tfng:r.l' family residential horre sites. Dragline and saw will be brought to the site over existing roads and be used in the excavation. Bulldozer will be used to spread the fill. 'Ihe entire work area will be enclosed by turbidity screens until all work is completed. ". ;: J\ ~' L'...{ ...-t,r olTl ... ~ OJ ~ ~~ t"' (;\ /"', :" ,,'. " ..,;.....;<"'-./' :- :..~'\'"~'" ,.' "",'" "./ /'> \,. .-\'~ a(/J' ,"'~~ ~.::r'/.\l p /-.~,~~~~ '. ,') ~.0\ ',->'V z:.. PINS C~t..UIJ='...:.--_ ~ ~.::t..== ....- -~~ J ..... " ::....t"'.. ~ -... .~ ~ ~ ~ I '1 Jl , I , ' I I 1 I ..-..1'--- II i f ,-! ! ,\i~1 )I , ! I ;J. C : ! I I '{? , :iil !: ! I II ~ ; :r; "I ::::J - i i-- . I j'l....- -==:J , ; 0 ~I ~ ". (j ; , (" :~! I "I I ~ .:--' , ; , L _ _ __ __ ...... I: ( ._______ a ,~ Ii...., \ 1 ; Ii; '. \.: -' ~- - ,~,;- ; t I. ------. ~- - ---.~,-- - ;..... _" I I 11:Jl .-- ! i I Ul . r, v I :",' \. ~ ,}~ ~ : 1---, :==_---o"=_~ ;, ,. ~ r.: ; ; Ii::: : ~~ ~I I ~ ~ i, " :- - ~_ ::-1 . I t~' I I ~-; I r- II~- --~ - - :: 1:~ ~ J 9 0: ,I I., I' Vi'-''J> : i I ; r.~ ! \) ..., ill . ~ 'P11 :1 ~ : ~ 'r;1u I ! ~ i ~~., r II i! I r I r I -. ~ ; I i i 10 I! "1 I. , . , , : i , , , , . i -, rOt> fPj:,..... '2. r i -0 r,l 0 ,If r 0 - ....-/ -" Q()rT) :..: m r. po {TI r' ~ (} ,tt . '<J. "h I _l \)I _ 1: ;"11 ~ u I' fl, f',; C I ;-:=! \ ~ t. ~ -: .--; r; ~ t' V(\ ""r. ,~ I ~ . I ___ V ;. ~ v '~ - r .-; '- -Z V'. - /, ra , ..... ~ i i I I j. : I ' , ! .... ..... -.j ." .. c... ... C'- , I ~ ''''''-' tLil --~ _.I~: '~I Iii '"J :-.!:. ~.-:. TJ (if I~ ,'; v r ::"1",,:, .., ~o; [,~-z: SI(I}O C; f\,.."TJ ;-(!P C. 0 ~(\- r~"" .( - l~ r- (1 '1 - - - y r 0 -1 - z: C~ . ~ ~:1 ~- -, "-- I -~ . > - , , - 1_.- ! -" ~ ,r- r ;.., - ,- I Ll I. ~ '..l- :." &., ' 1'1 ::' I 0 · I' :1 ;! -1 I' II II ~~ C If (\ y- .,., :.... y. r i.J Or: " ~ i ZT', o. ... .. Ii' {} u. , i\ 1.1 1-' !-- -..I -, '--I l.-n I ~-;: _IC' :Il~ " ,_ (!O, l1' :('1r:, .<~- , r~ I. I .- ,. ) .':' .. ~ .-- r~ - . . -'_ Ol'~ ... \ r..... ~. ...... " ," <6~ 8 -00G70 ?re?ared by: ~e:1S0n & l-.SSOCi.3 '=.es, !:':: 7). O. Box 92 ~~3~~~~a~, F:orij~ 3-r:"( $ e 9~,:) ;:. =.. . ,,' C #~ ~!...::- ~':~)C-:E..-- -:. ~_,"~ I ,"'---- , -- \ C! P'1l....L r , -/ '. ~., " ----I, :1 I II I t~ ;0 II) r- I / \.:: ~,' /---..~-- -- ~--=- / ~-~, .':-- r i I " \1- -I - \ oJ- . . - -_._: , -1 r- .- :-,' -, : ~- ~ ~ ~ I I . z I J ~ -, i i 6 ,c ILL ~--_. --- !~ - ~'. "'. -- 1~1~ !~~i J '.... ". , ".,"." . ~; ~-I..' ! :' 0-- ~~ ~- ----~! 2 - '. :i.: 1_. ,-",': -...~_ c.. ---- -~. .~:. ~:::. -. - ? '7 \ L '_ :::, =: -;- I-.. \ 0:-. -::.. --- \ ....;.. , . ~- ! ~r- : 'i~... ~,"'-.I '.1 :.1i It\ It) It. I - <J ~ l; q ..J~ C I,. I ~ ~ J-. ill I " "" Lj ~ ~ ~I s ,:' i ~ 1l'1~. I 11j ~ _ ID 10' i $ ~, r r::l I I ~~. I ~ I '-- , --, '-- " 1-; i ~ '--. .:.-:.- f) ~ <g q 'lS -OOCoO ,":- :.-;- -S''':''~ ~QFG? Ie (: I '. I I I ~,::..::; r :-... - ,- .- .J : ; ~""1' --.J '.',....:::. !t.,'., .-" ~ "j r I ~i~i :/ ,/ ,/ ! 11 ~ -.J _r'~ " I -- 1 . ~ l__i I~ ;-- ", ~"',.", -, . I ' ,t, ___.J - __~:?~3~' ~ -. -:- r:--::-J \. ........ I '. ". '''4 .', ;:-, ,.' ". J . 'I ' .. T:J. _ j'-r:~ ~ --:.-.L.- 1~' =- =: '2- , ---- i ----- ~; ------- ~.,~ . 'J t " . , -'-~ : I I ,. :-' ". r!' ,... - -.. .. I. ";; . .. i..:. rr:-l ~ "':'" L e B \_ 'J 'D ~i I "'~ ,..., I ' . .-, ... .' I I ~I i ~ ~ !~ , " " " , l >.;~~_< [I __ _ ( , '5.:. '..l_' ?L~N- '2::\.....OC.K5 30 ::''32. ~C..e-L S - ~~T ""- .,J_ 2.0=::' :-..c>c:. \=~ ;:, =..' ,.J C ~ l.":'!.- :- \-.........u::o>c - !:. ~b r I -, (.,l 'p. LA tfD S I ~' , . i ~ \ i; ; \1 I .\: I . I ~ '- io 1'7 'D-=:-:' ---,....-=- ;;...-. /l~ / I' "-"'" .:--- -." , 'i - I 1~1t.:. I ..' I I! I I' ~~ .'~ ~ rl 1-' z: ~ ) IJ ,~ I I ~l..-.: -0 r! \) II _ -,!' , '> -- fa,;- I ::2 ~ 2- :! i): S-I--~f~~ ,- ~ : ~: \4 ' V\ . - -' L;dr~[JI Cl ...1 'l...: ----i--Z----- I~ ~ L I 5 ,i ---- I I [ ...---:-L-' ~ . , r- t",~ :, ~ .... I \ ,) ':0 ',', ::---- ' ~~.~. - ,I ~ :J l ,,-', ''I -I~ r=:'1 5- I .. I '::1 I ' '/ I 35' L I I I~ : ~~ : '2~r: r-- --I · : :.:_: ------- ,~. ~ -~ :1 ( l..-:-- ~ I~-I ... -, I. ':'.1 .; ;,~';.:. I ' 1.; 'cr. ~7 ",r - :;' , i_n~_~..- ..::~ ~ ~. \ , , / ---- --.~ ---" '.'. -- :..~.:-' ,'" r'~ .' " ~., t--- ---I, c5 , .:: ea.. -- Ii I I ~ h<~~_ I "".,~ ~- i I c I ~ ,-.', "!~ t " ~ ...; C; ~//\ ~ -...J I -l~ ", "I -~ ''''.~ '__1 . ~ t.1 .:;":=-5 , ;;-~ I -;:i I~ I P I q'l! I I I'll I I ~ I -~' ~ .' ~l"""'" , . 1_ ~ I ! I , I I j ! I J I I I V) .c '2. <t" ~ l.lJ S .-_~_9" r 3':> "" .........., ;::: ~. - - e ,_ \J ::; ....; 6 --~ !~I J '-.',', "!, ~"'11 .'"" . I , ! =.. (.:::.. ::~. -..:' \..:" ~ --:::. .. .- - ? t=-":":::"'~l_ r-=r-- o ~ "::" ~ :=Y:::: =- - .-., . ......-~ .::.= \ i_ ',_ --- ::::.::::. T L... \ '- -::. ~':::'A.L S - "F'e:=-T -- -- ~~ , " I . . , ".r,:- = 1__ _ ~ . ~ 5c. '..a..; f) \j 8Y'B- OQ00 PLt,.N- e,\.....OC.KS 3~S:::'';;' 2.00 :-..= ,-:- ---~ "'S'..:..~ !E.. .0 - :3 -' - v.: ~ I~ ~..:.!.-;- ~_c.>=->C - _Ui:. ~_'b I ,..--..... / \ \ / .---- .9 r , /;t/-LAN~S , I ,~,~, ---.--. 6 '':: ~. "'"'--~~~ ~-_:' ,'> ........... .......... ~, t... .---Jl i ~ \ I \1 --\ ! l~ 'r - -~'r~ -. ", "~'t V ; I~I,.,. \ JI---1~: ~;, ~- L, - -~ I~~' J. "..', ' ", h' "~I .J L--.j I -11 <i ~ i _ I~,' ~ ~I I "< -~ 'I ]:_-- 8---J,:~ ^'~~ L-,I- v,-Lf p~ tr. I~ . '\. ^ I (' Q ! C4 4i "'-J ! Co, U} ,'< - .- ~ ~df ~Lr+-+---- ~ l'fu -J ~ i. ---- ll.) .t1 ~~~ 1/ LU ~ ~ ~\! - :) "3 I,>." 11' I '~, I.?I So ~ ~o' FI ! I / ,--' ~.: ~~. r I ".',: ',' -+J ,~!o ~r1 :/ I I: \ 1 I ~ ri <,~<t If,. r- ~' I i I I I I~ I - iO I [\1 ~ ~"'-I- ~ '. ~.:... -"- c ~ C ~ ':.. " .......-J _. _l--:-j ", '! --, "'~ ~- ----J T-i::, -::.t:; . l-.... -- ~... '~-. ...... ". " iT n "''\..','\. v r- I --- ~' . i . l'1 i 4-, ..... '. (;.: ~~ " " -'" "', 'f ~ '- ',r::. L-......-..:_; _~<.?_' . 3-::__~ -t-- ~ . ' . ,e..., " 'l .' ;" l' 'J l . - ...--' n i ;"!:'_ :: ----'\--_.. ...:-L ~. '::) I \ .... (. f l~" " '. I L,:'p :_ I, __ - ~ . -' ":"7 =. ."~ '.. i"".... :; I 1(':'", ! '--- ,.. ",-.., --- ,...... . _ t: B'_'VD '5c "",' .t.N- :::lr~ <+0 o ',-OCt(..::::, ::- ':::'A-L S - 'FE:=-T o ~~ &_=- '_.. ~_ :.1.---::-__--=---=---==-=.=--~:---- :!'>C<:::> ,~- -- 'Z.,o=. ... ::::, '::-:.:-:::: -:-2' '..:. ~:::. ".- '5 ~::; '2.. .;=1. L',_ - - -, .. -- --'::" : '"' \ - - ----- --- \ -- "S\..:.. '": ~ CJ rCo I i I I I i ;:-""'-o=.c ';)0' ,...' ,-L... J C.c:. ...: L '- ----- ':.c-' :.. ! -I tE.. , ,. 6 ) .--'-~?_--.._._.: ... ~ _J. ,") , I I ! , I { I '-f I. e ! ~_ _ _ -..::. ~ r:: ~-~ '., t -;-- " 'i:. r : ~ 4-"") 12' j 0\.:;; ~ '~~~i ~.J- 5~' I . , ' n)1 I '^ L!E' ! ~ ~i I c:.. c:: ~~ f~ J :;~: "-,',' '.'1 r- , -.. '-, ,J, uJ ~- S .-- , ::;::--- . Jt-= <f r c:). ! '< z! ~ ~ I ...j \J Cl '::S :: i _ ,,:~.: .----- p ~ 1::. ~ - ::::, ;,-0::'i<..5 :::- c::.. A-L t: - 'F'2. tA: T c~.:_.a:- !-1_-~~~ ~-. - ~-~ - i 1 r ! I: \ : ..~ f .:J V1 <J '< ~ '" Q... ~ 4- ~' I 47- (. ~ I J I L , I 101 r I I I '3 ~ , c;__~ ~ ' .'- i:'~ ; ! L I ''''' '\ ~,: t~ ~ _.~-=.:--: -- -- - '2 \0.: ~~ . .... :...... ',T, !'2.'1,'=- -- ,..... _. . /."; . '~~'_~. BLVS '5::: \1-...'. 4-;J.. ;:. 4- 'f 'J-- -~- -...... i ;." .....: c::: ='= : r.----:: 6- _:::::.-~---- _. --- - -'-~~\ -:.. '- . -'- ~~T~ '. '- =- . ~;~J, /J ~, \v '-.~'V V ~LI B-ooloO \-:..-- S'~~':' c;- 0 ~ .& I ' I I I !l <J. 0 t:' " ;s ,~ I I I I I I I ~ ' fI ~ ~ -...-f- - ~ , .. ~. =" ! -~==- --==:,.., .... , , I I . ; "r\L'_ VA-D ,jl ..::....___~ ~-= C v~ i I j.\ - . I I~! I I:; I I' . ---; ..... , I 1 :' ,;~ tc " . ---: --- f-~~~ J r :! iI, 4- I i I i ,,____1 I f;..-, ~ __.J I I . , ! " t-- "'! . ~~~ I, . ... , v.J: t~i; -:.c.. -=-, -' ..... L-~-'- . - . ->,;; - 1'-... C, .\. ~ _ ~'O ~ .. " I '- -' I. 'i:' 1...--......,,-_ \ ""....,.... '_l__ t ,:"",,; ,-... / \'\ -:: -:::... .......... ~ ~- (2L .\ < Cl..-=.t:... ~ " ( c:. ~ ~ ~ ~!:u \ .. .. ; c",_ ~,_ .., ~. V" -'- , ---.. - --, ';= ,. L -- I \ ,-S '1 . ~.,.....- --\r I ' _ ........_ r " \., ~ - -- ~ ".-'- '~ ""- \Ii -= ~~ --:J ; V ('\ -: -' -. -' :. fl4, -~ ~~ ! ' _i ----~.~. _A\. ::::=____ -- -~~:::~~., ~~:?:G~~'~~- .' ...... ~ .. '~:_-- ~~ ~ .:-j'i?, -C6C9 () ~ " <3 F (0 " w. -'-, " .,..... '~&n..:.;,&.":L'"""'-"'-' &" "~"-"""""""""""D&-'-~~~..a",,~__"~. f;,~,~-....,.; <.. _ t;~~,"""--:'r,"~J!!!'II">'l.....".........~..It-1~4""1.''''~,' . PER~IT APPLICATION APP~\ISAL File No.: 44-37258 County: Monroe Date: 2-17-81 ~.pplicant Name: George IZvle Address: 167 Naderia Avenue, Coral Gables, Florida 33134 Agent (if ;applicable): Paul C. Kenson, Jr. & Associates, Inc. Address: PO Box 92, Marathon, Florida 33050 Location of proj'ect: Section(s) 4 & 5 Township 665 Range 29E Section(s) Township Range Local Reference: Port Pine Heights, 2nd additior., Big Pine Key. ~\Ta ter Body: Pine Channel Water Classification of Project Area: III Adjac2nt Waters: III Aquatic P~eserve: Outstanding Florida Waters: National Key Deer Refuge & adjacent to Gt-Ci't \>Jh~ te He r}n Na t~on.:tl \n l.dl~r e !{e l1...1ge. On site inspection by: John A. Meyer Date of Inspection: Revised Application: Yes XNo 2-2{~-3l Original Application: Yes No .'\ Date: S.A.A. Date of 2r.d Insp. 5.A.A. Bioloaical and Water Quality Assessment A. Description of proposed project a~d construction techniques. ~Quantify area of project which extends into waters of the state (including the submerged lands of those waters and the transi- tional zone of the submerged land) as defined in Section 17-4.02 and Section 17-4.28, Florida Administrative Code. B. Biophysical features of general area. Include co~~ents concerni~g extent of development of adjoining properties as well as relevant historical facts about the area. C. Biophysical features of specific ?roject site and spoil site i~ applicable. Include identificati':J:l of bottom types and any relevant historical facts about the area of t~2 project. D. Potential impact of project on biological reso~=ces and ~vater quality. Acdress long-term impact as well as iIT~ediat8 iwpact for all aspects of the ?roject. E. Suggestions, '...:here appropr i.J. te, ~')r ::-:cd i fica t_icns that :nZl y red'lCf'\ or mini:nize the potential iQpact of project, PE~~ l6-l0(Rev.6/79) ......._._........_'1..,..,.~~~~~.~"....,..,..<..~........,"'...--. _~ .". -~'lII:..il~..._;Y...,,;~.._. .,.H'......,'!-"i:'~~~/,.,...""~.-o(l:!'-.....,.I;..~~:......,."...........,..'-~ <'P-~~.*" .........1I".,.~.,..,t........ . KYLE, GEORGE #44-37258 Monroe County - Big Pin2 Kev Page Two A. The applicant proposes the boxcut excavation of four new canals and the remcval of plugs on two Ddjacent, existing boxcut can:!l:; to complete a man-made residential deadend canal syste~. The newly created canals will be 525 ft. long by 35 ft. wide, each with sixteen (16) 10 ft. wide x 35 ft. long boat slips. The excavated' canals would be -4 ft. at MLW at the deadend and would increase to -6 ft. at i'lLW at the main canal connection. The canals to be connected will be backfilled from their present depth to a sloped depth of -4 ft. MLW at the deadend to -6 ft. MLH at their connection. Approximately 22,135 cubic yards will be excavated above MgW. ThE applicant states that all of this excavated material will be deposited on the applicant's adjacent property, to "be used to grade the adjacent upland and form a riprap shoreline above the rock level. 11 No mention is made of the ameunt of backfill to be placed in the existing canals. No oention is made of the techniques to be u~p~ for backfilling and bottom grading. The applicant 'claims that the- adjacent property proposed for filling is upland. This area was previously low transition and submerged land which has now been drained and isolated, so as to o~empt it from D.E.R. jurisdictio;,; though much of it displays standing water on a year-round basis, Dragline and saw will} 11+-1.1; zc~l for excavation purposes. Bull- dozers will be used to soreau ~he fill. :"u-bidirv screens will enclose all work ~reas, ~lthough specifics are no~ given on th~ir placement or utilization. ~ The purpose of this work is to provide 96 single-family waterfront residential home sites connecting to open water. The material excavated and deposited is primarily Xiarni oolite overlying deep Key Largo li~est0ne, although there exists a small amount of area containing a shallow peat layer. B. Port Pine Heights Subdivision contains two separate existirg deadend canal systems. The norchernmost canal system is a relatively shallow sY3tcm that was excavated between 1959 and 19~2 a~d which is presently 30-40 percent developed. This canal 3YSt~~ was constructed with a main ca~31 opening into Pine Channel and extending arnroxlJoat...:ly JOOO te,-'t inland with 11 perpendicular deadend branches. This system, in general, has areas that are well r~"'_T""""'lIW!;~~"'~~-_"'f -... ....lr'"~!~.,'~~ .~,r~,<",.$<tr;o:':t;'Df-'t!I'"1..-':-I"~'~;~'ftTlI;1P'f':;_t';~~~'~;~'''~l:!.f1lJ~,':'~'''!~1-~;-~~~~..:I.'-1t'ff:n':'~rt1!r~: KYLE, GEORGE :/.U~L~- 372 S8 Monroe County - Big Pine Key Page Three vegetated by seagrasses and other areas that exhibit detrital acclffilulation with no visible benthic vegetation. To the south and still within Port Pine Heights Subdivision, the larger dead end canal system is found. It is this system that the 3?plicant desires to enlarge by cxtendinf, and connecting addition Derpendic~lar dead end branches, of which 20 such branches now ~xist along the 6000'+ main canal. The present side, or branch canals have been and are proposed to be excavated across from each other on either side of the main canal. The six new canals are situated from 3500 to 5700 feet inland from the main canal opening into Pine Channel, a natural body of water. The canals within this system were excavated from 1965 to 1970. The canals that are presently plugged were excavated in 1972. The depths in the open system vary from 5 to 18 feet. The lots on this canal system have been approximately 5 percent developed. In all, over 400 lots have bee~ platted along this canal system (this is excluding the platted lots to the north with Fort Pine Heights Subdivision). The general si=e of these lots is 75'x 100'. As far as can be determined, all residences within this subdivision utilize septic systems for waste disposal. Hany of the residences here have seawalls, basins, ramps or other shoreline development. There is no planned storm water runoff control development (swales, lot grade uniformity, storm drains, etc.) within the subdivision. The offshore waters of Pine Channel, between Big Pine Key and Big Torch Key are shallow (0-5 ft. ~IT~J) with extensive grass flats, algae cOIrnlunities, cvrals and sp)nges over '-he har~<,: TrJrr: (,.-_ posed bottoms, Shorelines of surrounding keys are mangrove fr:.n:' -:d and water traDsparency is excellent throughout Pine Channel. .J The project location is 3long the northwest end of Big Pine Key. A fresh-rN'ater lens is found from 2-20 feet ~elmv the ground here, which is primarily Miami oolite. Before the developm~nt of this subdivision, this area was a low wee lands area with transitional- type vegetation and scattered_submergene mangrove communities. The preuomin.::lnt 1;vind dil',o",::,,:!..,lTl here is ea::;t-southeast, althoudl the wind direction is primarily from the north during the coljcr winter months. Tho at~plicant apr'lieJ t:o open the present plu:_;s .:md to E'Xcavat,~ four new canals in 1973. ~ater certification from DPC was Jenied in this same year. In 1975, this applic~tion was again appraised and jeni:l1 Has recommended(samL: as present .,pplicacion vlith the .......,....,., 4"~~.v. .,;,.,~~.f..,.',...._I'.,;..o'N..;:-;<.,.:'I,'lf;..~".. ,I', .,". 'O'i""'''S~'':~m_ ~r-t' \-'I'f! :.,...,t;""'"~~~~~'..~if'r.ii'I~~'~J'"t,,....,.lt""l"T1'''.I>l.~''''f:::-':,,'Jt, :~r;''fI,1~~'"._: I'~ :-:- ~'''<\'~~;'.''.Y'711"W;:-,'''','''J 'O'l 7'''''.~i '.' KYLE, GEORGE 7144-37258 Monroe County - Big Pine Key Page Four exception of the depths which :'Jere a uniform 8.5 foot HU'!. as compared to an av~rage -5 feet Xl.W now proposed. Additionally, the original application did not include the basins now proposcJ) This recommendation '>vas upheld on October 22, 1976 in an Administrative Hearing (Kyle Erothers Land Company, Inc.. v~.;. DF;' It was decided at this time thnt reasonable assurance had not hev'l provided that ;:"ater quality sr.mdards vlOuld not be violated. uC particular concer:1, as pointed ()~lt in the "Conclusions of L.:lw". '>olere the means of ~'Jaste disposal which '>-Jere not of the "latest modern technological advances", as required by Section 17-3.09 of the Florida Administrative Code, to insure adequate water quality. C. The existing canal system from I~hich the applicant proposes tc extend, is characterizeJ by a highly diverse population of sessile, filter-feeding organisms along the top 3-fi feet of the verticnl canal \-7a1ls, filamentous algae :~rowth along the bottom portion of the deeper walls and a sporadi~ally lush (but heavily fowled by epiphytes) growth of seagrasses and algae along the bottom with many bare or sparsely vegetatc(.: areas that have collected plant fragments and other organic detrital matter. As a genernl. hut not hardfast rule, the shallower bottoms display denser vegetative growth with shallower sediments, whereas the deeper depression.. and incongrui ties have sediment accumulat ions of up to four feet and a higher proportion of green algaes (primar:LlyPenicillus sp., Batai?hora sp. and Cladophora sp.). The seagrassps found in these canals were primarily shoalgrass (tra10dule ....lrightii), and mana tl'e grass (Syringodium filiformiE:) ,'lith some turtle grass (Thalassia testudinum). J . Ttlater q:.rality, at present, is ,-'xtremely marginal, at best, ,.Tit:1 numerous thermoclines detcctc"! in as shallow as six reet of watel.- (terminal end of branch canal 24). Oxygen levels wit~in this system are highly variable, with extremely low levels as a resul: of high respiration rates. v..:~!':.d-driven circulation within this s\'stem is better than most, T,.:i.en a favor:lo1e east to Hest orientation in the main can:1l, Problems do exist, hm..rever, dur info THin ter months ,.:hen a predomirn;1 t nor ther ly ~'lind aff ec t s southern main canal branches and dur-i:1i; summer months. when sOl.,;therlv r.vind~ inhi bit outgoing c i-;:,~ u La t ion L 11 the norther.n branches . At the t iy', of the on-5 i te ins pee t ion, f~,..~ t i ng, ,,'lind-ar i ven veget,l t ive denr i'~ \.las collecting :Ln the northc,,;'n :n-anch canal~; as a result of souther~y ';vinds, - ..._,.-....~....."."'/::'r.'1'~,H-"~.,:;~~"l:(~:,,"'-'h"l'"',..~..~..-~1~.....,.!;~"-l: ~;.-I"~".'t'"-,t""""~,..!;..~{""'-~~.l"~...~'kr~~~'!lT-ry,,,-~'~~~~<,.~~,H~-~-.:tftlt",.".~'"{!1I! t "'l: k'YLE, GEORGE if 44 - 3 7 258 Monroe Coune} - Big Pine Key Page Five Indicators of current problems observed \Vere the collection of dead seagrasses along the bottom in the southwestern corners of all the basins in canal IS (these nasins were cut out during t~e original canal excavations as is planned for the proposed canals) . and the observation of severa.! cead ~~sh (Haemulon SD. (2) and one Caranx hiEE.22). Also of interest is the extensi-Je gro~vth of filamentous algaes (Enteromorph~ sp.) within the deeper canal areas, primarily those deeper canal walls which receive sub- stantially less sunlight penetration due to shading. This is especially true for the branch canal walls which have a north! south orientatio~ The upper portions of the cana 1 'valls have a hard, irregular :'fi.r- ; oolite surface, although one arc",l in the northeastern part of th,. system displayed a one to two foot deep mangrove peat layer. TflL' walls throughout most of the canals have many cracks, fissures. and concavities, c'mducive to a:::tachment for a variety of mollu3;'.; (thin shelled oysters (Isognornon sp.), mussels and v::trious gra:: ir: ~ snails), tunicates, sponges, anenomes, and algaes (Coloomenia so- Acanthoohora sp., Udotea sp, H21imeda sp., Acetabularia so" and PenicilLus sp.). In aaaition~:3everal species of crustacea (xanthid crabs and spider crabs) were observed along these walls, Fish were espec ia lly abundan t bo th a long the CClna 1 \Va l1s and bottom. The wall fiss"Jres are utilized as protective habitat Cor mangrove snapper (Lutjanus grise~~), small grouper, sheenshead (Archosargus sp.), and grunts (~la~_lo.!:! sp.). Those f ish found along the bottom and, in particu1ar, among the seagrasses are pinfish (Lo-odon rhomboides), grunts, snapoer, ffiojarra. killtfisl~. silversides Menidia sp.). anchovies (Ancho~ sp.) and barracuda (Sphyraena barracuda). J Also along the bottom, primarily in the areas supporting dense benthic vegetation, were horseshoe crabs, scattered anenornes and sponges, and, where seagrasses ~ere less prevalent, Cassiooea. The plugge~ canals proposed for opening are deeper, on the aVLr~~('. than are th,::, open canals (depth range of 11-20 feet). Hater transparency is lower here. T~~peratures and salinities are extremely variable, limiting spl?:cies composition primarily to green algaes (Batophor~ sp.). ~ith the exception of depth, the physical configuration of the '.'losed canals is simiL~r to that l,t the open canals. The spoil areas to be filled an~ utilized for housing develonmpnt are transitional, for the most p~rt, with a dominant species ...~_...!.e:'~"'.''''''O:W':t'l:t1!'''.''';V:~~N;''';'-'''':'-'J-\~ ,~.,..._~~.t","'~l.!ttt.....,~,., .-1' .!It,.t''fJ-~-!'~~_ ',r:"~~!1:-t;~.2!'~~~,'\:;.~.,~'::?"'~~~1;!V~:r~~~~:~~' KYLE, GEORGE #44-37258 Monroe County - Big Pine Key Page Six composition including buttonwood (Conocarpus erecta), salt grass (Distichilis spicata), and sea daisy (Borrichia sP.). These transitional areas are isolated from the o~en canal system by an approximate 70 foot wide fill strip which parallels the main canal for its eastern-most length. South of "the second (counting from north to south) canal propose:! for total excavation, lower elevations are encountered inland. Altho~gh mosquito ditching is evident in this area, there exists many permanently submergent areas \vhich support stressed ?opulat if>! of \.vhi te and black mangroves (Laguncularia racemosa and Avicenni.-! germinans, respectively). These waters are, in general, hyper~~i~~ with many dead or nearly dead individuals. A few general observations can be made concerning the existing canal system which can be correlated to the conditions expected over time within the canals proposed for excavation and openin~" ~ Sedimentation (almost exclusively organic) is very much evident: from recent years (comp<lrison of 1974 and 1980 Environment.:il. Survey data), especially ill ::":,.e rr:ain canal. There is a defini:e and discernable correlation between the age of many of the canals and their sediment depth. Much of this sediment is due to the natural dying off and settling of the mature seagrasses and algaes found within the sysr0~ This resettling of the dead vegetation does not, at present, ::>liVW ~' ious signs ui over loadin8 the system (the deeper areas that support no visible vegetation are marginal in this respect and may contain anaerobic sediments). The present benthic floral co~nunity appeared to be at or very near successiona~ maturation (to the point possible) and it is felt that this community is more likely to decrease in density rather than increase over time. On a positive note, the existing system provides a good deal of marine habitat and is very prod'..lctive in its ovm right over much of its area. Vegetation and fish life thrive in many of the shallower areas and the upper- l~3nal w31ls ccntribute both to the food chain and to water qualitJ which, in terms of transparency, is very good throughout most of the system. This is touched upon in the applicant's Environmental" Survey discussion. There are, however, some points worth mentioning concerning data compiled in this surv~y" As far as can be d?l:cn:1ineu fr,.'''l the da:::'_ the algae traEsects l""~re perfor::ted in shallO'.ver tlLHl aver.'lge waters, indicating a higher percentage of ,-Ja11 c()vc~"age 'oy algae" The one deep transcc" performed was at t~e ~1IO staLion wh~rc coverage was recorded at ~-. :j c r J'~ ~ .~;: ~ s:-,; ~ ~~ .' \ F i. or{ 1 C/\ [;ErARH!E;.. V' ,..... - ";".'l.L ?,l:Gl;LJ\~'''': I J1 th2 "leU t,'.T 0 f: A p P 1 i cat i v (\ for perm it ~ile ~o. ~~-37258, Monroe County Georoe :<.yl 11 5-;P~~D'-W' [Vi I.~ (~.~~!,:: .~ \L':ij8~ ; ~ l1:J '..... ,::; b;, ~:/ !'; ~ i ~~ 1 .' \ \ '->, i.. .; '... APR 10 198' ...,:~j Seorl)e Kyle cia Paul C. Kenson, Jr. and Associates Post Office Box 92 Marathon. FL 33050 IrHENT TO DENY MARATHON. FLv.\I:JA The Division of Environmental Pr>n;tittinq herl~by qives notice of its Intent to Deny YO!Jr r;en:it aprlicatinr;. sDecifi?/l abuve:. T)[jr5UaYJt to Charters 253 und 403, Fiorida Statut""., and Public La,-' 92-S00. The Division is issuinq this intent t.o dr'n'1 for the rcasow; stated beJe\'l. Thp .1pplicant, Geor'gc Kyle, ap.li.'d Nover,bf-~r 25. .!SHC fer a J:lerr;;it to eXCi1Vil:e four dead ,~ncl canals anJ t-.J CDI',rlete excavation of :\.,.a partially constructed dead end canal." The six canals are proposed to be connected to an existing dear:! end r:(~nal system. The Department ha~ jurisdiction under Chanters 253 and 4()3, florida Sti:ltutes and Publ ic La\'/ 92-500. as d:~(>nded, for permitting dredqe or fill activities to be conducted in or connected to waters of the State. The ex; s t 1:1g dead end c~ na 1 sys tern c.n' ected to Pi Or) Chanr:e' '-:-,15 t i tute'" waters of the State over which the O~pJrtment has dr~d0e and fill rermittin~ jurisdiction pursuant to Subsection 1/-4.28(2) and 17-4.29(1), Florida Admi ni s trdti ve Cede. <-Tile project i,; nCit exemnt from permitt i no rrocedut-es. The applicant was officially notifi0l1 by the Oe;Jartment that J dred<J? and fill permit would be required for the proposed DfOj0Ct. The fie 1 d a p p r a i sa 1 0 f the [1 r 0 ! ,~c: t sit e f 8 r the e v i"\ i u a t i Ci r I r f r. h e prorosf,d ;:woject \'Jas SU~):;iitted by DEJ:Jr.tment stJH un ~\1:~ch H., ... .,......, i ::'0 C . The field appr-aisdl indicates that rnc exist.in'~i .:anal ~;\st~r;;, \\ii),:~, ttlP ~ applicant proposes tc extend, is ch:->".'cteriz0.d b'l a. hinf'ly civer~:~ populatior of sessile, fil~:er-feedi":; Y~)Jnisr;is dlong the tr.;;) 3-6 fe<:t of the vertical carl:!l Ivalls, fila'~erl'c-lI<' alqde qr'o\'!tr. '::10/19 the ~,~tton portion of the deeper I',all:; and a Sf.Jf~.!(dical1y l'.:S~l (Sl!t ~leavily fO':/leu by epiphytes] Growth of s0(j~lrJSSeS 2".: 'll,lao. alonq the ')ot~O:1 \..;t'l I:'an'l '.. --- ....-... --...._-.........,...-.....-~- -~_~.......r........-._...".,,.~.,,......~....~~...--'~.,..-,_.... _.- .'~'.- bare or s~arsely vegetated areas th~t ~ave collected plant fragments and other orqanic detrital matter. The existing canals pxhibited v0rtical strJtification wlth numerous thermoclines detected in as shallow ~s six feet of water. Oxygen levels \'/ithin this systei'l are l1i<lhly variablf>, \'Iith cxtndiely low level:; liS a result of high respirJtion rates. Overenr'ichment of the entire 5ysteJ'l over a 10n9 period of time is expected. Organic depositlon is pres~ntly pushing the overload point in J:!Jr,y parts of t.he existinq system, Clnd the orenino of six ne\', call1is (potential for nearly 2::> percent incrrdse in total ,.JbdivhilJ', GCd,!:cI1ClI could very possibly add to this overl.)ad. Overenl"ichment may develo!l over time, due in part to the expected introduction of septic systGn 1 eachate into the cand 1 s. Becallse of the porollS, fi ssured substrate involved, this possibility is increased. Storm\.,ater runoff \litl1in the development also has the potential for contributing to overenrichment~ \'Iithin the neN and existing canals. Domestic emissions (oils. qreases, fish carcasses, deterqents. ~tc.), expected as a result of increased boat usage within this system, will contribute to the water Quality pl'ob 1 ems. The existinq canal system is 1n violation af the disso1v~d oxyqen standard for Cl~ss III waters. The De~artment's hydro~raphic asseS5ment indicates that the flushin(1 time for e,lch of the oroposed canals to reduce a pollutant to 10': Of an initidl concentration is approximately six (6) days. This is a conservative estimate and is only for flushinq between the proposed canals and the main canal. The flushin~ for the entire system would be consirlerably lonQcr. The applicant has not provided reasonable assurance, pursuant to ~ Sections 17-4.07 and'17-4.28, Florida Administrative Code, that 10nQ- term impacts of the project \<lould not result in violations of State W2ter Quality Standards for all surface waters and for Class III surface waters. Specifically those standards which would be affected include the followin~: .~__...__. '~_'''.''1.'''_''~''-'' ~,.......... -4...."..~~, "II! 1lI1 tt. Jill ~~'J,~~~,.,.~~.""IPt;""" ............~:;ft~~~.~-... BOD - shall not be increa:;ed to e,':c.2ed values i,thich I'iould cause ,1issolv(\J~xiqen to be depressed f',~1o\'1 the limit '.~':)tiJblished for each class llnd, in r;o case shall :t be (jreat er.)uqh to of'oduce nuisance conditions. Detergents - shall not exceed 0.5 milligrams per liter. Oils and Greases - Dissolved or emulsified oils and greases shall not exceed 5.0 milligrams per liter. No undissolved oil, or visible oil defined as iridescence, shall be present to cause taste or odor, or otherwise interfere with the beneficial uses of waters. Bacteriological Quality - fecal L;}liform bacteria shall not exceed a monthly average of 200 per 102 ;:] cr1 sample, nor exceed 4CO ger 100 ml of sa:nple in 10 p?TC?nt c:,r the 5'dii~~,~.::S~ nor exceed 800 'Jer " 100 ml'on anyone day, nor exceel1 a total coliform bacteria count . of 1,OQO per 100 101 as a monthly averaqe, nor exceed 1,000 !Jer 100 ml in more than 20 percent of the samples examined during any month, nor exceed 2,400 per 100 rl at any time. Dissolved Oxyqen - in predominantly fresh I-/aters. the concentration shall not be less than 5 mi1liqrill1ls per liter. In predominantly marine waters, the concentration shall not average less than 5 milligrams per liter in a 24-hour period and never less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained 1n both predo~inantly fresh waters and predominantly marine waters. J Nutrients - In no case shall nutrient concentrations of a body of \'Iater be altered so as to cause (1I1 imbalance in natural populations of aquatic flora and fauna. ?ursuant to Section 253.123, Flcl'ida Statutes, the project ;'/ill result in the following matter adversi' t~ the public interest: .~,.~.. ..;..,-.,.._~;.I.,~-\~t>ft'tP~"SJ\.;,......"...-~~ ~"""'.'~~"".--"IV ....,...r...".~l. ~""ft5.'''''-~''~~<<~'____:~~~~~'''_' .~...l'. Interference '...ith th.~ ccnserVJticlf' ur fish. !':anne -.:nd \:ildl iff:. In additien. fHJl'sul1nt to Subs('c: 'J!~ 253.12J(2)(a). FloriCtd S~dtutes. the clpol icant l:as not i:;rovdcd an ~lff )'I"ative shevJin'l of ~:P ;)uf-:>; ic interest Ivhich v/ill be ~~ei"I."'j by tt~e ::ropo::;(>u drr->dCjinq. Trlis Intt'nt to Deny snall be pl';l,.~d br:forc the Sec.rctarv for find1 action. unless an i'!ppropriate petitio!' for ii hearina pUrSll<1nt to ~he provisicns of Section 120.57, Florida Statutes, is filed within fourteen (14) days from receipt of this letter, The petition ~ust comply with the requirements of Section 28-5.201, Florida Administrative Code. (copy attached) and be filed with the Secretary of the Depar~ment of ~nvironment31 Regulation at 2600 Blair Stone Road, Tallahassee, Florida 32301. Petitions which are not filed in accordance with the above provisions will not be accepted by the Department. At such formal hearin~ all parties shall have an opportunity to respond. to present evidence and ar0ument en all issues involved, to conduct cross-examination and submit rebuttal evide~ce. to submit proposed findings of fatts and order, to file exceptions to any order or hearin9 officer's reconrn0nded order, and to be represented by counsel. tiu Executed thiS~. ~ day of Jl.pril, 1981, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION: ~# ~\L__p._~~ Suza . e ? Walker, Chief Bur of Permitting Twin Towers Office Building 2600 Bl~ir Stone Road Tallahassee, Florida 32301 J Copies Furnished to~ DER, South Florida Branch Office. Marathon Florida Game and Fresh Water Fie" Commission South Florida Wdter Manaaement District South Florida Reaional Planning CClmcil U.S. Army Corps of En~ineers, .Ja..:ksonville .. ";""'~"',;,-:'w~.~,~ '::(~Tf:t'f'?".~~~'~~~.~J'~1f'f.ec~r~;1.."(t"".'rr"\t'..~m:~~',1"'''.~~~~i~1Jt"J"~,,,,,,,"'~..,~..g.~'t""''''f'!'rl''''''''''.;'''",~:'~''''',,!, KYLE, GEORGE /;44- 3 7 258 Monroe County - Big Pine Key Page Seven one, two and three meters. The average coverage at this stntion was 32 percent, as compared to a consistent 80-100 percent recorded at all other stations. Although it is not argued that there are many bottom areas with dense seagrass and algae coverage, the accurate representation of this coverage (applicant claims all areas are 80-180 p~rcent covered) -i"s misguiding in that many areas were far below this level. The organic composition of the sediments analyzed in the open can;:l system a~'eraged over 11 percent as compared to a barely traceable amount of organic sediment in the closed system. The tidal exchange data collected, shmvs definite tidal action between the plugged canal monitored and the open system. Although this plug is at least 20 feet in width, the exchange of water here shows how permeable the soil in this area is. D. Excavation and opening of the new canals to the depths proposed should result in systems similar to those shallow systems now existing. Seagrasses and algaes are expected to cover the canal bottom, with Halodule initially stabilizing the sediments and Thalassia eventually taking hold. The carll walls should provide good sub- strate for many sess~le filter-f.'eders, as .~ll a~ ': .lnv-;;:.L'c: (' fish, mollusks" and crustaceans. There is, however, ex~ec~ed to be a good deal less diversity along the lower Dortion ~nd base of these vertical walls due to shading. J Except for initial turbidity and sedimentation problems associateJ with dredging, the initial, or short term affects anticipated from this project should be mini~al. The shallow, slopi~g deDths of the new canals should promote good tidal flushing if bottom contours are kept on an even slone so as to not create discontir:- uities. There may be a small problem ~ith wind-driven detritus during the sUr:'JTIer months. This detrital m3tter may tend to collect and accumulate on the canal bottoms. The addition of six new c~n31s to the present system will decre:lse overall flushing of the systcn Lind in this way may contribute to benthic d0t.rital accl.lTIlulatior. lw concentrating the de31 vegetative litter that would be flushed away in a naturally free-flowing system. '.. ..... . .".....~._....,.........,....'!-.~."_""'''',,..,>;J<(IIr..J!IIJ>Il~lf~'''"'..~.~~~...l!I:\l!Il\'r.~'!''J~~"1~~~".'P'~~~Jl.Il?lI.l!'!"'... . KYLE, GEORGE 1144-37'258 Monroe County - Big Pine Key Page Eight Of greater concern is the anticipated overem:ich!nent of the entire system over a long period of time. Organic deposition is presently pushing the overload point in many parts of the existing system. and the opening of six ne',,, canals (potential for nearly 25 percent increase in total subdivision occupancy) could very possibly add to this overload. Overenrichment may develop over time, due, in great deal to the expected intro-' duction of septic system leachate into the canals. Because of the porous, fissured substrate involved, this possibility is increased. To a lesser. but still concerna~le, degree is storwwater runoff ~vithin the development, which also has the potential for ,contributing to overenrichment within the new and existing canals. A final concern are the domestic emissions (oils, greases, fish carcasses, detergents, etc.) expected as a result of increased boat usage within this system. I feel that the excavated and opened canals, after being stabi- lized by benthic vegetation, should maintain good water quality standards, but that natural eut~ophication and organic sedimen- tation, combined with the potential for additional loading by future development, could significantly degrade water quality over the long term. Such long term degradation would be ex- pected to occur first in the existing older system, but would not necessarily be limited to this system. A large part of the overall problem is the poor configuration, depth. and contour or the existing older system. Although the proposed system may be physically designed so as to function properly, the system as a whole is susceptible to accelerated eutrophication. ,,, . ~ 0\. . . . .,',.' ., .....-- .,' . ..... ,,;'.' :t___""" """"'""""t? ~'Tl . 'fO"",""""'," ,.j'~~~""'!<lIi'1!"'''''''''~'',f;~~Jl<~~c~''';~~l~''~"if.''~~!l~~~"...,......, '"",.w.t.l!M::'1U"."..".,.'!~ .'I'~> KYLE, GEORGE #44-37'258 Monroe County - Big Pine Key Page Nine E. Due to the potential densicy of development within this subdivision. I would suggest that a central seHage treatment facility be seriously considered by the applicant. I would also suggest that some form of scorrmV'Ui:er runoff ('ontrol be incorp.orated into the subdivision. To provide increased habitat ,desirable for marine biota along the canal walls and to offset undesirable shading, I would further recommend sloping of the vertical canal walls. ~ r /' {\ /\ "-~~ \.-\/'-- L-"--' I ~' '--'~_.. JOH~A. NEYER, ENV. SPEC. r:( Date: 1'~~~}1 9;.1981 (11/) ...( ">./,,,; Read: \:---/: ,-~11!"/ '..) ,. 6LEH 'BOE .J JAH/dvo STATE OF FLORIDA DrvISION OF ADMINISTRATI'lE ~~I~GS KYLE BROTHERS !.Al~O COMP lU'n, IUC., Respondent. ) ) ) ) ) ) ) ) ) ) ) CASE tm. 81-1240 Petitioner, vs. l STATE OF FLORIDA, DEPARTMENT OF ENVIRON~mNTAL REGULATION, RECOMMENDED ORDER Pursuant to notice, a formal hearing 'tlas held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXMIDER, on October 5 and 6, 1981, in Key West, Florida. APPEARANCES For Petitioner: tUchael E. Egan, Esquire Jane E. Heerema, Esquire P. O. Box 1386 Tallahassee, Florida 32302 For Respondent: Paul ~. Ezatoff, Jr., Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 ~ BACKGROUND By 3pplication dated NO~lember 12, 1980, Petitioner, Kyle Brothers Land Company, Inc"l/sought the issuance of a per~it/water quality certification to excavate four canals 525 feet long by 25 feet wide each with sixteen 10 feet wide by 35 feet l?ng boat moorings, and to complete excavation on two partially completed canals, connecting them to an eXisting 50 foot :nain canal, all of '.vhich are loea ted in Biq P ine J~ey, )1onroe County, Florida. On April 8, 1981, Respondent, Depar~~ent of Environ~ental Regulation, issued its Intent to Deny the requested permit application on the grounds fal "...applicant Chadl not provided II The original Petition was filed by George Kyle and the style of the case reflected him as being Petitioner. ay agree- ment of the parties, the pleadings were amended to reflect Kyle Brothers Land Company, Inc. as the party ?etitioner. EXHIBIT A ...-..-.... . -, reasonable assurance pursuant to Rules 17-4.07 and 17-4.28, Florida Administrative Code, that long-term L~pacts of the project would not result in violations of State Water Quality Standards for all surface waters and for Class III surface waters...", those standards being biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients; (b)"...the project (would) result in the following matter adverse to the public interest: [i]nterference with the conservation of fish, marine and wildlife", and_ (c) ". ... the applicant_ (had) not provided an affirmative showing of the public interest which will be served by the proposed dredging." Petitioner disputed the allegations set forth in the Intent to Deny and requested a formal hearing pursuant to Sub- section 120.57(1), Florida Statutes. The matter was transferred by Respondent to the Division of Administrative Hearings on April 28, 1981, wi.th a request that a Hearing Officer be assigned to conduct a hearing. By Noti.ce of Hearing dated June 13, 1981, the t final hearing was scheduled to commence on August 4, 1981, in Key West, Florida. At the reques.t of the parties, the final hearing was rescheduled to begin on August 10 and then finally to October 5, 1981, at the same location. - At the final hearing Petitioner presented the tes~imony of George W. Kyle, Paul C.. Kenson, Jr., Dr. John D. Wang, Donna D. Rich, Dr. Eugene F. Corcoran, Dr. Earl Robert Rich and John Myers and offered Petitioner's Exhibits 1-11. All were received into evidence except Exhibits 3 and 11 which were conditionally received subject to further review by the undersigned. Also testifying in support of the application were Chester Closson, Dan G. Wood, Guy E. Morton, ~ex Hopkins and Kenneth D. Johnson, all residents of the subdivision where the project is located. Respondent presented the testimony of Rich~d A. Lotspeich, George T. Baragona, Dr. Landon Ross and Pamela A. Sperling, and offe~ed ( 2 ) ~espondent's ~~~~ibits 1-5, each of which was received into 9vidence. The transcri?t of hearing (two volumes) was filed on November 5, 1981. Proposed findings of fact and conclusions of law were filed by the parties on December 7, 1981. Not~ces of supplemental authority were filed by Respondent and Petitioner on December 10 and 23~' 1931, respectively., Proposed findings of fact have been considered by the undersigned in the preparation of t.."iis order. Findings of fact not included.. in this order were considered immaterial, not relevant to the issues, or were not supported by competent and substantial evidence. The parties have agreed to waive the requirement that a recommended order be entered within thirty days after the filing of the transcript of hearing. The issue herein is whether Petitioner is entitled to the issuance of the requested permit/water quality certification to excavate four dead-end canals and to complete excavation of two partially constructed dead-end canals in Big Pine Key, Monroe County, Florida. Based upon all of t..~e evidence, the following findings of fact are determined: ~ FINDINGS OF'FACT 1. Petitioner, Kyle Bro~~ers Land Company, Inc., is a land development and sales firm with principal offices located in Coral Gables, Florida. 2. On November 12, 1980, Petitioner filed an application seeking the issuance of a permit/water quality certification by Respondent, Department of Environmental Regulation, to authorize the excavation of four canals 525' long x 25' wide each with sixteen 10' x 35' boat moorings and to complete excavation on three partially completed canals, all lying in Sections 4 and 3/ Township 66,<), Range 29E, Big Pine Key / t-1onroe County, Florida. 2/ A copy of the ?ermit application may be found as Petitioner's Exhibit 2. ~/ -Although the application sought to complete excavation on three partially completed canals, subsequent ?leadings and testimony refer to only two and. the latter number has been used by the undersigned. --- ( 3 ) ., - ,. 3. Petitioner's application was received by the O~partment on November 25, 1980, and reviewed for compliance with applicable state water quality standards, conservation criteria in Chapters 253 and 403, and rules promulgated thereunder. Additional information requested by Respondent was furnished by Petitioner in early 1981. A field appraisal of the project site was submitted by the Department staff on March 16, 1981. On April 8, 1981, the Department issued its Intent to Deny the requested permit. A copy of the Intent to Deny may be found as Petitioner's Exhibit 6. The Department based its int3ntion to deny the permit on the grounds (a) applicant had not provided reasonable assurance that long-term impacts of the proje~t would not result in violation of State Water Quality Standards for. all surface waters and for Class III surface waters, and specifically including the fallowing standards: biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients, (b) applicant had not affirmatively shown the project would not interfere with the conservation of marine resources, and (c) applicant had :lot provided an affi~ative , showing of the public interest which would be served oy the pro- . posed dredging. Peti~ioner disputed the allegations set forth in the Intent to Deny and requested a formal hearing to contest the denial of its application. That request precipitated the instant hearing. 4. The proposed project is located within Port Pine Heights, a subdivision located on the northern end of Sig Pine Key which lies approximately 25 miles east-northeast from the City of Key West. More than seven hundred lots have been sold within the'subdivision since 1959 although only forty homes have been built to date. Of ~~at total, approximately fifteen homes are located in the southern half of the subd~vision where 'the proposed project is found. Two main canal systems have been con- structed in ~~e subdivision, each having an east-west channel ( 4 ) that opens directly to Pine Key C~annel to the west, and a number of closed-end fi~ger canals extending to ~~e north and south. The ~~o east-west channels and ~~e finger canals are artifically created bodies of water. The specific project site involves the southern canal system which is approximately six thousand feet long and fifty feet wide. It has fourteen finger canals extending from its northern side, including those to be unplugged and excavated, and twelve to the south. The finger canals are 525 feet long by 25 feet wide. The canals to be dredged lie on the landward end of the east-west channel and were constructed by blasting around 1960. A cease and desist order issued by the Onited States Army Corps of Engineers in 1973 halted completion of the canals at issue and they have' remained either plugged or unexcavated since that time. 5. Petitioner" wishes to undertake the proposed work so that it may complete the subdivision begun in 1959. Opon completion, the six canals will have ninety-six waterfront single-family residen~ial homesites of which twenty have already been sold. Because m~ny homesites have more than one lot, a saturation of the 'area with homes is unlikely. Additionally, the construction of homes within the subdivision has been extremely slow (only forty homes built in twenty years) and no substantial increase in that pace is expected even after the project is completed. 6. Onder applicant's proposal the excavated canals will have deptmof -4 feet mean low water (MLW) at the dead end in- creasing to -6 feet HLW at the connection of the eXisting fifty foot main canal, or an average depth of five feet. The existing , canals are all deeoer than the proposed canals. The excavation . will be done in native oolite lirnerock and the spoil from the canal system will be used to grade the adjacent upland and form a rip-rap'shoreline above the rock level. The entire area will be enclosed by turbidity screens until all wcrk is completed. (5 ) 7. The substrate at the location is Miami oolite, a type of l~estone which is characterized by the presence of fissures and hollows. Even though some groundwater-to-canal water interchange will occur, stormwater runoff has had no deleterious effects on other areas of the canal system since re~idential development began in the subdivision some years ago. Additionally, oolite rock is typically filled with crevices and dead-ends which hold water or leachate and can aid- in minimizing the groundwater-to-canal water interchange. S. A modi.fied tidal flushing analysis was performed by Dr. John D. Wang, Jr. on behalf of Petitioner in July, 1981. 11 The analysis investigated the mixing and circulation (flushing) of tidal water in the existing canal system and determined the quantity of water exchange between Pine Channel and the existi~g canal system. After the project is completed, the overall flushing characteristics and concom~tant water quality in the proposed system will. be significantly improved. These improved charac- teristics are primarily due to the new canals having a favorable ratio of !~W volume to tidal prism.!/ -As such, there will be higher tidal velocities and more favorable mixing between ~~e canals and the ocean. This is particularly true for those canals that lie closest to Big Pine Channel. "Because the overall flushing tL~e will be reduced on almost all of the system, its ability to purge itself of unwanted constituents 'Nill also improve. The Depart~ent'S concern that boat slips to be cut into the sides of the new canals will cause dead areas of water is not valid. The moorings will not affect flushing because the proposed canals lIFlushing ~ay be described as a relative ~easure of ~~e abi~ity of a system to purge itself of a given constituent. i/In si~plest terms, tidal prism is the amount 0= water that enters and exi ts on everv tidal cvcle. ~ Because ne~," canals will be opened in the oresent.system, the amount of water, or tidal prism, will necessarily increase, ( 6 ) are suf=iciently shallcw to insure good mixing. 9. Water quality tests within the existing canal system were made by Petitioner in 1980 and 1981 and by Respondent in 1981. The results of applicant's 1981 testing may be found as Petitioner's Exhibit 5, and include samplings of dissolved oxygen, temperature, oils and greases, detergents, total and fecal coliforms, bio-chemical demand (BOD), and nutrients. Respondent's testing included only dissolved oxygen and has been received as Respondent's Exhibit 5. A. Water quality sampling reflected only one total coliform and no fecal coliforms in the most-developed canal in the southern canal system. Readings {n the older area of the subdivision adjacent to a septic tank disclosed an extremely low bacteria count. Given the rate of growth over the past twenty years, and the almost non-existent presence of bacteria, the proposed canals should not cause a violation of the bacteriologi- cal criterion. B. Measurements of dissolved oxygen (DO) in the existing canal system and off-shore ambient waters were taken by ~ both petitioner and Respondent. Dissolved oxygen is the amount of o~lgen in the water, usually measured in a liter of sea water, and is needed for respiration of animals and organisms in. the water. Bio-chemical demand (BOD) was also measured in the existing - canal system. This measures the amount of oxygen demanded by organics or organisms in the water to convert oxygen to dioxide and water. High BOD levels indicate high amounts of organic debris in the water. High BOD and a lack of dissolved o~Jgen would cause an anaerobic environment which would probably produce hydrogen sulfide. State water quality standards require that the con- centration of dissolved oxygen "shall never be less than 4 milligrams per liter" in predominately marine waters. Rule 17-3. 121(14), Florida Administrative Code. Measurements in the open ( 7) cana~ system taken by Petitioner in August, 1980, and by Respondent in September, 1981, reflected readings of less than 4 milligrams per liter during the early morning hours. However, such readings are not unusual in natural settings such as Big Pine Key following a long period without light or photosynthesis. The values did not fall below ~~e minimum standards in the canal system on samples taken after 10:00 a.m. Measurements taken in the ambient waters adjacent to the canal system reflected lower readings than those in the canal system. These values also increa~ed during the later hours of the day. Increased flushing in the proposed system and shallower depths will increase oxygen throughout the canals. Therefore, its construction cannqt be expected, to cause DO levels to drop below the present levels found in the canals and ambient waters. Indeed, the shallower canals will be strong producers of oxygen with a high degree of photosynthetic activity and will contribute oxygen to the rest of the canal system. With the exception of one BOD reading of 1.02, all l were less than one unit, and may be characterized as ex~remely low. These levels will not be increased as a result of the proposed activity to the extent that dissolved oxygan will be depressed below 4 milligrams per liter. c. Oil and, grease concentrations may not exceed 5 milligrams per liter under state standards. Readings taken by petitioner in the canals and ambient waters were less than 0.01 milligrams at every station. Automobiles and boat traffic are generally the ?rL~ary source of oils and greases. The Depart- ment's concern that subsequent development within the subdivision will substantially increase the input of oils and greases into the waters is speculative at best, particularly in view of the low rate of growth in the subdivision over the past twenty years, the extremely low =eadings in already developed areas, the fact ( ? ) that present concentrations would have to be multiplied 5,000 t~mes to approach proscribed levels, and the back-sloping of lots by Petitioner to ~ini~ize stormwater runoff into the canals. D. Detergents are barelj measureable in the ~xistL~g canal system and ambient waters. In order to exceed state standards, the present levels would have to be increased at least 500 times. Although the Department expects detergents to be added to the waters through stor.mwater runoff and septic tank leachate, this assertion is inconsistent with present readings taken at stations, near homes with septic tanks. E. In the' context of this proceeding, nutrients may be defined as fertilizers or food for marine plants. An excess of nutrients in sea water can increase the level of bio-chemical demand which in turn decreases rlissalved oxygen thereby causing eutrophication of the canal system. ~ nutrient levels of the present system are low, This was evidenced by Petitioner's measurements of ammonium, nitrates, inorganic phosphate and silicate. The low readings were present even in the older', more- developed areas of the canal system. Respondent fears that ~ development would .hasten eutrophication in the canal system because bacteria and nutrients would be introduced through septic tanks and sto~ater runoff. However, storrnwater and septic tank leachate have had no adverse effects on the main canal system which has been in use since 1967. Indeed, continual monitoring of ~~e system by Petitioner since 1974 reveals that the system is a thriving biological community in which nutrients are being utilized by animals at the rate the system produced them. No violation of applicable state standards is expected after the project is completed. 10. The present canal system has a rich and diverse natural population of flora and fauna. However, all areas are not uniform in their attributes or communities. The water within (9) t..'1e system is clear.. The biological communi ties are more extens i ve and diverse wit.'1in the existing canal system than offshore. Because the new canals will not exceed six feet in depth, they can be expected to develop quite extensive communities of plant life on their bottoms. Colonization of algae on the sides of the canals should occur within a few weeks after the canals are opened. The optimum level of diversity of plants and animals should be reached ~.,ithin four years. The amount of photosynthetic activity on the walls and bottom of the new system due to its shallow depth will contribute oxygen to the other canals wi thin the system. The new canals will make a significant contribution to the total marine ecosystem. 11. The method of sewage disposal utilized by homes that have been built at the subdivision is septic tanks. Septic tanks would likely be used by any new homes built in the area in the immediate future. Petitioner is willing to construct a central sewage treat:nent plant whenever development is sufficient to make a plant economically feasible. In Petitioner's judgment, t at least thirty homes on or around the new canal system must ~e built before it is willing to undertake such a project. The use of septic tanks by the forty homes now built in the subdivision has not caused violations of any bacterio- logical quality standards to date. Moreover, testing of those same standards in another canal system on Big Pine Key by Respondent disclosed that septic tank leachate had not contravened those standards. (Respondent's Exhibit 1). The addition of thirty more homes in the subdivision over an extended period of time should not increase the amount of contaminants to a level that violates state water quality standards. 12. Petitioner commenced development of its subdivision at Port Pine Heights in 1959. The southern portion of the sub- division in which the proposed canal syste~ is located was first platted in 1963. Five lots on the unfinished canals have been sold prior to April 3, 1970. Completion of the canals was a (10) condition of the contracts for deed to those lots. ?etitioner has unsuccessfully sought to obtain the necessary permits to complete ~~e canal project in issue in 1974 and 1976. . CONCLOSIONS OF LAW 1. The Division of Administrative Hearings has juris- diction of the subj~ct matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. 2. The following procedural matters remain pending and require resolution before addressing the merits of the case. A. Chapter 253 Jurisdiction At issue is whether the proposed activity is within a navigable waterway and subject to the provisions of Subsection 253.123(1), Florida Statutes, and Rule 17-4.29(6), Florida Administrative Code. This issue matured when Petitioner filed a pleading styled "Motion for an Order that Respondent has no Jurisdiction Pursuant to Chapter 253 over the Proposed Project". By agreement of the parties, a ruling on the Motion was reserved until the entry of the Recommended Order, and the parties have conducted their evidentiary presentations as if the project was t subject to DER's Chapter 253 jurisdiction. Petitioner generally points out that its proposed act~vity involves the connection of six artificially-created in- land canals to another artificially-created inland canal, which in turn is connected to Big Pine Channel, a navigable water. Because all excavation activity will occur in artificial water, and Subsection 253.123(1), Florida Statutes, specifically excepts dredging activities in artificial waters from the Department's jurisdiction, it contends the project is exempt from DER's Chapter 253 jurisdiction. The Department asserts that the project is not entitled to the statutcry exemption unless each of the following conditions are met: (1) the water bodies are artificially-created, (2) they are entirely upland, (3) they are entirely owned by one person, and' (4) all work is to be conducted within the artifically- created water bodies. Respondent also relies upon Rule 17-4.29(1) (b), Florida Administrative Code, which provides in part that (il) "...dredging to connect artificial waterways or waterbodies to navigabla waters...N is subject to permitting requirements. Respondent contends ~~e project meets this criterion and therefore the canal construction falls within the ambit of the rule. Subsection 253.123(1), Florida Statutes, provides as follows: (1) No private person, fi~ or corporation shall construct islands or add to or extend existing lands or islands bordering on or being in the navigable waters of the state as defined in s. 253.12(1) by pumping sand, rock or earth from such waters or by any other means without first complying with s. 253.122; provided, nothing herein contained shall relate to artificiallY created naviqable waters. (Emphasis supplied) Accordingly, DER dredge and f~ jurisdiction under Chapter 253 is limited to the cant:ro~ :o'f -.cer:t.a:i:n.,a.d:.i vi ties in navigable waters. An appl i,.'t'!R"nt.:subjaec t...:; ~~i:~.i ~:;-',,;3.'is.:ions of Section 253.U3 must meet those ~~~_'Ea.L'.;.ci. In '-;'4~y~ecti:on 253.123 (2) (C.) , Florida Statutes, and~diZied -in Rule l7-4.29 (6) , Florida Administrative Code. In summary form, they require that an applicant affirmatively demonstrate that (a) the proposed activity r will not interfere with the conservation of fish, marine and wild- life, or other natural resources to 'such an extent as to be contrary to the public interest, (b) the proposed activity will not result in the destruction of oyster beds, clam beds, or marine productivity, and (c) the proposed activity will not create a navigational hazard, or a ser~ous impedL~ent to navigation, or. substantially alter or LT!\pede the natural flow of- the navigable waters, so as to be contrary to the public interest. If Petitioner-I s claim is meritorious, it need not prove that the deleterious effects described above will not occur. There is very little case law interpreting the term "artificially created navigable waters" withi.n the. context of Departlnent jurisdiction. Ho'vever, both parties have relied upon State Depar~-nent of Environmental Regulatiorl v. Oyster Bav Estates, ~, ~u4 So.2d 891 (Fla. 1St: DCA 19~u) and Trustees of Internal Imorovement Fund v. Sea-Air Estates, Inc., 32i So.2d 823 (Fla. . (12) 3rd DCA 1976) ~o suppor~ ~~eir respective posi=icns, and these two cases appear to be ehe only pertinent decisional law on the - I subj ect. ~ In Oyster Bay, the appellees-developers had received a permit in 1969 from the Trustees of the Internal Improvement Fund (Trustees) to consuruct a navigation channel in Apalachee Bay adjacent to appellees' upland property. Appellees also intended to construct two interior canals connecting with another canal that extended into the navigation channel. As a result of legislation enacted subsequent to 1969, and over appellees' objection, the Trustees required appellees to obtain additional permits to complete the project. While most of the litigated issues in the decision are immaterial to the issue at hand, the appellees did contend that "the Trustees' issuance of the permit with knowledge of the proposed inland canal construction constituted approval not only of the navigation channel to be dredged in Apalachee Bay, but also the inland canals to be constructed on appellees' upland property." In rejecting this argument, the Court described the nature of the Department's jurisdiction over ~~e inland canals" as follows: Chapter 253...contained no requirements oertainina to inland canals, and the Trustees had no au~horitv to either aoorove or disapprove such canals. The- trustees authori~y was limited, by law, to control over dredging and filling in navigable waters. Under the apolicable statutes...no further permits were required for completion of navigationai access to the interior canals to be located on appellees' property, and no state perm~ts were needed for construction of the interior canals. We therefore find no basis upon which it can be concluded that action by the Board in approving the navigational channel (a matter within its jurisdiction), conferred rights upon appellees with respect to construction of inland canals upon appellees' upland property (over which the Board had no jurisdiction). Id. ~t 392-393 (Emphasis supplied) The Depar~~ent asserts that the canals at issue in Ovster Bav were entirely upland, and ~ot connected to any navigable body YThe parties agree, as does the undersigned, that a third appellate decision on the subject, Jefferson National Bank v. Metrooolitan Dade Count", 271. So.2d 207 (Fla. '3rd DCA 1972) is not on point and has no application to the factual situation herein. (13) of water. Thus, because they are unlike the canal structure in ~ne case at bar, it argues the decision cannot support the Petitioner's cla~. A reading of Oyster Bav reveals that the actua~ configuration of the canal system therein is somewhat sketchy. Indeed, the court itself acknowledged that II [m]any of the maps and plats in the file (were) almost illegible." (page 892, fn. 2). However, it is clear that appellees were attempting to connect "two 40-foot interior canals" to "a 60-foot canal extending into the navigation channel." (page 892) The latter body of water (the navigation channel) was. a navigable water within the meaning of Chapter 253. When the Court stated that "[n]o fur~~er permits were required for completion of nav.igationa~ access to the interior canals to be located upon appellees' property", (page 8~3) it was obviously referring to excavation work on the 60-foot canal on which a permit had presumably already been obtained. The Court went on to hold that excavation work,. on the two 40-foot canals was exempt from permitti~g requirements since "the Board had no jurisdiction" on ,\ppellees' upland property. Accordingly, even though the two 40-foot canals were to be connected to another waterbody (the 60-foot canal) providing access to the navigation channel in Apalachee Bay, the construction work on the inland canals was nevertheless exempt from DER's Chapter .253 jurisdiction. This is true even though Rule 17-4.29 (1) (b), supra, provides. t.."at DER shall have jurisdiction over "dredging to connect artificial watertlays or waterbodies to navigable waters".i/ In the case at bar, Petitioner intends to pull the plugs on two existing dead-end canals, excavate four other dead-end canals and connect the same to an existing upland canal system on its property. The latter canal then connects with Pine Island Channel, a waterbody that both ?arties agree is a i/ The Court's result is not incon~istent wich the Depar~~ent's Rule for it concluced ~~at dredging on the 60-foot canal providing access from the inland canals to the navigable channel in Apalachee Bay was subject to DER permitting require- ments. In cont=ast, however, there will be no excavation work on the access waterway becween Petitioner's dead-end canals and Big Pine Channel. (14 ) navigable ~vater. The canal structures in both Ovster Sav and the ..... ... i~stant case appear to be identical, at least in terms of inland canals and their relationship to and connection with navigable waters. In both cases, the construction work is on inland canals connected to another waterway on private property which in turn ~ connects to a navigable body of water. This being so, the Ovster ~ decision supports the theory advocated by Petitioner, and is deemed to be controlling to the factual situation herein.71 Accordingly, it is concluded that (1) the excavation work in ~~e case at bar will. occur wholly within artifically-created navigable waters, (2) under the principle enunciated in Oyster Bav, the Department has no jurisdiction over the construction of inland canals (artificial waters) on Petitioner's upland property, even though they are connected to an access canal which runs into a navigable water, and (3 f the prcject :is ~empt from Chapter 253 permitting requirements pursuant to the exception contained in Subsection 253.123(1), supra. In making this determination, it must be remembered tnat Petitioner is not relieved of all obligations to confo~ with environmental standards. Rather, it must still comport with the dredge and fill permitting requirements of Chapter 403, Florida Statutes, and applicable rules promulgated thereunder. Thus, the conclusion that Chapter 253 is not applicable under the factual circumstances herein merely exempts Petitioner from a small part of the many standards and regulations contained in the, Department's regulatory arsenal to insure that the environ- ment is protected. Although both parties have relied upon the Sea-Air decision to support their respective positions, the ~ndersign~d concludes it is not dispositive of the issue at hand. In Sea-Air 21 In reaching this conclusion, the undersigned has not ignored the request of Respondent's counsel that the precedential value of prior DER decisiombe considered. However, research by the undersigned has failed to disclose any DER final orders that are controlling, or indeed even pertinent to the issue at hand, and counsel furnished no citations on this point. (15 ) appellee-landowners had pulled ~~e plugs on two artificially- created canals which lay on appellees' upland property and above the high water mark. The Trustees sought a mandatory injunction to compel appellees to replace fill material which they contended had been illegally excavated. In rejecting the Trustees claL~ for relief, the Court sustained the trial court's finding that the water-bodies involved were artificially created navigable waters within the meaning of Subsection 253.123(1), and were accordingly beyond the Trustees' regulatory jurisdiction. The. decision does not reveal whether' the artificially created navigable waters at issue were, or in what manner, connected to navigable waters. While it logical to assume that they were, for othe~~ise there would have been no purpose in the construction work, this essential factor was not disclosed and it is concluded the case neither favors or contradicts the respective positions of the parties. B. The Outstanding Florida Water Issue Respondent has contended the proposed activity is located within an Outstanding Florida Water (O~~), and therefore is subject .' to additional requirements on the part of applicant. (See Rule 17-4.242, Florida Administrative ~). Specifically, it is alleged that the project is located within National Key Deer and. Great Nhite Heron in Monroe County, both of which are defi~ed to be Outstanding Florida Waters in Rule 17-3.041(4) (a), Florida Administrative Code. The issue first arose over Petitioner's objection when the parties prepared and executed a prehearing stipulation filed with the undersigned on September 21, 1981. The undersigned then ruled the OFH issue had not beel1 timely raised. Further explanation as to that ruling is deemed appropriate. A chronological recitation of the sequence of events which has occurred is necessary in order to place the matter in . proper perspective. The application herein was dated November 12, 1980. On April 8, 1981, the Depar~~ent issued its Intent to (16) Deny which ar~icula~ed its reasons for denying the application.if Some five and one-half months later, and two weeks prior to the final hearing, the Depar~~ent raised the O~~ issue for the first t~~e as a further basis for rejecting the application. It is well-established that the constitutional guaran- tee of due process,of law applies in administrative proceedings. Persons who appear before administrative agencies must be accorded procedural due process. This includes the right of a party to receive a timely notice advising him with reasonable certainty of ~~e matters which he must defend, or objections he must overcome in resolving his dispute or claim with the agency. Here the agency identified with particularity its objections to granting the requested permit in April, 1981, after having reviewed the application for almost five months. Petitioner understandably relied upon that repres~ntation in ~ ~aith in preparing its case to counter and meet those objections. Some five months later, the Department belated~y and unexpectedly sought to add yet another objection to the granting of the permit. It did so without giving timely notice or seeking authority to amend its pleading, and wit~out the consent of the opposing party. Cf. Rule 28-5.202, Florida Administrative Code. Moreover, Petitioner was not alerted to the OFW issue by other pleadings and documents previously filed in this cause. Hovnanian Fla., Inc. v. Division of Florida Land Sales, 401 So.2d 851, ass (Fla. 1st DCA 1981). If the issues were expanded as Respondent sought to do, Petitioner would have been required to stand a more stringent test in sup- porting its claim. See Rule 17-4.242, suora. t~en substantive !/ These reasons included: (1) a failure by applicant to provide reasonable assurance, pursuant to Rules 17-4.07 and li-4.23, Florida Administrative Code, that long-term impacts of the ~roject would not resulc in violations of certain State Water Quality Standards for all surface waters and for Class III surface waters, (2) that the project would interfere with the conservation or fi3h, marine and wildlife, and (3) that the applicant had not provided an affirmative showing or the public interest to be served by the proposed dredging. (Petitioner'sExhibit 6). (17) ,. ~ ~ - -. --.'--'- -- --- - --- changes in tlle Depart..'nent I s objections to granting the per:ni t are made in mid-proceeding, it ".. .may well consti.tute a due process problem of notic~ to the (applicant)." Hoowood v. . Decartment of Environmental Requlation, 402 So.2d 1296, 1299 - (Fla. 1st DCA 1981). Admittedly, a postponement of the hearing could have been ordered, but the Petitioner is entitled to have its application heard and considered "with reasonable dispatch and with regard to (its) rights and privileges." Subsection 120.60(2), Florida Statutes. In an administrative context, due process requires that Petitioner be given reasonable opportunity to know the claLms of Respondent and to meet them--here due process was lacking and the attempt to ~ge the grounds for ~enying the permit was proper~Ydeni~1/ C. 'In:te.~t.i:I:m'fu:~r;:j;:-~__..._;.ue aaJ...ghts PIoperty AsSDci.ation. D:u::rinq'-:~zz~-.".d:;:,:~-f.~c....'te~..:nq intervention was sought by the Port Pine ~~nxs;~~perty Association, an organi- zation made up of many of the homeowners within the subdi',ision where the proposed a~~ivity will take p~fce. The Association supports the position of applicant. Respondent objected to granting intervention, and a ruling on its right to intervene was reserved pending further argument by the parties. After' further review, it is concluded that it should not be afforded party status, and its request to intervene denied. Rule 28-5.,207, Florida Administrative Code, governs intervention in Section 120.57(1) proceedings and it provides as follows: Persons other than ~~e original parties to a pending proceeding who have a substantial interest in the proceeding, and who desire to become parties may petition the presiding afficer for leave to intervene. Petitions for leave to intervene must be filed at least five (5) days i/This is not to suggest that the Department cannot amend its proposed agency action (letter of intent to deny) once this preliminary step is taken for the 120.57(1) hearing is a de novo proceeding to formulate agency action. Depar~'nent of Trans?ortation v. J.W.C. Comoanv, Inc., 396 So.2d 778 (Fla. 1st Ded 1981). Whenever such moditication is sought on a timely basis and with adequate notice to the other parties, it should be permitted. However, in the proceeding at bar this was not the case. -Hoowood, suo=a. (18) before the final hearing, and should be in con- formance with 23-5.201(2) and shall also include allegations suf:icient to demonstrate that the intervenor is entitled to participate in the proceeding as a matter of constitutional or statutory right or pursuant to agency, rule, or that the substantial interests of the intervenor are subject to determination or will be affected through the proceeding. . , Here the Association did not file for leave to intervene in accordance with the time limitations prescribed by the Rule.101 Further, the Association failed to show that its environmental interests were substantially affected by the agency question. 111 Agrico Chemical ComDany v. Department of Environmental Regulation, (Fla. 1st DCA 1981 Ope filed 10/7/81). This being So.2d so, its request to intervene should be denied. Despite the denial of its request to intervene, the individual members who testified are entitled to be heard. Therefore, the testimony of the five property owners who appeared has been considered in this context, and appropriate weight accorded thereto. See Subsection 120.57(1) (b) 4, Florida Statutes. 3. The Oep4rtment has j'~isdiction of the project herein pursuant to Subsection 403.087(1), Florida Statutes, which provides as follows: (1) No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or.modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. Because a canal is a stationary installation which may reasonably be expected to be a source of water pollution, the proposed construction is subject to the provisions of the foregoing statute. lQ/The Association sought to intervene on the second day of the final hearing although ?resumably it had knowledge of the hearing for some time in advance. lllThe testimony offered by representatives of the Association revealed it was not primarily concerned with the environmental effects of the activity but rather with the economic impact of the project on the subdivision. Its two principal reasons for supporting the application were (1) the expectation that further development in the area would occur after the project was completed, and (2) the elimination of an "eye-sore" in the area that now exists. Neither reason can be characterized as an environmental interest or consideration within the meaning of those terms. (19) 4. Applicants for dredge and fill permits must 11 affirmatively provide reasonable assurance to the depart."nent that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code." Rule 17-4.28 (3), Florida Administrative Code. 5. The allocation of burden of proof in a dredge and fill permit proceeding has been enunciated by the First District Court of Appeals in Florida Department of Transoortation v. J. t.T. C'. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). .Once the applicant has' established a prima facie showing of entitlement to the requested permit, the Court held: The "burden of proof" is upon the (Department) to go forward w~th evidence to prove the truth of the facts asserted in (its) petition. If the (Department) fails to prevent evidence, or fails to carry the burden of proof as to the controverted facts asserted--assuming that the applicant's prelLminary showing before the hearing officer warrants a finding of "reasonable assurances"--then the pernri..t must be approved. Id. at 789. 6. The underlying basis for the Department's objections t centers around the long-term effects of future development after the project is completed. The Department fears that a saturation of homes in the new canal area will occur, and cause the intro- duction of contaminants into the canal system which will result in violations of the water quality standards. These concerns are speculative at best since housing construction to date has averaged only two homes per year over the last twenty, and ~~e existing development has not affected the water quality to any degree. Respondent also contends that once development occurs, septic ta~~s will be installed at each homesite and constit~te a source of pollution. However, septic tank permitting is a function of the Department of Health and Rehabilitative Services under Chapter 381, Florida Statutes, and Chapter kOD-6, Florida Administrative Code, and as such, is not subject to the Depart."nent's permitting authority. Moreover, the stationary objects ~~at give rise to the Department's Chapter 403 jurisdiction are the six (20) canals to be unplugged and excava~ed; thus, the canals vis a vis septic tanks are the expected source of water pollution . within the meaning of Subsection 403.087(1), suora. Even if the prospective septic tank installation can be properly ~ considered, water quality sampling near septic tanks in the existing canal ~ystem and on other areas of Big Pine Key do not corroborate Respondent's fears. The remaining principal objection relates to low dis- solved oxyge~ readings found in the existing canal system and ambient off-shore waters during the early morning hours. Admittedly, these measurements fell short of min~um state standards contained in Rule 17-3..12~(1.4), Florida Administrative Code. HO't-lever, these low rearl ;-ngs..e:re "the result of a productive biological community and were ':m:tt.:~.,"e6. ~ -pollution from the canals. ~oreover, they improved to satisxactory levels during the later hours of the day. The evidence reveals that once the new canals are opened, improved flushing will occur thereby leading to an overall improvement in water quality. 7. Petitioner having affirmatively provided reasonable assurance that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code, and Respondent having failed to controvert this showing, the requested permit should be approved. J.W.C. Co" Inc., supra. 8. Because Petitioner is entitled to a dredge and fill permit under the more stringent test now used in eva~uating this type of application, its request for special consideration under Rule 17-4.28(7) I Florida Administrative Code, is rendered moot. Accordingly, Respondent's ~otion for Partial Summary Judgment is denied and Petitioner's Exhibit 3 and 10 are hereby received into evidence. (21 ) 9. Also remaining at issue is Petitioner's renewed Motion to Award Attorney's Fees. A similar Motion was denied by order dated August 7, 1981. Having considered the same, ~~e prior ruling denying the Motion is reaffi~ed and the Motion is hereby denied. RECOMMENDATION Based on the foregoing findings of fact and conclusions of 'law , it is RECOMMENDED that the application of Kyle 3rothers Land Company, Inc~ for a permit/water quality certification to excavate four dead end canals and to complete excavation of ~'lO partially- constructed dead end canals on Petitioner's subdivision in Bi~ Pine Key, Monroe County, Florida, be GRAl~TED. DONE and El-lTERED this ~ day of January, 1982, in Tallahassee, Florida. 'r Hearings Copies furnished: Filed with the Clerk of the Division of A~~n~strative Hearings this~ day of January, 1982.---- ~ichael E. Egan, Esq. Jane Heerema, Esquire P. O. Box 1386 Tallahassee, Florida 32302 Paul R. Ezatoff, Jr., Esq. 2600 Blair Stone Road Tallahassee, Florida 32301 Jerome V. Shipley, Esq. Route 1, Box 527-A Big Pine Key, Florida 33043 l (2 ;>"\ ." .1 BEFORE THE STATE OF FLORIDA DEPARTHENT OF ENVIRONMENTAL REGULATION fP) ~17<l~ LW~ \.~<sllW4}W MAR 12 ~ 19~ MAFCATHON , FLORIDA Joj1-,,\,'\&J KYLE BROTHERS LAND COMPANY INC. , t Petitioner, v. DOAH Case No. 81-1240 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, OGe Case No. 81-0290 ) Respondent. FINAL ORDER On January 20, 1982, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1), F~orida Statutes, hearing in the above-styled cause submitted his Recommended Order to the Department of Environmental Regu- lation ("Department"). A copy of the Recommended Oreer is attached as Exhibit A. Pursuant to Section 120.57(1) {b)8., Florida Statutes, and Ylorida Administrative Code Rule 17-1:68(1), the parties were allowed ten days in which to submit written exceptions to the Recommended Order. Respondent moved for an extension of time to file exceptions and, by Order dated February 2, 1982, Respondent was granted an additional four days. Respondent then timely filed Exceptions to the Recommended Order and a request for oral argument pursuant to Florida Administrative Code Rule 17-1.68(3). Request for Oral Argument is denied, oral arg~ment being unnecessary to rule on the issues presented in their case. Petitioner filed a response to the Exceptions filed by Respcndent. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter. RULING ON EXCEPTIONS Exceptions to Findings of Fact 1. Respondent takes exception to the hearing officer's finding of fact that saturation of the Port Pine Height Subdivision with homes is unlikely and that no substantial increase over the present building pace is expected after the proposed canal exca- vation is completed. Respondent also requests that an aGditional finding of fact be made relating to dissolved oxygen. A review t of the record indicates that competent and substantial evidence e~i?ts to support the hearinq officer's findin9s in the matters and Respondent's exceptions must therefore be rejected. Exceptions to Conclusions of Law Chapter 253 Jurisdiction Respondent takes exception to the hearing officer's conclusion of law that the Depar~~ent lacks Chapter 253, Florida Statutes, jurisdiction over Petitioner's proposed project. Based on the specific and unique facts of this case as found by the hearing officer, I must reject Respondent's exception and I con- clude that no Chapter 253 ;urisdiction exists with respect to Petitioner's proposed dredging activities. The hearing officer's rationale is not enti~ely accurate, however, and it must therefore also be rejected. I reaffirm the Department's position that Chapter 253 jurisdiction exists f~r all dredging activities undertaken in navigable waters of the state, except where the waters are en- tirely artificially created and owned by the party undertaking the dr~dging activity. Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207 (Fla. 2d DCA 1972); Trustees of the Internal Improvement Trust Fund v. Sea-Air Estates, Inc., 327 So.2d 823 (Fla. 3d DCA 1976). The Department retains jurisdiction pur- suant to Chapter 253 over all filling activities in navigable waters regardless of the artificial nature of the waters or their ownership. Jefferson National Bank, Supra. The Outstanding Florida Water (OFW) Issue Respondent's exception to the hearing officer's ccnclusion that the OFW issue was not timely raised is well taken. Under the 2 circumstances of this case, the hearinq officer erred bv refusinq to address the OFW issue and thereby deprived me of the oppor- . tunity of having a complete record before me for the fornulation of final agency.action in this matter. Recognizing that Section ~ 120.57(1), Florida Statutes, proceedings are de ~ proceedings to formulate agency action,l amendment of pleadings should be liberally granted absent a clear showing of prejudice to a party. Althouqh the OFW issue should have been considered in this proceedinq, the resolution of that issue would not be dis- positive of the case, and therefore Respondent's request for a remand to the hearinq officer is reiected. Reasonable Assurance ~ The hearing officer in this case expressly found that reasonable assurance had "been given as to each water quality cri- terion which Respondent put at issue, and he expressly concluded that the short-term and long-term effects of Petitioner's activity will not result in violations of the water quality criteria of Florida Administrativ~ Code Chapter 17-3. Respondent argues that reasonable assurance cannot have been provided because levels of dissolved oxygen of less than 4 mg/l will be found in the proposed canals. The record is not. .clear on this point, however, and in view of the hearing officer's express findings concerning reasonable assurance and the possibility of water quality violations, Respondent's exception must be re- jected. I should note that the conclusion that reasonable assurance has been provided in this case is supported by Petitioner's express agreement to provide a central sewage treatment plant when thirty of the ninety-six lots fronting the proposed canals are developed, to provide necessary collection lines to the homes, and to condition 1 Deoartment of Transportation v. J.W.C, Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981) . 3 lot sales on purchase agreements to connect to the sewage treat- ment plant when it is operational. The hearing officer made a specific finding of fact regarding this agreement and Petitioner reaffirmed this agreement in its response to the Department's exceptions. Conside~ing these facts, I hold that Petitioner's satisfaction of the agreement was implicit in the hearing officer's conclusion that reasonable assurance had been provided. Respondent also asserts that the hearing officer erred in limiting the scope of his inquiry into the long-term effects of the proposed project. Given the express findings and conclu- sions relating to long-term impacts noted above, Respondent's exception must be rejected. However, in the interest of clarifying the hearing officer's conclusions of law, I must reiterate the Department's position with respect to some of the issues raised in Respondent's exceptions. The Department maintains that the evaluation of the long-term impacts of a proposed project must be based upon condi- tions assumed to exist: upon full development. Kyle Brothers Land Company, Inc. v. DER, DOAH Case No. 76-607 (Final Order entered January 20, 1977: Key Haven Associated Enterprises, Inc. v. DER, DOAH Case No. 76-946 (Final Order entered June 22, 1977); Sunset Acres Mobile Home Sales v. DER, DOAR Case No. 79-1247 (Final Order entered May 27, 1980). All impacts (both short and long term) w?ich are directly or incidentally associated with an instal- lation and which may result in pollution must be considered in determining whether reasonable assurance has been provided. Florida Administrative Code Rules 17-4.03, 17-4.07, and 17-4.28. CONCLUSION AND ORDER Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Respondent's Exceptions, 4 and Petitioner's Response to Respondent's Exceptions, it is therefore: ORDERED, 1. That the hearing officer's Findings of Fact are . adopted in toto. 2. That the hearing officer's Conclusions of Law are adopted to the extent that they are not inconsistent with the- Conclusions of Law of this Order. 3. That the hearing officer's Recommendation is adopted with the following conditions: (a) That Petitioner provide central sewaqe treatment to the ninety-six lots abuttinq the proposed canals when thirty of the ninety-six lots are developed with businesses or residences. sub;ect to Department permitting requirements; (b) That Petitioner install all necessary sewer lines to provide sewer service to the lots. subiect to Department per- mittinq requirements; and (c) That e~ch deed or aqreement for deed for the lots abutting the oroposed canals contain a restriction requiring con~ nection to a central sewaqe treatment plant when one becomes ol?erational. The Department will issue the permit within twenty days from the effective date of this Final Order. .-. DONE AND ENTERED this S - day of March, 1982, in Tallahassee, Florida. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION FILING AND ACKNOWLEDGEMENT FILED, on this date. pursuant ~o 5120.52 (9), Florida Statutes. with the designated Depart. ment Clerk. receipt of which is hereby acknow. vJ:~ J ~CHINt-L Secretary )fee. JJ- .j ~~~.~ Clerk j /1.5- It o:J. I f Date Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Telephone: (904) 488-9730 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to Michael E. Egan, Esquire and Jane Heerema, Esquire, Roberts, . Egan & Routa, P.A.; Post Office Box 1386, Tallahassee, Florida 32302, this f day of March, 1982. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ~~~~_- ;;/1. PAUL R. ZATOFF, JR. Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Telephone: (904) 488-9730 t s ... ,:"~ T t ['; ~ L J N ; D ,\ J [H::n,1\ RTMENT OF ENVIRONMENTAL REGl "ION TWI.; TOWE"S n~FICE UUILOINC. ~ooc SLAIFl ~TO'H Fl(JAD TALLAHASSEE FLOnlDA 32301 \......\~ . ~ '>7", ~ . '~1 ... - ~ .' ~ ' .; \' ~ t '.t, ~lku- ~ 9 ;.~fu( . -- r,~" Of n.dl~ RC B . ~.\ 1'1 (~('\. In'., VICT~qll\ ) TSC........., Sll-for 1.\1, Mar;::~ 1~., lEB2 Department of Environmer.1aj'~E'~~~ South Florida Branch Offire 3201 Golf Course Blvd Punta Gorda~ Florida 33950 " Attention: Rick Cantrell StellY r,'r;l!if ~j(),: 44-37258 Issue:rl I " ' - " George Ky1 e lnrlo2,ed i<: a copy of 1I1l' v,lJj',Lltf'L! i1('!"f:lit fr~' this proiect. ;;;;;;PJl4V;f. ~ ~A) ,Jeremy A, era ft f V-~. Section Administrator , Standard Per~itting Section ..... Enclosure Game and Fresh ~~ater Fish CC'n1nllssior. Florida Marine Patrol John Adamo:;. Corps of FnQ1T1(,prr, II... , ~ " - ..'!" .-...:....4.. - ....:...:~..r .~ ~ - . " ~;, ~ ...: .~. J ; ~A.~;~.t::'l:~~.R'ID ^. .11,:r~ .i\ ; ~ ~;~:~J!:~~:fi:...~y _~' L..~ ..-. . , ; i DEP~l:MENTi.OE- .~:i-- EN\{IRONMEN.TiAn:nx,EG,tlITAl110N 10:" C-ONSTRU'CTION- E_ERMIT NO.' 44-37258 - lOCATION: Big Pine Key, Port Pine Heights, man-made canal, Monroe County, Sections 4 & 5, Township 66 South, Range 29, East, not in an aquatic preserve, Class III WaterF.. :;) DATE OF ISSUANCE ~ I~I Ijg~ DATE: OF EXPIRATION. T ~ VICT~ TSCHINKEl, SECRETARY April 1, 1985 DEA FOAM PERM 11.2 ,'" TOWERS OFFICE BUILDING J BLAIR STONE ROAD .~HASSEE. FLORIDA 32301 DEPAR.TMENT OF ENVIRONMENTAL REGULATION /~ :!~~,,~'. '.. ~ ,.~l ... - ..~,~~' ~~.~ BOB GI'lAHAM GOVERNOR VICTORIA -J: rsCHlrQKEL SECRETARY CERTIFIED - RETURN RECEIPT 1mrril 19., 1982 George Kyle c/o Paul C. Kenson, Jr. & Associates, Inc. Post Office Box 92 Marathon, Florida 33050 Dear Sir: ~nclosed is ?e~.i~ Number 44-37258 -:= complete an existing .canal s~stem .; ssue~ ...,,,....-., "'-- ~o ~ec- - or.: 40 087 . _ ::' ~_ :::J .....~.... _.... ..." __.. . , dated 3/19/82 , F. S. Ch 1 e.- vo'- ob~~~. -0 M~;S ~e""m~. ';nciu~';n~ -rv "'"""c" a'~ o~ -~e ~or.:- _ QU _ "- ~__....... __...._ :" -. _~I ~.. _ {,.,;._ ~ c..__,.. ~.. ~_ _ _.. _ .. ci~ions ccr.~ained ~~erein, you may file an appropriate peti~ior. for a~~inistra~i7e ~eari~g. ~his peti~ion must be filed wi~~i~ fourteen (14) days of ~~e receipt of this letter. Further, ~~e pe~i~ion mus~ ccnfo~tc ~~e re~uirements of Sec~ion 28-5.201, Florida AdDinistrative Code, (see reverse side of this let~er). The petition must be filed with ~he Office of General Counsel, Depar~~ent of Enviro~~ental ~egula~ion, Twin Towers Office Building, 2600 Blair Stone ~oad, ~allahassee, Florida 32301. :f no :)e~i~icr. is filed wi~~in the orescribed time, vou will be ~o ~ave accep~ed t~is permit and walvec your rig~-: t; re~ues~ an a~~inis~ra~ive ~earing on this matter. ..., deemed Ac=e?~ance of the permit constitutes notice and agreeme:'1-: t~at the ~epar~ment ~ill periodically review this pe~it for compliance, ';~cludi:'1c si~e insoec~ions where aoolicable, and mav initia~e -- ~ --ome-~. ac-;c"""-~c~ vio'a-ion o&-.~e CC"""c."i-ions -an c." -o~",~o er:_c___. ..lo".. --... - - - - -- - '-..';'l ... ____ -.. --~w---!:4en~s therecf. .:.::=_=s:..:.=~ Sincerely, J}~~ t ~ ~ Jeremy A. Craft Section Administrator Standard Permitting Section JACjmlj , I'" ...' - f!r' "" ~ . . STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ~~ /!!I~ ~~\\ "~~'\,,:\ !,~ BOB G"AHAM GOVERNOR TWIN TOWERS OFFICE BUILOING 2600 BLAIR STONE ROAO TAL.L.AHASSEE. FI.ORIOA :32:301 VICTORIA J. TSCHINICEl. SECRETARY ~PPL1C,).NT: '9EMIT~~TIF~'i1CN litO. 44 - 372 SB George Kyle c/o Paul C. Kenson, Jr. & Associates, Inc. Post Office Box 92 Marathon, Florida 33050. COUNTY: Monroe PROJECT: Dredging 1"'1" '". ... ' , t -... -- - 4 0 3 -1 "d - d r-\. 1 7 - 3 a'J s :e, t I ISSllea '.m...er ~8 ::rCVISlons 0 I...,act!r . ~.or: a ::;)t3t!Jt!s. 3n "".acter H l:i f?' - If ~!or;Cla ,J.dministrative C-:loe. ine lccve nameCl aCOliC3nt. neremaner C3ileo ?!rmitt!~. :$ nel"!ov 3utnor'zea ~o ;:er.'orm ~:1. '/Vorl< :r ccerat!t ~l"le :acilitV thewn on me 3ccrcveo orawinglSi. plans. ::ioc.Jments. and i;&(;:f!cations 3t':3c:-:ed nerl!to ano mace a part nereof ano lcec:fic31I'/ cescribed as follows: To complete an eXisting canal system by: the excavation of 4 canals and the completion of two partially excavated canals. Each canal will be 525 ft. long by 35 ft. wide with sixteen 10 ft. by 35 ft. boat moorings. The canals will have a depth of -4 ft. MLW at the landward end and slope to -6 ft. MLW at the waterwar'd end. LOCATION: Big Pine Key, Port Pine Heights, man-made canal, Monroe Cou~ty, Sections 4 & 5, Township 66 South, Range 29 East, not ln an aquatic preserve,Class III Waters. ~ 1 ~:'Gc :F 4 PERM IT NO.: APPLICANT: 44-37258 George Kyl e GENERAL CONDITIONS: 1. The terms, cond itions, reQu irements. IjmitatiDJ:as._...."'L,~.UtM!"'.~"':elL' tJ'll h",ti!imae ~"Permit .conditions:. and as such are bind- ing upon the permittee and enforceable pUJ:SU.ant..m~mt 0f '3" ciC: "-1.:. ~51: lj;fFlonida Statutes. Pl!TTTIittee is nerebv placed on notice that the department will review -mis.I=....UL,a:~altv:'::;nd'n-~;i...;-i.Iltl~I~m:t:a.::tilJl'dDrj;my violati:on of-me "Permi't Con- di'tions" by the permittee, its agents, empioy.ees;.m.~~~'::r:':'''~" 2. This permit is valid only for -me specffic4.J~....tUt{j-.ttte~~ fndi:.:.iKJ~nn:I1eCl:tad!led rlTawings or exhibits. Any unautho- rized deviation from the approved drawings, exhibi:ts..~1iicatiels-;!Ifr"::t!aIlcittiltrn;~1:his.~nnit stlall constitute grounds for revoca- tion and enforcement action by the department. 3. If, for any reason. the permittee does not comply with or will be unable to comply with any condition or limitation specified in this permit, the permittee shall immediately notify and provide the department with the follOWing information: la) a description of ana cause of non-compliance; and (b) the period of non-compliance, including exact dates and times; or, if not corrected, the antici- pated time the non-compliance :s expected to continue. and steps oeing taken to reduce, eliminate. and prevent recurrence of the rlon- compliance. The permittee shall be responsible for any and all damages which may result and may be subject to enforcement ac:!on by the departmerlt for penalties or revocation of this permit. 4. As provided in subsP.Ction 403,087(6), Florida Statutes, the issuance of this permit does net C;jnvey any vested rights or any ex. elusive privileges. Nor does it author;ze any injury to public or private property or any invasIon of personal -ignts. nor any infrInge- ment of federal, sta.te or local laws or regulations. 5. This perm~t is required to be posted in a conspicuous location at the work site or source during the entire period of construc:ion or operation. 6. I., accePting this permit. the permittee understands and agrees that all records, notes, monitoring data and other information re- lating to the construction or operation of this permitted source, which are submitted to the department, may be used by the deoart- ment as evide:1ce in any enforcemem case arising under the Florida Statutes or department rules, except where such use is proscribed by Section 403.11 1, F .5. 7. In the case of an operation permit, permittee agrees to comply with changes in department rules and Florida Statutes after 3 reaser-able time for compliance. prOVided, however, the permittee does not waive any other rights granteo by Florida Statutes or oe- partment rules. 8. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aouatic life or property and penalities therefore caused by the construction or operation of this permitted source, nor does it allow the per- mittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an oreer from the department granting a variance or exception from department rules or state statutes. 9. This permit is not transferable. Upon sale or legal transfer of the property or facility covered by this permit, the permittee ~hall notify the department within thirty (301 days. The new owner must apply for a permit transfer within thirty (30) days. The permittee shall be liable for any non-compliance of the permitted source until the transferee applies for and receives a transfer of permit. 10. The permittee. by acceptance of this permit. specifically agrees to allow access to permitted source at reasonable times by de- partment personnei presenting creaentials for the purposes of inspection and testing to determine compliance with this permit and department rules. 11, This permit does not indicate a waiver of or approval of any other department permit that may b!! required for other aspects of the total project. 12. This permit conveys no title to land or water, nor constitutes state recognition or acknOWledgement of title, and does not consti- tute authority for the reclamation of submerged lands unless herein provided and the necessary tltte or !easehold interests have been obtained from the state. Only the Trustees of the Internal Improvement Trust Fund may express state opinion as to title. 13. This permit also constitutes: f ~ l>~~itmrJ'aXi~~~~~ ~a'<lX~eX~6iX~6~.Y.X(;g)V-'tl '/ X ~X~Pbl<~l5~~>>~~6r1<~~r'ti~~~ ~e\~~i6,f: *:S~ ~ [X; Certification of Compliance with State Water Quality Standards (Section 401, PL 92.5001 , . PAGE 2 OF 4 PERMIT NO.: APPLICANT: 44-37258 George Kyle ~ PERMIT NO.: APPLICANT: 44-37258 George Kyle SPECIFIC CONDITIONS: CONDITIONS: (1 ) The permittee s h a 11 :proriite :~c:i~ ~c ~',.r~:.:~"tme1rt ., subject to Depa rtment permittin9 ~l:JU~:i-(f!~",,'~,'1btkcw.l~;l;~t-s;x 1 ots a but tin g the pro po sed canal s ':wWil!UI4t:tni::r-::t:y".c'lti' --nr.... ""m~'Ile"ty-s; x lot s are developed with businesses or Te3~EnC~ (2) The permittee shall install all necessary sewer 1 ines to provide sewer service to the lots, subject to Department per- mitting requirements. (3) Each deed or agreement for deed for the lots abutting the proposed canals shall contain a restriction requiring connection to a central sewage treatment plant when one becomes operational. MONITORING REQUIRED: None '" Po.GE 3 4 OF PERMIT NO.: 44-37258 APPLICANT: George Ky1 e R E C 0 r~ t'l END E 0 BY: Expiration Date: April 1,1985 Pages Attached, PAGE ..., Issued this \q cay of M a'r c h 82 , '9 STATE OF ;::LORIDA DE?ARTMENT OF ENVIRONMENTAL REGULATION VICTORIA TSCHINKEL, SECRETARY I~~ \ 4 Signatu re 4 OF l. -- .V' :~ -.." .. \" ;~;; \' 50''''' C A. )..,lA-\.. J~ 0 .J ~I~ ~ - C " . ~ ~ l! ~ooo \ e i"o ..oj '" 1'. 0 " ~ -".:.J + + " ~11: 1Il ) ,. e l05 ' y\ ( 7 \ I, ( : G ~ ) .~ 2 ~ ct. . \ \J 2- c :. 5 ~ ~ ..J 0 U I. Il () ~ ~ .\1 4 - \ --- f:J ~ ~ I, :::. \ ~ \. Z r '= ) "--.. . ~ t-.. 1'22.5' K",(LE. ~LVD .:e .. " .i --( ~ .-,~ ..-..;:._,;.;.,.__,,3 '... 1 -, r t, t 0 ~ 0 t , I Jl .~ un ~ I 0 5 tu I ~I J j l Q ~ 4 <l ~ ):1 J ~J 0 ~ ~~~ U l1. v --4- a ~ ; . 2 \005' \ '2. 2. , '5 t'l p'l + o o + ~ r: '? q- I 50' """'. ~rCAYA"'\'E: ,\-1:50 '-:T'. Pli'~ Cl.l.,)A.L ~ ~P<:'lC6.t) ~\L~ o~ UPLA)...H:~ P"-b. N - \""( p\ c...t::- \.. e:,LOc..\:::.. -'A:: /I.~ <>,) I - -:-:=- EERMIT 44 - 37 25 a ~'D ~-- .L. J.L . 16 {\\t\ J ~ :a,1f\ ~_o x> w -' fL o fl'0 11 "' [0 (l. . ), )l -{p ~ '> () , , I I I .! I : i ..;, () . (1 u. 000 ~cf) l !O~l1i I w>G" ..JOw }71:1 J.~{) fC €:V I - ,-". - l!.' 1f>! . ." e. " \ (f- .,. - ...{ l~~ )~(l1 : -@ J ~ lA Oe ;,.y "PIWE C\J.A.I.i~EL-_ ''''cr' .,,- . ~ 1 ~' to. _~J ~.. ~ .-- - , , Ti-- :::._-:".,-. 4., , J ; ~ "i ~p ..A "\.. ......- s;:..ee j~ z: -vrnO r; rT}....J f' [1J (U _. 'J: ~~ r;-i ~ r (. 0 [Tl OlJ ~ fW -1~ ~ ~g - r.. r ..ff\ () ::. ~ .0 II C f' I 8 r. -" J> r lJ I tI' <. ...{ 0 (]I --1 CTl .J. ,;> " ~l'r'\ ,... -<. '. - 1\' ",.. .. . Jf:: .. . ll~ -. .. ". .. ,. 0;. ~ , ... .... ...._....._-~ .~--- ~ . . t " Q .... ~ 61 ~ ~ '" '" 'd ~ -=oJ z- r t _=::':::::'':.:::1 ~ oJ _3 __ ---~ =:1 u.l (J) Ul " - = ----=--~ ~ OJ '" [--- ---~---, N &' . oS;:: '3 4-0 1.. J. r [Tl V1 r ,- ... o :---' . .1., / z:. ;. o Il.~~ I I I m ml1UJ1 )<(J'a - 0 0 ~-u(\ - 0 1 UI17. ..f\(ilo (} p~ ~ c(\o ~pJ r .( _ ~ ~ ~ r 0 -1 . r. ~ I P \l r 0' ill ;~ ~ PERMlT 44- - 37 2 5 8 . ..., ..... - 1,'~ )...., .. NOT'CE OF START OF WORK AUTHORIZED BY PERMITS ,iDKtE WORK AUTHORIZED UNDER DEPA!ftMEHT.:eF'~m~:t:-c"~7.J"'-''''''~.. .~~'57 .=::..:,':....l'l"'._ 1~ S~19B3 DATED MH.~'~~., ..... _.~.~_. .~,..-._-~_ TO PERFORM WORK IN a canal sys-tem:somll!cttatt~w;';';i ;I~i:1GGl"'':'rulel , WAS STARTED SAJ'FL 586-F 15 NOV. 82 SIGNA TURE DEPARTMENT OF THE ARMY CORPS OF ENGINEERS NOTICE OF AUTHORIZATION lJi S!P198119 v A PERMIT TO EXCAVATE FOUR CANALS AND TO REMOVE THE EXISTING PLuGS IN THO OTHERS, AFTER CONSTRUCTION, TO DEPTHS BETWEEN -4 AND -6 FEET t1EAN LO~1 \'lATER (r1LW) IN WATERS OF THE UNITED STATES, A CANAL SYSTEM CONNECTED WITH PINE CHANNEL AT SECTIONS 4 & 5, TOWNSHIP 66 SOUTH, RANGE 29 EAST, PORT PINE HEIGHTS, BIG PINE KEY, t10NROE COUNTY, FLORIDA HAS BEEN ISSUED TO KYLE BROTHERS LAND Cm1PANY, INCONl~ Stp ~83 19 GEORGE B. KYLE, VICE PRESIDENT .~ ADDRESS OF PERMITTEE KYLE BUILDING, Ut% f1A . CORAL GABLES, FLORIDA t PERMIT NUMBER 80B-2157 ~ D EREAUX, . , COL, CE . b"C-, DIstrict E"IIIMII' EM F_ 4331 -.70 THIS NOTICE MUST BE CONSPICUOUSLY DISPUYED AT THE SITE OF WOII. · 0"0: I,. 77 232-... '.J. ", , l . =~c:::.T l o ......., -"'r- ! .1 (~ I :lo.- l: t. I I L- ..:S\\,E ~ .:~ ~- N ! . . 4~~ '-v"-5. t::::~e ~:;;.:.J ,N t>\C; ? \ \..) 'C. "<:.E"l' it D .J ~ .r 10' 1- ~:":::>~\<J'{ '6 \ . .Vlc"II-.I\\'Y :5KETC-H ~,.~ ,5' -f1 J, 4 ':2 ~ . f II:>' t 1'5.' it: IS' F,~r- _ .+-:>.0 " . ll.oc.":'P >.1:' 1""'I..:.,~ ~""o.7s I '/) "'-'7~ _ -1:\~u.~o.o "111-'.E' /alc.~v ~'1?'1 i:C>~ A,c,Eb. / / ~o rTOK -.< '1:'-'- ;' / II / .I / I I Ii r/ef...; i A /A.2:.1-A ~, . I / / /) I! / I / / / / I / / I: .:5 E. c... T I 0 D 1.:...-1::.. c. A. U b. \... f;:. F.::..o~ \' :s u p I 'I ~ ",,- --R T""(PI(tiL ea~T ~L..\? 1'\: '2.0' :~ '{iiiOi l ~o~'~'o~ ....&.-"'-~ :....ro ... C:)~ 'b' \ j.. L Po ,. ,.... \ ''.~ '. .', :I ~ ~ LDCAl"\Okl'" ."0"- I D ~~L.'.....;= _ vo.._oo 1 -----, ,000 7.c:;:>C:IO FI:::OM NOS c.\...\~\ \\4-..;9 ~ 10' r~' ~'?:~-;-.,~~ ~..J'J~C'!'-.:....,..::. / ~ ~ ;} I / / ,:1 EEIlMlT 44 - ,7 25 b PURPOSE: COMPLETE ~~-=:.\ot:;I..lTIA.\.. O.lTUH ME:l..U ~t:!e. Lu-Ve:.L AOJAC(NT PROpeRTY O"H(RS' CD ~E'c:: An~c.4Et:l U'~T o .:)tJ!) CIV, ~\ 0 ~ ~K. I/o 0'" n.) IN M.b...~t4l:....DE" c..o...~k.,- AT e\ c:;. P\ U E"" K..~ Y COUNTY or MOurt,.o-;- STATE -=L. lPPL leAT lOti BY ~YLa- t!.~~ SH(ET OAT ( 1..,....".,).::>v...."::J 16;], . Application No, JB-2157( DUPLICATE .' ( Na~e of Applicant KYLE BROTHERS LAND COMPANY, INC. 1~ SEP 1983 1 Z- StP ~88 Effective Date Expiration Date (If appUcable) .DEFtA'RIMI!N!r]Jf!,;;,~~RMY .",..~tJl:~........- .r~"~:~. ~,~~;._,,-' ~<-~ Referring to written request dated . n'>'t~~~~~\!~:"i~;,;,;~-::.~i~ IX 1 Perform work in or affectingnavitJali18N11IL .rIl~~"::;:$,jiJ"rr':;i'J;!S~~.t;nn of the Chief of Engineen. pursuant to Section lOaf the Rivers ancH:l:ar~"'f:~.;iL;:i...Jl~,~'-i '-.:. .!!Ut; IX 1 Discharge dredged or fill material into waters of1he ~LupaD-tDe issnance of a permit from the Secretary of the Army acting through the Chief of Engineers pursuantto Section 404 of the Clean Water Act (33 U.S. C. 13441: ( 1 Transport dredged material for the purpose of dumping it into ocean waters upon the issuance of a permit from the Secretary of the Army acting through the Chief of Engineers pursuant to Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (86 Stat. 1052; P. L. 92-5321; George B. Kyle, Vice President Kyle Brothers Land Company, Inc. Kyle Building 165 Madeira Avenue Coral Gahles, Florida 33114 IS hereby authorizeii by tlie Secretary oCtli'!l Army: to excavate four canals and to remove the existing plugs in two others, after construction, to depths between -4 and -6 feet mean low water (MLW) in at waters of the United States, a canal system connected with Pine Channel in Sections 4 and 5, Township 66 South, Range 29 East Port Pine Heiqhts, Big Pine Key, Monroe County, Florida in accordance with the plans ana drawings attached"hereto which are incorporated in and made a part of this permit (011 drow- illIlS. Iliu. file Ilumb.r or oth.r d.(illit. UUllti(iCOtioll marks. 1 1-3, 3a-d, attached subject to the following conditions: I. General Conditions: a. That all activities identified and authorized herein shall be consistent with the terms and conditions of this permit; and that any activities not speCifically identified and authorized herein shall constitute a violation of the terms and conditions of this permit which may result in the modification, suspension or revocation of this permit, in whole or in part. as set fortb more specifically in General Conditions j or k hereto. and in the institution of such legal proceedings as the United States Govern- ment may consider appropriate. whether or not this permit has been previously modified. suspended or revoked in whole or in part. ENG FORM 1721, Sap 82 EDITION OF 1 JUL 77 IS OBSOLETE fER 1145.2.3QJJ 1 '. ~. r. rr I be no Wlnla.onable interference with. navigation by the exi.te-lo.... L I the activity authorized ., That th herein. t..: That this permit may not be transferred to a third party without prior written notice ~ the Di.trict Engineer, either by the transferee'. written agreement to comply with an term. and condition. of this permit or by the tran.ferree .ub.cribing to .thi. permit in the Ilpace provided below and thereby agreeing to comply with all term. and condition. of thi. permit. In addi- tion, if the permittee tranaten the interellts authorized herein by conveyance of realty, the deed .hall reference this permit and the termll and condition. .pecified herein and thill permit ahall be recorded along with the deed with the Regi.ter of Deedll or other appropriate official. u. That if the permittee during.~ U'Q_.~Ik":'lu"'~~~Q; ;~.. previoullly UDideDtified,ar- cheological or other cultural ~~..-:*tijtrt tbD;:jK., ;~.: .~~f. ',,,,~OD that might be eligible for li.ting iD tlie Natiozial~"'~.~hI'iM!\;;, "~'""""\'f c;"''-.' .::~~. , , , .' II,' Spectal Condltlonr. lHnd;,. -]" Il~~.."'.~~\~::;;~;:_?;"-;':~7:~';';,~~~~~. ..--- .:-J 6y -tJUa ,..",utI: \ \ I ,I! ~: \ ) " (I \ (,' " ' II I, \, ,_t ,.<l' .\ " / 1'1 I f I' " \' . ':a..t:\CariaY'excavation shall be conducted so that all spoil material is pre- vented from discharge in any remaining wetlands adjacent to the canals under construction.' All such spoil material must be stockpiled only in upland areas for us'e in refi 11 i ng blocks 46-52 canal s to depths from -4 to -6 feet MLW and to fill existing canals to no deeper than -12 feet MLW. b. Certified survey of cross-sections of the existing and proposed canals at no more than lOa-foot intervals in order to document depths not greater than -12 feet MLW in the existing (unplugged) canals and not more than -4 feet, sloping to -6 feet MLW in the six proposed canals, will be submitted to this office before it authorizes the removal of plugs to these six canals. c. This permittee will construct a secondary sewage treatment plant with deep well injection effluent disposal at such time as 10 of the lots adjoining the proposed canals have been occupied and before any more than 10 are constructed. In the interim, sewage disposal for 10 such lots will be by septic tank within each authorized residential pad fill. d. Turbidity curtains shall be installed and maintained in the mouth of the existing canal system whose excessive depths are to be refilled, until such time as any associated turbidity has fallen below State standards. 3 - .' NOTICE OF START OF WORK AUTHORIZED BY PERMITS ..DATE WORK AUTHORIZED UNDER DEPARTMENT DF "&Etl'.lRMT4REl&~IT ~_#'i&lJ8-.0060 DATED ('\cp , ., 0~ '._' ~;34' .... wetl.a~lIJA~p..1id.rv :-::";l~::.:.:r';,--to;d~eiiil~ United ~''''''''''~i:~;~-~tr;*;,,,,;u,,,,~..._ f'--l ;~'.~!-'~~...-..~4: .-t.-'~f"4"'~_ ~a._~U~ ,~ System wh2.t1l~:"'OO-~P:llte;;.;;t~i.;=; finei TO PERFORM WORK IN WAS STARTED SAJ FL 586- 8 15 NOV. 82 SIGNATURE ~,....,~,~......"..~-- -" ..,-_..........,....~aoc--___ iii I 1 I II 1,1 1 1 j . j DEPARTMENT OF THE ARMY CORPS OF ENGINEERS NOTICE OF AUTHORIZATION . ;" September 14, 19 84 ~ A PE~rr TO PLACE FILL TO CONSTRUCT 46 RESIDENTIAL PADS & DRIVEWAYS AND 5 ACCESS ROADS IN WETLANDS ADJACENT TO NAVIGABLE WATERS OF THE US IN THE PORT PINE HEIGHTS CANAL SYSTEM WHICH FLOW TO PINE CHANNEL 1 , . i I , i AT SECTIONS 4 & 5, TOWNSHIP 66 S, RANGE 29 E, BIG PINE KEY, MONROE COUNTY, Fl i - -- . -- -, HAS BEEN ISSUED TO GEORGE KYLE ADDRESS OF PERMITTEE 165 MADERIA AVENUE CORAL GABLES, FLORID PERMIT NUMBER 84B-0060 ON September 141,9 84 E ENG Fonw 4331 Jul70 · ~I I." 2J2-... . , 'i f . THIS NOTICE MUST BE CONSPICUOUSLY DISPUYED AT THE SITE OF WORl. Appllc.t1on No. _ OIl~-0060 Name of Applicant KYLE, GEORGE Effective Date ~~~:p , '-I ,. .L' \.J. Expiration Date (If applicabl.) <)rp 1 :1 '."", ," " . ~J OEPARTMEN7~MY '$:," <,~'f,I'llIft'ft.....,. .~,...,.C(I~I-." Referring to written request dated Se:pt:e1Dber"~ .'JIi~~~~.. '.:~:':':" ;: :::....._ ~ ( ) Perform work in or affectiDg31-;.' ....~~~~:'-;;];~~:~;""T.w;"W;lr~:~ of the Chief of F~~. pursuant to Section 10 ofthe Riven- 1iiI....... lr q~=k~";.j~~!;.lJi7:..C.~1I!Jt 0()4 Discharge dredged or fill material iDto...........ddIliil ~rmn: ,;1,........ e of 11 permit from' the Secretary of the Army acting through the Chief of Engineers pan~S""'''''.l ;j{t4~.wat.er Act (33 U.S. C. 1344); ( ) Transport dredged material for the purpose of dumping it into oCeJID'Waters upon the issuance of a permit-from the, '_;1..,' ,(. Secretary of the Army acting through the Chief of Engineers pursuant to Section 103 of the Marine Protection.Researchand':'h';~':' ;.,.. Sanctuaries Act of 1972 (86 Stat. 1062; P.L. 92.5321; George Kyle 165 Maderia Avenue Coral Gables, Florida 33134 is hereby authorized by the Secretary of the Army: to place fill to construct 46 residential pads and driveways and 5 access roads in wetlands adjacent to navigable waters of the United States in the Port Pine Heights Canal System which flow to Pine Channel at Sections 4 and 5, Township 66 South, Range 29 East, Big Pine Key, Monroe County, Flori da .... in accordance with the plans and drawings attached hereto which are incorporated in and made a part of this permit (Oil draw- illgs, give fiu IIumber or other defillite idelltificatioll marJu.) labeled "Application by George Kyle," dated November 12, 1980, revised December 12, 1983, in six sheets subject to the following conditions: I. General Conditions: a. That all activities identified and authorized herein shall be consistent with the terms and conditions of this permit; and that any llctivities not specifically identified and authorized herein shall constitute a violation of the terms llnd conditions of this permit which may result in the modification, suspension or revocation of this permit, in whole or in part, lIS set forth more specifically in General Conditions j or k hereto. and in the institution of such legal proceedings lIS the United States Govern. ment may consider appropriate, whether or not this permit has been previously modified. suspended or revoked in whole or in part. ENG FORM 1721,Sep82 EDITION OF 1 JUL 77 IS OBSOLETE IEllIl4$'2.J01I b. That all activities authorized herein shall, if they involve. during their construction or operation. any discharge of pollutants into waters of the United States or ocean waters. be at all times consistent with applicable water Quality standards. effluent limitations and standards of performance, prohibitions, pretreatment standards and management practices establish. ed pursuant to the Clean Water Act (33 U.S.C. 13441, the Marine Protection, Research and Sanctuaries Act of 1972 (P.L. 92.532. 86 Stat. 1(52), or pursuant to applicable State and local law. c. That when the activity authorized herein involves a discharge during its construction or operation. or any pollutant (including dredged or fjU materiall, into waters of the United States, the authorized activity shall. if applicable water Quality stan. dards are revised or modified during the term of this permit. bemodified..if necessary, to conform with such revised or modified water Quality standards within 6 months of the effectivecia&e8i1D1!r'~Gl' modification of water Quality standards. or as directed by an implementation plan contaiDed-m:..1 af.....~.....b,A__j,flaij..llt:ll!adanis. M-within such longer period of time as the District Engineer. in consultation with- ~ .h~~Wl!lk~t~!'l'1tm.inmaeataJ ~I"otection Agency. may determine to be reasonable under the circumstances. d. That the discharge will.D01.4 t............~a~gJi!'.~r !"~:;;;;'Jurfti. ". ~!z':::"~;":;'.~"a~=muied'aDder the Endangered Species Act. or endanger the critical habit8t_~"'-"1 --. e. That the permittee agrees to mak2<___... ~~""'~~resecUC:e ~.construction or operation of the work authorized herein in a manner so as to minimize1lDY -4~--ill..~1fiS1t."WikIlife, and natural environmental values. f. That the permittee agrees that he will prosecute the construction or work authorized herein in a manner so as to minimize any degradation of water Quality. g. That the permittee shall allow the District Engineer or his authorized representative/s) or designee(s) to make periodic in. ,.,. spections at any time deemed necessary in order to assure that the activity being performed under authority of this permit is in accordance with the terms and conditions prescribed herein. h. That the permittee shall maintain the structure or work authorized herein in good condition and in reasonable ac. cordance with the plans and drawings attached hereto. i. That this permit does not convey any property rights, either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to property or invasion of rights or any infringement of Federal, State, or local laws or regulations. j. That this permit does not obviate the requirement to obtain state or local assent required by law for the activity authoriz. ed herein. k. That this permit may be either modified, suspended or revoked in whole or in part pursuant to the policies and pro- cedures of 33 CFR 325.7. I. That in issuing this permit. the Government has relied on the information and data which the permittee has provided in connection with his permit application. If, subsequent to the issuaQce of this permit, such information and data prove to be materially false, materially incomplete or inaccurate, this permit may be modified, suspended or revoked, in whole or in part, and/ or the Government may, in addition, institute appropriate legal proceedings. m. That any modification, suspension, or revocation of this permit shall not be the basis for any claim for damages against the United States. , n. That the permittee shall notify the District Engineer at what time the activity authorized herein will be commenced, as far in advance of the time of commencement as the District Engineer may specify, and of any SUspension of work, if for a period of more than one week, resumption of work and its completion. o. That if the activity authorized herein is not completed on or before day of , 19 ,(three years from tlu dau of iuuallce of thu p.mait unle.. otherwiu 6pecifiedl this permit, if not previously revoked or specifically extended, shall automatically expire. p. That this permit does not authorize or approve the construction of particular structures, the authorization or approval of which may require authorization by the Congreaa or other agencies of the Federal Government. q. That if and when the permittee desires to abandon the activity authorized herein, unless such abandonment is part of a transfer procedure by w!Iich the permittee is transferring his interests herein to a third party pursuant to General Condition t hereof, he must restore the area to a condition satisfactory to the District Engineer. r. That if the recording of this permit is poaaible under applicable State or local law, the permittee shaH take such action as may be necessary to record this permit with the Register of Deeds or other appropriate official charged with the responsibility for maintaining recorda of title to and interests in real property. 2 II. That there hereiD. I no uDreuonable interference with navigation by the e.ltilltence or t e activity authorized t. That thill permit may not be tranllferred to a third party without prior written notice to.the District Engineer. either by the tranllferee'lI written agreement to comply with all termll and conditions of this permit or by the transferree subscribing to this permit in the IIpace provided below and thereby agreeing to comply with all terms and conditionll of this permit. In addi. tion, if the permittee transfers the interellta authorized herein by conveyance of realty, the deed shall reference this permit and the terms and conditions specified herein and this permit IIhall be recorded along with the deed witl\ the Register of Deeds or other appropriate official u. That if the permittee during P"'O"'- .lilua'llIIJx~,;:!ttlTO'ri~~b.crt:n. "--.,n.w. .. previously unidentified .ar- cheological or other cultural resOUR:e.-i"w..-... .~t.:t~l:',,)g}"'" ',' -:.;'{ t~~~A1:rz\rjBriacW:tion that might be eligible far listing in the National Regiateraf'~.m:i~"~l~~!.~~.~~~-!!~t.!il'~~~. II. Special Conditions: (Hue "",~....,fiC ~~Jb-:t.':.f;;::''';;::''~1::t:~~.';:;-~;w:thor.ized by thi3 permitl: a. Fill for each of the 46 wetland lots will be limited to a 3D-foot by 3D-foot fi 11 pad and IS-foot by 25-foof dri veway fill; b. Reverse swales will be constructed along the canal frontage of all 96 residential lots; and" c. The sewage treatment plant required by permit 80B-2157 will be constructed on an existing upland lot south of Kyle Boulevard. -v 3 The following Special Conditionll will be applicable when appropriate: STRUCTURES IN OR AFFECTING NAVIGABLE WATERS OF THE UNITED STATES: a. That thill permit doell not authorize the interference with any exiating or propolled Federal project and that the permittee IIhall not be entitled to compenllation for damage or injury to the atructurell or work authorized herein which may be caused by or result from existing or future operations undertaken by the United States in the public intereat. b. That no attempt shall be made by the permittee to prevent the full and free use by the public of all navigable waters at or adjacent to the activity authorized by this permit. c. That if the display of lights and aignals on aIiy s.tr:uctarelOr_klOBmhorized herein is not otherwise provided for by law, such lights and signals as may be preseribediJ)'l'tlnt~l2!It:ttc"""QuEd'UraU be installed and maintained by and at the expense of the permittee. d. That the permittee. upon ~~ r:r Lti_:Brevl'1<'a! ;~',j ;>ftL, . ~,nL o.lt!l!?UDJite;ez:piration before completion of the authorized structure or work. s.haU,,~__~.w'W::: U ,;ii,_i18L '-o}" ;.;:;,~ ~,,'il1;~:manner as the Secftltary 'Of the Army or his authorized repr~' l.1_'''~~~C:-., :.t..;',;;.:----, ~:.:~!.TI~llr.:und.iiianB. If the permittee fails.to cora- ply with the direction of the Seeretou,..dfA1l(1 ~h!$i,i.n-:;'\"l;e'h,i,),-",;.;;;,...;,uve;1;_~ or his desi-gnee-mayTelltlllllt the waterway to its former condition,b,!<.~""'''',1I!h1:'!~;ij;;.~;'~';;, ... ~1:;;:,<:a."tlIel8Jtfrmn the permittee. e. Structures for Small Boats: That ')Ha...~JL..AL..3l':~'A';' ~,~_c.t't:hi! structure permitted herein may be subject to damage by wave wash from passing vessels. Thei..uBDCe'Of'thD-permit does not relieve the permittee from taking all proper steps to insure the integrity of the structure permitted -nerein and the safety of boats moored thereto from damage by wave wash and the permittee shall not hold the United States liable for any such damage. MAINTENANCE DREDGING: a. That when the work authorized herein includes periodic maintenance dredging. it may be performed under this permit for years from the date of issuance of this permit (ten years unkss otheru'ise indicated); b. That the permittee will advise the District Engineer in writing at least two weeks before he intends to undertake any maintenance drerlging. DISCHARGES OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES: a. That the discharge will be carried out in conformity with the goals and objectives of the EP A Guidelines established pur. suant to Section 404(b) of the Clean Water Act and published in 40 CFR 230; b. That the discharge will consist of suitable material free from toxic pollutants in toxic amounts. c. That the fill created by the discharge will be properly maintained to prevent erosion and other non. point sources of pollu- tion. DISPOSAL OF DREDGED MATERIAL INTO OCEAN WATERS: a. That the disposal will be carried out in conformity with the goals, objectives, and requirements of the EPA criteria established pursuant to Section 102 of the Marine Protection, Research and Sanctuaries Act of 1972, published in 40 CFR 220- 228. b. That the permittee shall place a copy of this permit in a conspicuous place in the vesselto be used for the transportation and! or disposal of the dredged material as authorized herein. ,.This permit shall become effective on the date of the District Engineer's signature. ....("l --~...;~ ", 1 ,. PERMITIEE s~.-:t~:;}c~:;. :~-G!~ DATE OF THE ARMY: SEP .'~ .. .. ::34 rl es T. Myers ISTRICT ENGINEER. .s. ARMY. CORPS OF ENGINEERS Transferee hereby agrees to comply with the terms and conditions of this permit. DATE TRANSFEREE DATE 4 u.~. GOVE..NMENT PRINTING orr:CE 1983 0 - 401-534 --""'~.~'~,. ~j.: ~( "/...... .. . '" ,q L :>"-_ - ~ .. .........,L'---- --.,.a ., :~ ~?D;)~~l ':~ _~ 7 , .~.... 'V ' , ~""I..'- Jnited States Departlnent of the Int(4&'1" FISH .-\010 WILDLIFE SERVICE P.O. Box 2676 Vero Beach, Florida 32961-2676 February 24, 1984 District Engineer U.S. Army Corpso:f ~~ P.O. Box 4970 Jacksonville, Florida 32232 Dear Sir: The Fish and Wildlife Service has reviewed notice of application 84B-0060, dated January 27, 1984. The applicant, George Kyle, has requested a Department of the Army permit to place residential fill 1n wetlands of Big pine Key, Monroe County, Florida. Our comments are submitted in accordance with Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C., 661 et seq.). Mr. Kyle proposes to construct forty-six, 3S-foot by 3S-foot fillpads, plus driveways, and five access road fills leading from an existing road in the Port pine Heights canal system. In addition, the sewage plant is proposed to be located in wetlands north of Kyle Boulevard and would be constructed after 10 lots in the application area are occupied. Fish and Wildlife Service biologists initially inspected the project area in conjunction with permit application 80B-2157. This permit, issued in 1983, authorized excavation of shallow canals through upland fingers (old fill) within an approximately 10-acre wetland remnant in the Port pine Heights Subdivision. Although the wetland 'had been disturbed in the past, saltmarsh vegetation (mangroves and saltgrass) had regrown over the years, and the area, though somewhat impounded, is periodically flooded by high water levels and by rainfall. As part of the permit for canal excavation, Mr. Kyle agreed to specific mitigation measures. 1. The new canals were to be excavated to depths from 4 to 6 feet (including two older canals which were isolated by plugs) and, 2. Areas within the existing (tidal) canal system exceeding 12 feet in depth we:.-e to be refi tied. It also was agreed that no filling of wetlands would be accomplished under the canal excavation permit. The subject application involves the development of wetlands south of Kyle Boulevard. A Fish and wildlife Service biologist reinspected the project area on Febuary 13, 1984. Prior to the development of the i I j i i i I " ,,- - - - .. Kyle canal and road system, the area proposed to be filled was part of a high marsh community at the north end of Big pine Key which appears to have had a tidal connection to pine Channel to the west. Fill berms along the canal banks ~ Kyl~ ~ulevardts roadbed have all but impounded th€se highc:m:arJlih"iilecJands.. Dea.d stumps and branches strewn over the site :i:nri;....te~,,;-- .':j; '.f',;u; r.t'J"owa-.s at: one time either graded or chained.~:l:JDw!e1!!.e:t".l~'\i+. '. ,....:;...=:h..-we:t.land. species has occurred in most ~~, ~~. ;" """':":::~c~:"';;-:;ill'e~5ed caprock to organic muck Over z:at-.uc.k.."'.~...{;'-c,.~::::: .;'::.n, -'3 ~~s of standing water over approximately ~o:rtt:tb1n.f....".,l.C';Pr:q,':.Q..:>.t.;d fill site at the time of the inspection. The we~laDd ~ c~r~ consists of black, white, and buttonwood mangroves, sea oxeye, sea lavender, salt grass, saltflat grass, and sawgrass. As stated previously, four additional residential canals have been permitted but not constructed on the site. The areas through which these canals would be dredged have been disturbed either by blasting or filling, converting them to fingers of upland. A number of small fish were observed in the standing water but were not identified. Several wading birds, including Tricolor heron, great blue heron, white ibis, and great egret, were seen feeding in this area. There were signs of heavy wading bird usage as well as many raccoon and key deer tracks. One doe key deer was observed on the property. Although Mr. Kyle proposes fill pads (35 feet by 35 feet each) off of the new roadways, rather than filling the entire lots, we believe that far less damaging alternatives exist that would still allow residential development within this sub-division. Three proposals that come to mind are: 1. Since the canals authorized by 80B-215? have not been constructed, a single small boat marina could be developed, and then houses could be constructed on remaining filled areas within this portion of the subdivision. 2. With or without the authorized canals, residential housing could be constructed on the existing fill areas and minimal parking pads (20 feet by 20 feet) could be placed directly off existing roads. If the applicant elected not to construct the canals, those disturbed areas could be used as access roads. This would then allow construction of the number of residences proposed, but with less extensive filling. 3. If the applicant elected to construct the authorized canals, minimal parking pads (20 feet by 20 feet) could be placed off of the proposed access road, provided old fill areas are scraped down on an acre-for acre basis for each new portion of fill placed in wetlands. 2 In any case, the sewage treatment plant proposed to be located in wetlands should be located in uplands presently available. The application, as it stands, is no~ Mater dependent and does not provide any mitigation for f:i 1:Ji~ cf :'fu-.:.Lionalwetlands. Because Ie s s dama g i ng a It ern.at:i1l'eae:t.tmit.s '~~:<lf:i.l'Y ,:av.ail.ab Ie, we re c omme nd denial of his proPOs.al'~::-;,n.~">. ~'':C'u.cl filling in wetlands is reduced and/or mjr;i'~i::Um:li~,,~:::ct'C.!iilL,,;c;A:v1:',::;t.1h-.a;t:.'E.lling by creating new wet lands 01tt ,Df ~:."tl}J::lj-':"'~* Should your agencyrlP...;"'le :%iQ'~JI!~ ,I\tiie '..pe:mi~as originally proposed, we recommend that you ini'tia~'am'SU.h:.tion -pursuant to Section 7 of the Amended Endangered Species Act prior to proceeding toward permit issuance. These views constitute the report of the Department of the Interior. Please advise us of your action on our recommendation. ~ Si')er;lY f"0.,~_ ~ - Joseph D. Carroll, Jr. Field Supervisor -----... cc: EPA, Atlanta, Ga. NMFS, St. Petersburg, Fl. NMFS, Panama City, Fl. FG&FWFC, Tallahassee, Fl. FG&FWFC, Vera Beach, Fl. DER, Tallahassee, Fl. ARD-HR, FWS, Atlanta, Ga. 3 UNITED STATES OEP~ NT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE Southeast Region 9450 Koger Boulevard St. Petersburg, FL 33702 February 23, 1984 FjSERlI3jGL:I 904-234-5061 Colonel Alfred B. Devereaux. Jr_ D is t r i c t Engineer, JacksmIri.J.J.e :lTi.~'=-;;:,,:::,~ Department of the :\Tmy .~1:.Q.;f~c..,~~"",,",,':"~ P.O. Box 4970 Jacksonville, FL 32232 Dear Colonel Devereaux: The National ~Iarine Fisheries Service has reviewed Public Notice number 84B-0060 dated January 27, 1984. ~Ir. George Kyle proposes to fill wet lands for roads and parking pads which are part of a non-water-dependent residential development adjacent to tributaries of Big Pine Channel. Based on our analysis of the enclosed report and information provided by the Corps, the project will destroy over 5 acres of wetlands by filling for roads, parking pads, and a sewage treatment plant location. These wetlands provide seasonal feeding and nursery habitat for important recreational and commercial fish and shellfish and necessary forage fish, detritus. for marine food chains, and promote good water quality by filtering upland runoff and binding loose sedi~ents. Therefore, since the applicant already has an existing residential develop- ment on his remaining upland property and the project is not water-dependent, we recommend that the permit be denied. However, should the Corps not concur with the denial of the permit, we believe that the permit should not be issued without at least the following conditions to mitigate wetland damage. 1. Placement of fill for residential development shall be limited to no more than 500 square feet adjacent to the access roads. 2. All structures on the lots shall be on piles above the wetlands. 3. One and one-half acres of wetlands shall be created for every acre filled by construction of the roads, parking pads, and sewer plant. These wetlands shall be created from uplands adjacent to existing canals or adjacent to the proposed canals permitted under (80B-2fS7). These wetlands shall be no higher in elevation than +0.5 feet NGVD and planted with red mangrove seedlings until 70% survival is achieved one year after initial planting. If you have any questions, please contact Mr. Gary Nelson of Our Panama City Area Office at 904-234-5061. Sincerely yours, ~~~~ Richard J. Hoogland Chief, Environmental Assessment Branch ~~""~~>......- ~ 1'1' '\ I~"'" , 1 1 " . ,. ~ .' .I'" '-'-.. . -- // H. RAY ALLEN, P .A. / ATTORNEY AND COUNSELLOR AT LAW 818 WHITEHEAD STREET KEY WEST, FLORIDA 33040 H. RAY AL.LEN February 23, 1984 TELEPHONE 130~' 298'2835 Department of the Army Jacksonville District Corps of Engineers P.O, Box 4970 Jacksonville, FL 32232 ATTN: MR. VIC ANDERSON RE: DEPARTMENT OF THE AR...'1Y PUBLIC NOTICE NO. 84B-0060 Dear ~r. Anderson: I have been retained by the Port Pine Heights Property Owners Association to represent them in the above-referenced matter. In turn, I have retained the services of Dr. Arthur H. Weiner to evaluate the impacts of this project on the wetlands to be filled pursuant to this permit application. I do not feel it is necessary to restate Dr. Weiner's position as to the impacts associated with this project. (See attached letter) I have also received a letter from Capt. Mike Vaughn, President of the Port Pine Heights Property Owners Association, outlining the problems and concerns of the Property Owners Association associated with this project. Again, I do not feel it necessary to restate the position of the Property Owners Association. (See attached letter) As an attorney conversant in environmental matters, I wish to request that the U.S. Army Corps of Engineers initiate a Section 7 consultation with the U.S. Fish & Wildlife Services as required by the U.S. Endangered Species Act, as this federal permit application so triggers the Act. I also request that a public hearing be held in Monroe County so the citizens, and more specifically, the Port Pine Heights Property Owners Association, be allowed to voice their concerns in a public forum and have an opportunity to examine the federal agencies' experts as to this project, I am very concerned that this project, the filling of 3.2 acres of wetlands, is the largest dredge and fill project submitted in Monroe County in a number of years. It is my opinion that a public hearing is warranted in a project as substantial as this one. Also, I would like an opportunity, on behalf of my clients, to review the entire cont~nts of the permitting file in this matter. Please contact me as to when it will be convBnien~ to review the CDE file in this project. By copy of this letter I am aJ..s;o ~.,6:::::'~'::';'''':'::'':'':'= ..c:f'Y..larida Department of Environmental Regula~ion ::thaI:. Xt;i;s~;"'1,""~-:: "-'~'~'r-'''''''o. -:tnat that State Agency should assert ~i,~d.'ir:!'l:i:~.:''::2;.:..::;.:t..t-"..:.::::=-.;:r,:::ib:i.I:.h ....auld require both Chapter 253 and Chapter .403..:Flo:rj::ikL:::'~:::'::; ;-~::........:i..t. evaluation in this case. If you have any questions or require any additional information, please do not hesitate to contact me at your earliest convenience. Thank you for your time and consideration in this matter. Sincerely, /~~ H. RAY ALLEN /k Encs, cc: Victoria Tschinkel, Secretary Dept. of Environmental Regulation Jeremy Kraft Dredge & Fill Supervisor Dept. of Environmental Regulation Capt. Mike Vaughn / . .......-.. ,q.J'l"tJ "., \4 ~4~ d ~.1 ~ Q~~... ......!<\~ ~.1.6 , \)....ys:19 ,'., .f'1~ ....~ .f4 ..... ..i ..D '-,' III , ,.I '" j) ~!." ,-V' ~. .. c../f.dhu7. ~'f. {[;VEin.::!, (Ph. 2:). cRt.? !Box 370 ~ummE.7.La.nd !J{'::'jl 9io7.ida 33042 ( t- e:b'r- !J.a.""~J ,?;? ~ ] '934 Mr. H. Ray Allen c/o Por t Pine He i ghts PT",~""1:y ~.~,,-.. P,O, 80x 43 81g Pine Key~ Florida. 33043 '."<;-:'~_...--'. -..,- .~.J: ~ De~r- ~1r, A 1 I en : I .30m ~v r. I tin gin r. e s p 0 n ~. e tot h €' pub I i c n Co tic e j s sue d b yo t r, e Cor D s f c. r a project to be carried out In the Port Pine Heights subdivision of 8ig Pine Key, Monroe County~ Florida (Permit Appl ication No. 848-0060), I am in OPPosition to this project which~ in my opinion~ wi 1 I have adverse impacts upon the wi Idl ife, wetl.Olnds and ~vater qual i ty of this .Olrea ~'Jhich is ~vi thin the N a t ion a I Key De e r. l.J i I d I i feR e f u g e and the Gr' €':d LJ hit e Her' 0 n N a t ion a I I,JiJdlife Refuge, I have considerable experience in the Big Pine area having worked in the Florida Keys for the past twelve years as a field biologist carrYing out ecoJc"~icE<.1 ~.ur'''''eys~ assessments .Olnd inventc,ries in both the ter'r'e.;.tr I .3.1 an,j mar i ne en'-,' i r'onmen t. I h.Ol'Je I i 1.led, for th i -:_ time per. i Q.j, d i r. e c t J;...... a c r. 0 -:.5 Pin e C h ann e J f r- om the sub.j e ': tar' e30 and use t his bod 'y' 0 f ~v.:der' for r'ecr'eation and nature stud:y'. I ther'efor'e feel that I hOl'Je both a pr'ofe~.=.ional and per'sonal inter'e':.t in the pr'oposed pr'oject and its environmental consequences, The subject ar'e:<., as defined in the pub I ic notice, is a ~vetland containing canstJ tuent species of plants and animals Characteristic of Lmver Key's I,vetlands. A cc,mpi lation c,f the biota d€'perrdf'f,t upc'/r t/,i:;. t.>'~.o? of system is to be found in the appendices of theU,S. Dept. of Interior pub! ication by Odum, et. al. ~ The Ecology of the Mangroves of South FI or i da: A Commun i ty Prof i Ie. Al though not aJ I of the I i:.ted forms a.r.to to be found in the subject ar'ea~ ma.ny, in fact~ can be located on si te or in the adjacent water bodies. This report, as w~1 I ~~ ma.ny others to be f 0 u n din the s c j e n t i f i c J it€' r. a t u r. e, ':".) e r. ~v h e J rn i n g I >' doc urn e n t the imp 0 r tan c 1? oft I d a I ~,I e t I and s, t h €' r. e f (J r €' m a kin g i tun n e c e5 .~ r. ',1 t 0:' r- e I t e r. ate h to r e w r, a t I = ~v ell k n OLv n t 0 b Ci t h t h e5 c i en t i fie c Cirnrn un i t y an d too: on c ern e d reg u I a t or' /' agencies. I n add i t i on t ':J t h 1? adve r s€' imp ac t.:. I,'Jh i c h wou I d be i n f 1 jet e d upon t his. blota~ which is dependent upon these wetlands, as a resu! t of the propOStod canal dredging and plac€'rn1?nt of 3.2 acres of fi I I, of particular concern a r 0:- t, h 0 s e imp act s ~v h I I: h .3. f f e 0: t the f €' de r3. I l'y end a n 9 ere d . Key 0 €' 'J r ~Odocoi leus virginianus clavium), The prOJtoct SI te is a known feeding ir~3. for this animal whose population is thought to be diminishing as a resul t of habi tat Joss and s'Jcondar':y Imp.:;,cts whlCh~ccompany urbanization. Ther'e IS no question that tr,is projt?ct, as pr'oposed, would e-xacE-rbat1? tt"'~SE- problems 3.n,j pla.:e 3.ddl tional pr'o:-ssur'e.s on the deer population. I tiS my be ) i e f 3nd secondary~ on endangered species, LJi I dl i fe Ser".... i ce i's th3.t bec.3.I.J'se of these potential impacts~ both primar';' the pop u I a t ion and "c r. i tic a I h a bit .3, t " 0 f a fed era I I y a "Section 7 consulatation" with the U,S, Fish and required by the U.S, Endangered Species Act. Other vertebrate users of this habi tat include a variety of wading bir'ds includino the oreat ~Ilhite h1?ron (Ardea herodius occidentalis), re,jdish eqr'et ([)ichroma~assa rlrf,esoe1tS)".wt"1"t~ ibis (Eudocimus albus) and the l,ell';w-cr'OLllned night h.l?ron ~~fIQ5's;a '-l':lnJ.a..cea). These bir'ds hav<t? bo:-E-n I isted by tho:- Florida Lcrmdt:tiE'e :nn'::.::,.!"'"? -ann Endango:-r'ed Plants and Animals (FCREPA, 1978). It is my con to:- n t i on ttJa't 'ttri?':p:r"Qp:b.~:d';3r.:d';.1 T,-gan d -f i I I i n g in tt'1 i s a r. to a ~1l111 el iminate feeding ha.nitai: -f'01' aH :c""f th1? above-l isted animals. Moreover~ secondary impacts resulting ~~om ttl1? development of additional sirll::4le family homes in this ar'ea wi I I affect both triO:- l..oJi Idl ife directl:>" as we] I as their habitat. Restricting the fi I led area to only a hous2 pad 3.nd access r'oad ~Ili II, in theory~ ,jiminish the de.....elopment's impact on trle are a" 5 wet ] and s , H OLoJ e li e r' ~ i tis not r' e a lis tic t 0 bel i eve t hat f '.J t u r e encroachments wi II not OCcur therein. Homeowners wi 1 I undoubtably~ over time. place additional fi I I on these wetlands in order to store boats. boat trailers, tra\"'el tr'ailers, etc, E,....en if no additional fill is emplaced, human activi ty in these wetlands wi I I cause their do:-gradation, Pets, especiall:-r dogs, ~oJi II ch.3.so:- deer' and bir'ds and m.3.ke these liJetlands unsui table habi tat for these nati'....e species.,' The development ~Ili II also Incr'ease vehicular traffic in the area tr,ereb:-r resulting in additional road Kills of deer, Other secondary impacts that should be considered includo:-: 1, t'lor-e in t-:-ns I ve rno'squ i to non-target adul t and larval spr'd.:>" i n9 insects as i nth ear. e:.. .3. n ,j IJJeJ J as J ar'\"'a 1 its consequenco:-s rnar in e f or.ms , for' 2, tdater' qual i t;v' pr'obl ems assoc i ated wi th st()r'm ~Ilater' r'unotf wh i ch wi 11 include her'bicides, pesticides and fer.ti 1 izers., 3. The effects of blastin9 on the fresh~'Jater "lens" in the area upon I..Jhich the de-:-r depo:-nd tor drinKing water during the dry season, Fresh water t r. om the I ens i s f 0 u n d , t h r 0 u g rl 0 u t the yea. r , Ins h a l I O~'J sou I t ion formations on both Big Pine and No Name Keys. This is considered to be a. major determinant of the deer~s range, @special Iy durin9 the dry season, t10 r. e 0 v e r', n urn e r 0 U s h c,m e O~1l n e r son 8' i g Pin eKe ;v' uti J i z ell? n s ~Il ate r. f c, r a mu 1 t i tude of househol d pur'poses IAlh i cl1 requ i r'e fres" ~'.Jat@r. Ut i I i =at I on of ~Il e I J ~Il a t @ r. f r. orn the 8 i 9 Pin Eo I ens. 1 e s=:. e ns. the ,j e man,j 0 nth e a que d u c t 1 i n e thereby maKing more water available for other ar-:-as of the Keys, Blasting and c:.. n .:.. I dr' e d 9 i n g e;'( p os e .s the I ens. toe \,., a p 0 r. .:d ion and t "" l? e f f e ct=:. 0 f .s a J t water intrUSion. PERMIT APPLICATION NO. 848-0060 2 ~lternatives to be considered for this project should include: 1. El imination of all fi II ing except for' par'kin9. areas adjacent to the p~'.)e,j r'oad. for' each lot. All other constr'uction should be "pi le- :;uppor.ted". This possibilit:>, IS feasible since no ~.eptic ~.),.:;tems are P r. 0 p 0 s e ,j , the r e bYe I i m I n.~ tin 9 the nee d for' f i I led d r a i n fie I Ij s . T his al ternative would decrease most of the fi I I impacts but would not diminish all of the :.-bo'v'e-I i sted secondary' impacts. 2, Re~.tr'ict filling and di;>'..I€'I~nt"tGt'~""1T"t..~. .si.oe .0+ each canal. Economic benef its, to the de\,'i;> 1 op1?r., cnu\,;1j',$:'" 'rr."!'r,,: ",',e-:-Jby bu j I,j i no dup l-ex units on the de\.l'?~wlJed sid1? Th4-S...wo:UJ.'d:L("TCf""U3;;""..:::l7_""'~i'TI'Y !:"hang€' to RU-2 to b€'. .;}r'01rr te,j b'y' ""!onr'c,e Count~.... Thtjl~U:,'"~~,::::.::-,,,:: JD~.ti ~\lat1?r'+ront I anD s'hOlJ 1 d be tr':..n:;fer.r.ed to the -Fi,E.t, aTldJ..irjj1ztf;';;';'e.~-:"""':"i:c_'? OT' to a conser'\','atic,n group so that the unimpacted ~1I-et]ands,coul''t:l'bE-:P~r-'h?d in per'petui t:y.. If thIS option were exercised, the develop1?r could conceivably enjoy significant tax benefi ts. :=: i nee r. e 1 ~...- I AvLT (J~ Arthur H, Weiner, Ph.D PERMIT APPLICATION NO. 848-0060 J Port Pine Heights Prop~rty Owners Assocoation. Inc. . PO. Box 43 . Big Pine Kev, F!ondi'l 33('.43 RE: ~ermit Ap?lication :L.c,. .F-4~OC60 Ga~o ~~y~e ?e'oruary 1;'"'\ ..:...7, =-?34 ",r. J.ay ~. Allen 605 Juval Street Key ~est, Florida 33040 0ear ?.ay: As I nave nreviously'mentioned to you, t~e ?ort ?ine Heiv~ts ?roperty Owners Association, at an open annual general m~9t- ing, expressed some serious concerns regarding the ?ropoc~d fill ?roject, and t~e overall dredge and fill project in genera2.. ?irst let we :::J.aJ\.e clear to you, that contrary to ~:lhat is -;~.o''';n on the hearing rec:Jrds for the canal openings (D:2R .?er~i -: ~;c. 4' -7258 ' ,~ -'~ ,'J... H 00::> 21r-7\ J...'" . J.... 'Lf--j " 2..TIQ vC.:... .'eriTIlL. c;o.~ i...;- -] ), L.!llS ~~SSOCla.L.lOn :-.~ver did 3u~port the Kyles in their application~. The Associa-:ion ~as in fact oisre}resentsd by eight Jle~ber3 of the boar~ Jf .. .. .. '" .. ~ . . ..... , , . ':"..ll"'Sct.ors '\tlnO ~lo"CeQ 3.-c a :Joa..r:::. mee"Cln:::, a'::'2r -crYlnz 'lr2~...""""~-=-:::_ ..... ,... ,. I '- . --' .. .,-..,.....,-......... lully ~o orlng tte mat~er ~o vo~e at an o~sn illeetln3. ~~~: is ,,';ell d.ocumented. ':;ithil1 C1.:r cOr'Jorate records. The fol -: 0"'" ~- o~inions ~ere thoroushly and u;animously voted u~on a~ ;::~ ~'.,~n'J.a~ i[e~~ing, he~d on ?ebruar:; 11, 19':)4 at l:OO,:'~I, B.t - ~;e Blg }l~e ~lons Cluo. ~e are concerned that ~ith this 96 lot project, added to e:d.stL1S lots, the potential cuiliu:: '::ill be too extrer.1s ::JUr 2I32... tlr. I~yle has already mads ~lsr~ty of ::lCney '::it:--, :in'3 :-Ieig~1ts. 7~Q, './~ :or :-ort ". ~,,-..:... C),Y""Al'-'" 0 pd 'iJpr: 1 of' &.' ~~"I.... 'u-... ....11..:0 ~.... .. .e ar: ..._:_....rJ'"'....,!. ....o~~~rn_ on _ _~.a~~ 0.1., "oJ.:=:. ..lL... l.l.e '::::'.2...'..::. lS flO;,l2':'lS ell::; '::l ~ :~ln ~:1e '::et lanJ.3 In vo 1 vec.. 'in e ''Jro t e c t er: ;, ~ ~ ;::a r r~ ~ ,..., -:--.::0. "::).. ~.~ ..., p. .=...,.., ~ ~ '..... C ":l;' .. ~ ~.,.... ~ ~,-, ~.....L. \H I ..:.. ~ '" \.4 _h..,,-,,..:.:>Jr_G. L8,j -'JJ~ __8 u_o..lj U~_...~, as ~re vr.....c,L. ..Ill,,'? :ror::- r......C'.-,t ;-;l'u'" ::';o-(";'"'\n- ."ll.....e I'Ol'- -Ll'ttle ~11UO ~oron'- r ""t' ...... 0':>' v..""'Ct,. -J .... .J._......,J ..:;oJ ..1 l"...,), .....J_ - ~......, ..,:), \Jal".,'oJ~": ~pret3 '{ 11 ... ,'" "r or~ c." -;...... q 0 - r'""pr-; c"'~ ,..."'r:-J......... 1.- G ., :.:> , e _0,. \.Jro\.n..~ ~ll.:;,'J."" ..er ll.,-" .cw":- ~ ""-.1 h_"'....~a~'-', .reen ,,:e:':lrrS -nri """""'r at'~o......'- J...;"'lt 8"'''' co~"""nl y O'O'-Oy,,/oC' cnhl'S '. ' dl .... ,.J.""^-l.J.J :...~ '" L...Cl 0:.:'-1... ~.....-...J - u..~ - '. _.0 area l::: ':lt~in the i;a tional Key Deer Clnd Great ',;'hi t e Ueron :, ildli fe .2efuges. ....../1 :'\ ~, ~'-f t, ~r ~ ,,.....~ )l.. \ ~~ "\1~ /\.,,\ \~"":, /A \ '- . /' ~ , I '.':e- are concer:1ed about trle :?lacenent of the se',':age t2':'eatoent ~lc:L'lt. '.:'!le '::etle.nci.s north of l':yle '::ould ~ot be reas?naole, .leavi~? 3oi~le ]o~tion 0 f. ~he u::;J1and JC lots. ThlG ~oulQ Jut ~ne ~~an~ In a r9sl~ential area, and u~~ind of =~nj ~o=e3. I J ... " \ \, 5" uar.,d ",'::h In the ~ation~. . ,_ / ,)eer Refuge, and the Great White Heron Wildlife Refuge :;r /~ :::;".~V''''''':.../ -""'~ - ../~ /, '. ',.' J' (i ,~:"~~ ,":, ' 1 i~ "'s.,!..6' I ! / ~ ,. ~.., 'I ' ;' '~'" ~ ,\\\': i," ~ ~~ <~~ \ ,fir) ~~)~ ;J:X/'" Port Pine Heights Property Owners Assocoation. Inc. . PO Box 43'. Big Pine Key. Florida 31('43 (2) a1reaay recieved Ii 0 1: ane I{ey, an d the C8wwon sonic -"I' ~ .;es "'. .e ar-e W'e:J:'Y :t:..~~n'eT'.l ~1:1J. the need for .. r= us'e .,.....,.:.... ,+,=:~!~.. . ~ ~ .... 0......"<:0 +r" C t' -; n 2" t' 1., "" l,,_.... ~ ...~ '----:--..1 :.........:...;...>.. _','. _T _ ......... ~ J", U ....1.-_ ~ L'" ..... t7::n ~-;::~.;,' ,~~lQ",.i.:;:m7 nones ha7e SOl!le;;;:,1.:r:lTf"1t'::~.-:iL:'i.f_ '''c';p'irJ:lJil blasting 0::1 othEr .ht:aJ..~::~:':,2}:; "~::...t:;::-;., :nn:t to Ulen tion fTbom::rs" .:fx.mn .l'.rav:al ';~I'l":~-:a:::f-t out of Key :.'!e are concerned that persons building homes on the filled Dads on undistur~ed ~etlands, ~ill almost certainly begin to fill more ~~d more of their ~roperties, resulting in a potential enforcement problem for the Corps of Engineers. ~:;e do not feel that i.'fr. Kyle can in any reasonable way, mitigate the negative environmental impact of developing the 46 ~etland lots. It is obvious to '.lS that 't.:1e area is not a rain :-:ater 3'::e:.:l~:, infested with rats, snakes, and mosquitoes, as has been de- scribed in the past. It is however a rich and healthy wetland, with good growth of white mangroves, buttonWOOdS, and most of the other native wetland plants. The shoreline birds that feed in the area return daily, indicating a good food source. As I previously mentioned, we all feel that we were ~rong- fully misrepresented in the past on this whole yroject, and feel ~e need to take those steps necessary to do ~hat is in the best interests of the persons who no~ reside or ~ill at sooe time reside in Port ~ine Heights, and to most imnortantlv do ~hat is best for the declining ~ildlife of Big ?in~ Key. .. We:'liier;;fb:f;:;votaELunanimousi7~to engage . your talents in our. atteinPt.-:to.:=-request~~-;p"g.?:l.~~-:-:~earin~~bY.' the Corpsof;::ngi:;,esrs, and to he2.) us in all .,...ays :Jos3ibl'e,~in sto~J?in;' this il2.- conc ei 'led 2nd. ill-tined addi tion to .;'ort ~ine 3eiShts. Ca~t. Nike Vaughn .-'resident "'t- 1,_\,\ ~ ~. 'l-'~r~ ~~-:.) ~. 'c/-. ) '" .-..., ",,1 j~ , \ I .... ",M .~ \ '. , , / i' 11 . . \ \L Situdted Within the Natlor Deer qduge and the Great White Heron Wildlife Refuge. J ........:;---:'- ~ , ~fjt) \1&-~ south florida regional planning council 2~O ~C~:\'~Vccc 2i'vC SiJ;re 140 ~Cii\;Wccd.':~c-nC::J JJ021 ~r::'sc;"C ,-~ "':L.' ~ q61 .'2c::GQ ~ j28.42j6 .~::::ce February 17, 1984 Mr. John F. Adams, Chief Regulatory Division U.S. Army Corps of Engineers P.O. Box 4970 Jacksonvll Ie, FL 32232 Attn: Vlc Anderson Re: SFRPC #84-0125, USACE #848-0060 Goerge Kyle Dear Mr. Adams: We have reviewed the above-referenced applicatIon, and are concerned that the proposed fll I would be placed In productive wetlands that are Key Deer habitat. This would be contrary to the Conservation/Coastal Zone Protection Element of the Monroe County Comprehensive Plan, which states: "4.1 Marine grass beds, mangrove communities, and associated shoreline vegetation wll I be preserved to the greatest extent possible. Removal of vegetation or modification of natural patterns of tidal flow and nutrient Input, cycling and export should be considered only In the case of overriding public Interest" (Mar I ne Resource Management Po I Icy) . "2. Residential developments that are feasible only through the creation of land by dredging and fll ling of su~merged areas wi I I be prohibited" (Shoreline Modification Policy). Also, we understand that the original permit Issued, by the Corps for dredging of canals In this area contained specific special conditions that proh I b I ted f III I n wet lands. Thank you for this opportunity to comment, and please keep us Informed about any actions taken regardIng this application. 'M. 8arry eterson, AICP Executive Director cc: Curtis Kruer John Meyer /~/ STATE OF >LURIO. tc ) O!PARTMENT O~ 808 GRAHAM. Co",""nor Health & Rehabilitative Services DISTRICT ELEVEl-l PUBLIC SERVIC!: BLDG. MONROE COUNTY HEALTH DEPARTMENT 1'. O. BOX 157 "TMTERiIf"~, '!fLOJttl)A 33070 February 1, 1984 District Engineer Department of the Army Jacksonville District Corps of Engineers P,O. Box 4970 Jacksonville, Florida 32232 Dear Sirs: This letter is in comment on Permit Application No, 84B-0060 George Kyle, 165 Maderia, Coral Gables~ Florida 33134 The proposal in the application will be in conflict with Chapter 10D-6, Florida Administrative Code (FAC) in the following areas. "Standards for Onsite Sewage Disposal Systems: Standard onsite sewage disposal systems may be utilized where" .all of the following criteria are met: The original lot elevation (i,e. the elevation of the lot prior to placement of fill material) at the site of the proposed system installation and the additional Ilnobstructed land is not subject to frequent and long duration flooding," 100-6,47(7) Since this is :1 wetland area, the Health Department will not be able to issup. a septic tank permit for the resid-ence. State of Florida Department of Health & RehabLlitative Services Monroe County Health J~partrnent Environmental He~lth Homer J, Rhode, III, Director bv qz?!J~nitarian [l cc: Homer J. Rhode II[