BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Certified Mail 7000 06600 0023 0948 8209
RETURN RECEIPT REQUESTED
In Re:
Petition for Variance from
CSX Realty Development, L.L.C.
(Boca Bay flushing culverts)
Lee County
File No: 36-0128783-002
OGC CASE NO. 01-0331
DEP01-0479
c/o John T. LaVia, III
Landers and Parsons, P.A.
P.O. Box 271
Tallahassee, Florida 32302-0271
_______________________________/
FINAL ORDER GRANTING PETITION FOR VARIANCE
UNDER SECTION 403.201, F.S.
The Department of Environmental Protection (Department) hereby grants to CSX Realty
Development, L.L.C., a variance from the requirements of Rule 62-312.080(7), Florida Administrative
Code (F.A.C.), for dredging and filling in Placida Harbor, a Class II Water, conditionally approved for
shellfish harvesting to allow installation of culvert pipes extending into Charlotte Harbor in Lee County,
Florida.
On December 1, 2000, CSX Realty Development, L.L.C., filed with the Department a Petition for
Variance, under Section 403.201(1)(a), Florida Statutes (F.S.). The $100.00 processing fee was
submitted in accordance with Rule 62-4.050, F.A.C.
The Department hereby issues this variance subject to the following findings and conditions.
Findings
1.
CSX Realty Development, L.L.C., (CSX Realty) owns and operates the existing Boca Bay South
Bayou culverts located in Section 26, Township 43S, Range 20E, Boca Grande, Florida.
2.
CSX Realty requests a variance from prohibitions on dredging in Class II waters approved for
shellfish harvesting as provided for in Rule 62-312.080(7), F.A.C., to extend flushing culverts into
waters of Charlotte Harbor.
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3.
CSX Realty provided the following documentation in support of the variance petition.
a.
Waters within the South Bayou were historically connected to waters of Charlotte Harbor.
The connection was severed by the construction of the former railroad grade that
traversed the area. The severed connection has created stagnant water conditions within
South Bayou and degraded water quality.
b.
Reestablishment of the tidal connection with waters of Charlotte Harbor would improve
the water quality of the interior lagoon and enhance wildlife utilization of the shallow,
sheltered waters.
c.
CSX Realty previously requested and was granted a variance (File No. VE 36-505) and a
permit (File No. 361776735) to construct the culverts. The lengths of the culverts were not
sufficient to prevent sand from occluding the harbor side openings.
d.
CSX Realty proposes to redesign the culverts to facilitate flushing by lengthening them on
the harbor side and installing clean-out joints and manholes to prevent occlusion of the
pipes.
e.
4.
Water quality reports were part of the project submittals.
The Department reviewed these proposals and reports and has determined that:
a.
CSX Realty submitted a timely request to modify and extend the permit to install the
culverts. However, the request is not consistent with the criteria for modifying the permit
and therefore must be reassessed as an Environmental Resource permit under Section
373.414, F. S.
b.
Careful design and control of the water exchange after extension of the culverts will
minimize water quality impacts to Charlotte Harbor.
c.
Redesign of the culverts with manholes to allow inspections and periodic maintenance
and clean out will maintain effective flushing.
5.
Granting the variance is contingent upon CSX Realty’s ability to secure the Environmental
Resource Permit.
6.
CSX Realty has addressed all of the variance requirements of Rule 62-110.104, F.A.C.
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7.
CSX Realty has demonstrated to the satisfaction of the Department that there is no practicable
means known for the adequate control of the temporary degradation of water quality.
Conditions
1.
This variance is granted under Section 403.201 (1)(c), Florida Statutes, which limits the variance
to cases where there is no practicable means known or available for the adequate control of the
pollution involved.
2.
This variance is based on hardship and as such shall be valid for two years from the date of
issuance.
3.
If CSX Resources, Inc. intends to seek renewal of this variance, application for renewal shall be
made no less than 180 days prior to the expiration date applicable in Condition #2.
4.
The variance is valid only if the Environmental Resource Permit is issued for this project, and is
subject to any and all conditions of the permit. The granting of this variance does not guarantee
the issuance of the permit.
5.
Given good cause and subject to notice, the Director of District Management may alter the terms
and conditions of the variance.
6.
Where necessary, proper turbidity controls shall be used to prevent violations of the State water
quality standards for turbidity. Further details of the turbidity controls may be specified in the
permit, if one is issued.
7.
CSX Realty shall conduct the following monitoring in addition to any and all conditions of the
permit, if issued.
a)
The following monitoring shall be performed 72 hours prior to installation of the culvert
extensions and at quarterly intervals for a period of 2 years after the project completion
(defined for this condition as installation of the culvert extensions). The first postconstruction sampling shall be conducted within 72 hours of completed installation and at
quarterly dates thereafter.
Parameter
Depth
Dissolved oxygen (mg/l– diel
samples taken at
4 hour intervals through
a 24 hour period)
1ft. below surface, mid-depth
and 1ft. above bottom
Temperature ( 0 C)
and1ft. above bottom
1 ft. below surface, mid-depth
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Salinity (ppt)
1 ft. below surface, mid-depth
and 1 ft. above bottom
BOD5 (mg/l)
1 ft. below surface, mid-depth
and 1 ft. above bottom
Fecal coliform
(MPN/100 ml)
surface
b)
Sampling shall be conducted quarterly for a period of two years after project completion.
The first monitoring event shall be conducted no more than 14 days after project
completion.
c)
All samples shall be collected and analyzed in duplicate from each location. Analysis
should provide a number not just less that standard value.
d)
Samples shall be taken at the opening of each culvert on the Charlotte Harbor end, as
well as from site number 1, 2, and 3 as used in the February 5, 1990 water quality tests
(map attached).
e)
All monitoring data shall be submitted within one week of analysis with documents
containing the following information:
(1) permit number;
(2) dates of sampling and analysis;
(3) a statement describing the methods used in collection, handling, storage and analysis of
the samples;
(4) a map indicating the sampling locations;
(5) a statement by the individual responsible for implementation of the sampling program
concerning the authenticity, precision, limits of detection and accuracy of the data; and
(6) documentation that the laboratory performing the sampling and analyses has an approved
quality control and assurance plan on file with the DEP.
f)
Monitoring reports shall also include the following information for each sample that is taken:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
time of day samples taken;
water temperature (0C);
depth of the water body;
depth of the sample;
antecedent weather conditions;
tidal stage and direction of flow; and
wind direction and velocity.
g) All measurements and analyses for each parameter shall be made using approved methods
providing a PQL (Practical Quantification Limit) below the water quality standard for the
parameter as listed in Rule 62-302, FAC.
8.
In the event that the Fish and Wildlife Conservation Commission’s Shellfish Environmental
Assessment Section (SEAS) determines that water quality conditions in the vicinity of the project
have been degraded to the point that the waters shall be under consideration for reclassification,
the Department shall require that the culverts leading to Charlotte Harbor be sealed off.
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A party to this order has the right to seek judicial review of it under section 120.68 of the Florida
Statutes, by filing a notice of appeal under rule 9.110 of the Florida Rules of Appellate Procedure with the
clerk of the Department in the Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard,
Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the applicable
filing fees with the appropriate district court of appeal. The notice must be filed within thirty days after this
order is filed with the clerk of the Department.
DONE AND ORDERED this ______ day of June, 2001 in Ft. Myers, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Richard W. Cantrell
Director of District Management
South District
FILING AND ACKNOWLEDGMENT, FILED, on this date, pursuant to s. 120.52, Florida Statutes, with the
designated Agency Clerk, receipt of which is hereby acknowledged.
_____________________
Deputy Clerk
__________________
Date
Copies furnished to:
Francine M. Ffolkes, OGC
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