STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA AUDUBON SOCIETY, ORANGE ) AUDUBON SOCIETY, UNIVERSITY ) BOULEVARD COALITION, INC., ) FLORIDA CHAPTER OF THE SIERRA ) CLUB, JAMES L. GAY and ORVILLE )
E. COX, )
)
Petitioners, )
)
v. ) CASE NO. 84-3691
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and THE ORLANDO- ) ORANGE COUNTY EXPRESSWAY )
AUTHORITY, )
)
Respondents. )
) ORLANDO-ORANGE COUNTY EXPRESSWAY ) AUTHORITY, )
)
Petitioner, )
)
v. ) CASE NO. 84-4122
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, FLORIDA CHAPTER OF ) THE SIERRA CLUB, FLORIDA ) AUDUBON SOCIETY, ORANGE AUDUBON ) SOCIETY, UNIVERSITY BOULEVARD ) COALITION, INC., JAMES L. GAY ) and ORVILLE E. COX, )
)
Respondents. )
) FLORIDA AUDUBON SOCIETY, FLORIDA ) CHAPTER OF THE SIERRA CLUB, ) ORANGE AUDUBON SOCIETY, ) UNIVERSITY BOULEVARD COALITION, ) INC., JAMES L. GAY and ORVILLE )
E. COX, )
)
Petitioners, )
)
v. ) CASE NO. 86-1045
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and THE ORLANDO- ) ORANGE COUNTY EXPRESSWAY )
AUTHORITY, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated hearing officer, Donald R. Alexander, on July 7-11, 1986 in Orlando, Florida.
APPEARANCES
For Petitioners: David Gluckman, Esquire (Case Nos. 84-3691 Route 5, Box 3965
and 86-1045) Tallahassee, Florida 32301 (Respondents in
Case No. 84-4122)
For Respondent/ Frank E. Matthews, Esquire Applicant: Kathleen L. Blizzard, Esquire (Case Nos. 84-3691 Post Office Box 6526
and 86-1045) Tallahassee, Florida 32314 (Petitioner in
Case No. 84-4122)
For Respondent/ Vivian Feist Garfein, Esquire Department of Deborah A. Getzoff, Esquire Environmental Twin Towers Office Building Regulation: 2600 Blairstone Road
(Case Nos. 84-3691, Tallahassee, Florida 32301-8241
84-4122 and
86-1045)
BACKGROUND
This matter arose on September 28, 1984 when respondent, Department of Environmental Regulation, issued proposed agency action in the form of a letter advising respondent/applicant, Orlando-Orange County Expressway Authority (Authority), that the agency intended to exercise certain dredge and fill jurisdiction over a proposed extension of the Orlando-Orange County Expressway System. The agency also advised that other portions of the project were exempt from Agency permitting requirements. Thereafter, on October 12, 1984 petitioners, Florida Audubon Society, Orange Audubon Society and University Boulevard Coalition, Inc., filed a petition seeking a Section 120.57(1) hearing to contest the agency determination. This matter was assigned Case No. 84-3691. On November 14, 1984, the Authority also filed a petition for the purpose of challenging the agency's jurisdictional determination. That petition was assigned Case No. 84-4122. On November 21, 1984 petitioners in Case No. 84-
3691 petitioned to intervene in Case No. 84-4122. Intervention was later authorized by Order dated June 24, 1986. By stipulation of the parties, it was agreed that the jurisdictional challenges would be consolidated and heard with any challenge to an intent to grant or deny a dredge and fill permit issued for the project. Therefore, Case Nos. 84-3691 and 84-4122 were held in abeyance for over a year until agency action on the permit application occurred.
On February 25, 1986 the agency issued a notice of intent to issue a dredge and fill permit and stormwater permit to the Authority to construct the project. On March 14, 1986 Ira A. Jarvis, a property owner in the vicinity of the project, filed a petition requesting a section 120.57(1) hearing to challenge the proposed agency action. This matter was assigned Case No. 86- 1199.
Thereafter, on March 27, 1986 the Florida Audubon Society, Florida Chapter of the Sierra Club, University Boulevard Coalition, Inc. and Environmental Defense Fund (EDF) also requested a formal hearing to contest the proposed agency action. This petition was assigned Case No. 86-1045. By orders dated April 15 and May 12, 1986 Case Nos. 84-3691, 84-4122, 86-1045 and 86-1199 were
consolidated for hearing purposes.
By order dated May 12, 1986 the undersigned granted the Authority's motion to dismiss EDF for having failed to timely file its petition requesting a hearing. The EDF then filed a petition to intervene on May 16, 1986. This petition was later dismissed by order dated June 24, 1986 because EDF failed to comply with Subsection 403.412(5), Florida Statutes. Ira A. Jarvis was also dismissed as a party by order dated June 24 for a failure to demonstrate that his substantial interests were affected by the permit proceeding. Case No. 86- 1199 was accordingly closed.
On June 3, 1986 James L. Gay and Orville E. Cox, two property owners, and the Orange Audubon Society petitioned to intervene in the consolidated proceedings. These petitions were granted by order dated June 24, 1986.
By notice of hearing dated May 12, 1986 the final hearing was scheduled for July 7-8, 11-12 and 14-18, 1986 in Orlando, Florida. The hearing dates were
later changed to July 7-11, 1986.
At final hearing the Authority presented the testimony of the following witnesses: W. Phil Reece, chairman of the Authority; David W. Gwynn, executive director of the Authority and expert in the areas of transportation planning and design, highway construction, operation and administration; Timothy T. Jackson, P.E., expert in transportation planning and engineering; Noel Wamer, expert in the dredge and fill permitting of highway projects, ecology and ornithology; Commander Ed Jones, commander and assistant fire official for the Orange County Fire Department; Robert A. Riddle, Jr., expert in drainage and stormwater design and engineering; Tom Dorman, chairman of the Orange County Commission; Vera Carter, member of the Orange County Commission; Ross McWilliams, expert in the areas of biology, marine biology, water quality standards, wetland reclamation and restoration, DER dredge and fill jurisdiction and regulatory permitting criteria; Sanford L. Young, expert in limnology, water quality assessments and the DER dredge and fill regulatory program, permitting and jurisdiction; William
G. Frederick, Jr., mayor of the City of Orlando; G. Ronald Best, Ph.D., associate director of the Center for Wetlands and expert in plant ecology and botany; Charles J. Allen, environmental permit coordinator for the Florida Department of Transportation and expert in the preparation and submission of highway related stormwater dredge and fill permit applications; Jimmie L. Gill, P.E., expert in drainage and stormwaters design and engineering; Harvey H. Harper, Ph.D., expert in stormwater management systems, hydrology, water quality
and water chemistry; Devere M. Foxworth, P.E., expert in transportation planning and economics and transportation system analyses; and Glenn Bryan, registered land surveyor.
The Authority also offered exhibits 1 through 66, including two composite exhibits, one containing thirty-five photographs and the other containing thirty-five documents in a motion for official recognition. All were received in evidence.
Respondent DER presented the testimony of Mark Latch, DER standards permitting section, an expert in biology, ecology, impacts of dredge and fill permits and DER jurisdictional determination; Maureen Powers, DIR jurisdictional evaluation section, an expert in DER jurisdictional determinations, botany, biology and plant taxonomy; Steven J. Fox, DIR division director of permitting; and Suzanne P. Walker, DER deputy division director of permitting. DER also offered exhibits 1-4. All were received in evidence.
Petitioners presented the testimony of Martin Goodman (University Boulevard Coalition, Inc.), Ronald Lancaster (Sierra Club and the Florida Sierra Club), Charles Lee (Florida Audubon Society and Orange Audubon Society) and Orville E. Cox (area property owner). Petitioners also presented the testimony of William Carlson, an area resident, and Walter T. Wheeler, expert in biology, DER dredge and fill jurisdiction and DER dredge and fill permit applications review.
Petitioners offered exhibits 1- 8 and 11-19, all of which were received into evidence.
The transcripts of hearing (seven volumes) were filed on August 1, 1986. Proposed findings of fact and conclusions of law were filed by the parties on August 22, 1986. A ruling on each proposed finding is contained in the Appendix attached to this Recommended Order.
The issues are whether DER properly determined its dredge and fill permitting jurisdiction, and whether a dredge and fill and stormwater permits should be issued to the Authority authorizing the construction of the project.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
INTRODUCTION
Respondent/applicant, Orlando-Orange County Expressway Authority (Authority or applicant), is a state agency created by Section 348.751, et seq., Florida Statutes, for the purpose of constructing an Orlando-Orange County Expressway System. Pursuant to Chapter 348, the Authority is composed of five members: three citizens of Orange County appointed by the Governor, the chairman of the Board of County Commissioners of Orange County, and the member of the State Road Board from the District of which Orange County is a part. The Authority's jurisdiction is limited to Orange County.
The Authority has been active since its formation in 1963 and has constructed numerous highways totaling approximately fifty miles of road. They include the Beeline Expressway, the East/West Expressway, the Airport Interchange and approximately 20 miles of non-toll roads constructed in those three projects.
The Authority intends to construct a northern extension to the East- West Expressway, a four-lane limited access tollway in Orange County, Florida. The project is commonly known as the Northern Extension of the Eastern Beltway. It is proposed to begin at the intersection of Goldenrod Road and the existing East/West Expressway and extend north to intersect with State Road 426, east of Dean Road. Approximately two and one half miles of the proposed Beltway, from Goldenrod Road to State Road 50, will be improvement and expansion of existing roadway. Approximately four miles, from State Road 50 to State Road 426, will be new construction. Although a long range plan exists which conceptualizes a beltway for the Orlando region, the project herein is designed as an independent unit to alleviate the traffic needs of its specific vicinity. Because it has no jurisdiction outside Orange County, the Authority has no control over future extensions of the beltway which may eventually take place in Seminole County. There are presently no construction applications pending for any such extensions.
On August 24, 1984 the Authority requested respondent, Department of Environmental Regulation (DER), to visit the project site and render a jurisdictional determination under the then existing criteria found in Rules 17- 4.02(17) and 17-4.28, Florida Administrative Code. These criteria were subject to change when the Warren S. Henderson Wetlands Protection Act (Act) became effective October 1, 1984. 1/ Because of favorable "grand- father" provisions in the Act, the Authority wished to have a jurisdictional determination made prior to the October 1, 1984 deadline.
Four locations within the project were found to be under DER jurisdiction as a result of a DER site inspection made on September 6, 1984. A fifth location was found to be a non- jurisdictional uplands. The five pertinent locations and the proposed construction at each location are set forth below:
Location 1 - Upgrading and expansion of the existing piping of the E-40 Canal at the interchange of State Road 50 and the East/West Expressway.
Two culverts presently exist on the site to carry the waters of the E-40 canal beneath the existing roadway. One culvert would be extended 185 feet to the east and a section of the culvert would be removed. A new culvert, approximately 400 feet long, would be constructed for the new on/off ramps to convey the E-40 Canal under the ramps and beneath an adjacent local access road. The DER jurisdictional wetlands to be filled are
.55 acres.
Location 2 - Crossing of the E-4 Canal.
The Authority proposes to construct two bridges, each 368 feet long, to span the E-4 Canal bank to bank. Since the only material to be placed within DER jurisdictional waters is pilings for these bridges, a calculation of filled or impacted acreage is de minimis.
Location 3 - Crossing of Trevarthon Road over the Beltway.
Approximately 1,000 feet of Trevarthon Road will be reconstructed as a bridge over the
new Beltway. The existing double 30-inch pipe culvert under Trevarthon Road, which conveys water from Lake Irma into the E-4 Canal, will be replaced with equivalent structures to go under the proposed Beltway. Approximately .33 acres of DER jurisdictional wetland will be filled.
Location 4 - Construction of the project through the periphery of the Lake Telfer wetland area.
Lake Telfer consists of approximately sixteen acres of open waters, while its wetland
system comprises approximately seventy-seven acres. The proposed right-of-way for the project is approximately 400 feet east of Lake Telfer at its closest point. An inter change will be constructed at University Boulevard. According to the original site inspection, 11.2 acres would be impacted, 4.1 acres of which are in the area north of University Boulevard.
Location 5 - Stormwater retention area.
The Authority proposes to construct an approximately five-acre stormwater retention facility in a grassy upland area south of the E-4 Canal and approximately 1,300 feet west of Harrell Road. The detention facility would treat the runoff from approximately fifty-five acres of adjacent single-family residential and mobile home sites that presently receive no stormwater treatment
and discharge into the E-4 Canal.
The DER jurisdictional determination was embodied in a letter dated September 28, 1984 from DER to the Authority's counsel. The letter read in pertinent part as follows:
This letter is in regard to the Department's jurisdictional evaluation of certain areas lying within the proposed route of the Eastern Beltway in Orange County.
On September 6, 1984, Department staff met with consultants for the Orange County Expressway Authority to perform an on-site jurisdictional inspection of the areas in question.
The first area inspected was within the "western alignment" of the proposed expressway.
This area included Lake Telfer and a bayhead contiguous to that lake. Based on
that inspection and information obtained from the Expressway Authority consultants, it was established that the current water elevation of the lake and the contiguous bayhead is
59.52 feet MSL. The extent and nature of
this hydraulic connection were established by inspection of Lake Telfer itself and representative portions of the bayhead area.
The letter triggered a request for a formal hearing in Case No. 84-3691 from petitioners, Orange Audubon Society, Florida Audubon Society and University Boulevard Coalition, Inc. James L. Gay and Orville E. Cox, two property owners in the area, and the Florida Chapter of Sierra Club were later allowed to intervene. The Authority also requested a hearing to contest the jurisdictional determination (Case No. 84-4122).
PERMITTING PROCESS
The Authority filed its application for a dredge and fill permit for this project with DER on February 7, 1985. This application contained a proposed generalized mitigation plan. The application assumed 12.15 acres of DER jurisdictional area would be impacted but the Authority preserved its right to contest that amount.
On July 3, 1985, the Authority responded to a completeness summary issued by DER on March 8, 1985 and provided answers to all requested further information concerning the University Boulevard Interchange. On August 2, 1985 DER issued its second completeness summary requesting further information for the project. The Authority responded with both an August 20, 1985 Response to Completeness Report and September 12, 1985 correspondence. Finally, on September 18, 1985, DER issued its third and final completeness summary finding the application to be complete as of August 20, 1985.
Further meetings and correspondence took place between the Authority and DER through the remainder of 1985. On December 23, 1985, as a result of interactions with DER, the Authority submitted a revised -application for the project. On February 25, 1986, DER issued a Notice of Intent to Issue a Permit for the project. This prompted a request for hearing by petitioners, Florida Audubon Society, Florida Chapter of the Sierra Club and University Boulevard Coalition, Inc. Intervention in this proceeding (Case No. 86-1045) was later authorized for James L. Gay, Orville E. Cox and the Orange Audubon Society.
JURISDICTIONAL DETERMINATION
Prior to the filing of an application, DER normally undertakes an inspection of the affected area in which dredge and fill activities will bake place to ascertain the extent of its dredge and fill jurisdiction. This process is commonly known as a jurisdictional determination. In broad terms, DER jurisdiction extends over the "landward extent of waters" of the water body where certain vegetation dominates. Rule 17-4.02(17), F.A.C., lists various species of vegetation to use as a means of determining the landward extent of waters. The vegetative index in effect prior to the promulgation of the Act is commonly referred to as the "old list" of vegetation. In January, 1984 this list was revised, with legislative approval in June, 1985, and now sets forth a "new list" of vegetation.
On September 6, 1984, five DER staff members and two Authority consultants visited the project site to conduct a jurisdictional determination. During this site visit, a staff member, Mark Latch, performed a visual analysis of vegetation existing on the Location 4 site vicinity, i.e., Lake Telfer and
the Lake Telfer wetland. Latch concluded that, based on dominance of "old list" vegetation, DER jurisdiction was limited to the lake surface itself. Latch's analysis of vegetation on the site is memorialized in an October l, 1984 memorandum describing the site visit.
Having concluded that jurisdiction could not be extended into the vegetated wetland by dominance of "old list" vegetation, DER staff observed that the water level from the lake itself extended into the vegetated wetlands. It accordingly concluded that DER dredge and fill jurisdiction could be exerted based on the elevation of the lake on that day. The elevation of the level of Lake Telfer was provided to DER by the consultants for the Authority, Post Buckley Schuh and Jernigan (consultants). The consultants' surveying team calculated the Lake Telfer water elevation to be at 59.52 feet on September 6, 1984.
In a letter dated September 28, 1984, DER issued its determination of jurisdiction for the project and concluded its jurisdiction at Lake Telfer was at the 59.52 feet elevation contour line, based on the "current water elevation of the lake and the contiguous bayhead."
The water elevation level of Lake Telfer and the Lake Telfer wetland was unusually high on September 6, 1984. A pump with a six-inch pipe had been active for some time, pumping water into the wetland from Hunter's Trace, a contiguous residential subdivision. Lake level readings, comparative hydrographic and historical data and photographs further confirmed that water levels were unusually high. The Authority's consultants observed that water levels were up into the pine palmettos, an upland species that cannot survive regular and periodic inundation. The consultants subsequently provided DER with a flood frequency curve showing that the water level of 59.5 feet is likely to occur only once every twenty years. A series of over thirty lake elevation readings was also taken by the consultants from February 1985 through May 1986 showing that 59.52 feet had been exceeded only once. Moreover, a hydrographic analysis demonstrated that historically 59.52 feet has been exceeded only 4 percent of the time. Finally, the Authority's expert in plant ecology and botany testified without contradiction that his analysis of the catastrophic death of trees in the Lake Telfer wetland system indicated that an abnormally high water condition existed in the summer of 1984.
Although the Authority provided documentation on the history of water levels, DER never attempted to establish an ordinary high water line (OHWL). Authority witnesses testified that, based on a variety of analytical techniques, the OHWL was waterward of 59.52 feet elevation on September 6, 1984. Also, DER witness Latch opined that an ordinary high water line would have been waterward of 59.52 feet.
Through testimony from a number of witnesses the proper methodology for determining DER jurisdiction under the pre-October 1, 1984 criteria contained in Rules 17-4.28 and 17- 4.02(17), F.A.C., was established. Under the former rule, a three step process is required. First, one must determine whether the area of concern is or contains a water body named in Rule 17- 4.28(2), F.A.C. The second inquiry is whether the area in question is contiguous to such a named water body. Finally, it is necessary to determine whether the impacted area is within the "landward extent of that water body." Considering the fact that waters ebb and flow, the landward extent of a water body is determined by the dominance of certain species listed in Rule 17- 4.02(17), F.A.C. Dominance is defined by Rule 17-3.061(10), and can be expressed in terms of numbers of individuals, areal extent (amount of area a
species would cover), or biomass. The proper field methodology to carry out the purpose of Rule 17-4.28 is to first identify the water body, and then move landward from that water body examining the vegetation for dominance of species appearing on the list. Landward extent of the water body ends where "old list" plants do not dominate.
On its September 6 visit the DER staff failed to observe the proper methodology by which jurisdictional determinations were made prior to October 1, 1984. This was because the jurisdictional determination was based solely on the elevation of water from the lake into the wetlands north of the lake after the staff determined that the dominance of "old list" vegetation terminated at the borders of the lake.
On February 26, 1985 the Authority forwarded, by certified mail, a copy of the September 28, 1984 jurisdictional determination with attached map and requested a DER validation pursuant to Rule 17-4.022(8), F.A.C. Following a request from DER for additional information and submission of same by the Authority, the September 28, 1984 jurisdictional determination was properly validated by DER on May 2, 1986. This action was consistent with the agency's interpretation of Rule 17-4.022(8) that the initial jurisdictional determination need not be accurate in order to be eligible for validation.
On February 11, 1986 DER adopted a change to Rule 17-12.120(2), F.A.C., which became effective May 15, 1986. That rule relates, inter alia, to jurisdictional determinations for grandfathered projects. The "old" rule read as follows:
(2) The Department's dredge and fill permitting jurisdiction for projects having
received jurisdictional determinations in accordance with Section 17-4.022(8), F.A.C., shall be determined using the vegetative index and other jurisdictional criteria as they existed on January 24, 1984, and as set forth in Sections 17-4.02(17), 17-4.28 and
17-4.29, F.A.C. Permit applications for such projects shall be reviewed, evaluated and issued or denied pursuant to Part I or Part II of this chapter.
The agency recognized that the language "shall be determined" in the "old" rule could be interpreted to provide that a new determination could be requested from DER using the pre-October 1, 1984 criteria for sites that had already obtained a jurisdictional determination performed pursuant to pre-October 1, 1984 criteria. In response to this concern, DER amended section (2) of the rule to read as follows:
(2) The Department's dredge and fill permitting jurisdiction for projects having
received jurisdictional determinations in accordance with Section 17-4.022(8), F.A.C., shall be the area previously determined to be within the landward extent of waters of the state and identified in the letter of validation
issued by the Department. Permit applications for such projects shall be reviewed,
evaluated and issued or denied pursuant to Part I or Part II of this chapter.
The "new" rule provided that projects with validated jurisdictionals based on pre-October, 1984 criteria would be grandfathered using the precise determination previously provided and that no new jurisdictional determination would be performed.
On April 7, 1986 DER issued a letter providing that persons having received a validation or having a pending validation request had the option of electing the "old" or "new" rule language. If a person elected the "old" language he could request that a new jurisdictional determination be performed pursuant to pre-October 1, 1984 criteria, as long as the request was submitted prior to May 15, 1986.
On May 5, 1986, the Authority requested that DER undertake a new jurisdictional determination at Location 4 applying the methodology for determining the landward extent of waters that existed prior to October 1, 1984.
On May 20, six DER staff members and three Authority representatives returned to the site to perform a new determination of DER jurisdiction based on pre-October 1, 1984 criteria. During this site visit, the agency botanist, Maureen Powers, followed pre-October 1, 1984 criteria and located the landward extent of Lake Telfer by analyzing the site for dominance of "old list" vegetation. Powers' analysis of the site led her to conclude that "old list" plants were not the dominant species in the Lake Telfer wetland beyond a very small border of vegetation immediately around the lake. This conclusion was based on her analysis of vegetation along a series of transects parallel to the border of the lake. Her conclusion, based on the lack of dominance of "old list" vegetation on these transects, was that DER had no jurisdiction in the Lake Telfer wetland, which lies north of Transect 2. She therefore concluded that DER lacked jurisdiction in the continuation of the Lake Telfer wetland north of University Boulevard. This was consistent with the same conclusion previously arrived at by Authority consultants. Even the petitioners' expert agreed with the limits of Powers' jurisdictional determination, if a determination was to be based on "old list" vegetation. The revised jurisdictional determination was set forth in a letter from DER to the Authority's counsel on May 28, 1986. It read in pertinent part as follows:
As you requested in your May 5, 1986, letter, the department has evaluated the dredge and fill permitting jurisdiction of the wetland at Lake Telfer using the pre-October 1, 1984 plant list. A memorandum summarizing the site visit is attached. In summary, the dredge and fill permitting jurisdiction is limited to the open water area of Lake Telfer and a narrow bank of vegetation around the lake.
Therefore, DER had no jurisdiction over construction activities at location 4, and retained valid jurisdiction of only .55 and .33 acres, respectively, at locations 1 and 3.
WATER QUALITY STANDARDS
On October 17, 1985, January 27 and April 23, 1986, water quality sampling was conducted by the Authority's consultants at four locations within the project area: (1) the wetland area adjacent to Trevarthon Road; (2) the wetland area northeast of Lake Telfer; (3) Lake Telfer; and (4) the retention pond west of Stonehaven Street adjacent to the Lake Telfer wetland. The Stonehaven pond receives runoff from the Hunter's Trace Development, a large residential area currently undergoing active construction activities. Water samples were analyzed for water depth, water temperature, conductivity, dissolved oxygen, pH, Secchi disc depth, particulate constituents and a number of other Chapter 17-3 water quality parameters.
Lake Telfer and the two wetland areas are characterized by highly colored and acidic water with low pH values. Violations of oxygen levels for DER Class III waters were observed on all sample dates. These sites were also found to have water quality violations of Class III water quality standard criteria for phenol, zinc, copper and cadmium. However, this was not unusual since elevated levels of phenol and dissolved metals are typical of this type of wetland. Water quality characteristics of the burned bayhead of the Lake Telfer wetland were the poorest. Numerous violations of Class III water quality standards were observed in this area.
The Stonehaven retention pond was neutral in pH and had dissolved oxygen levels above those required for Class III waters. The only waiter quality violation in the Stonehaven Street retention area was for phenol. However, concentrations of phenol leaving the retention area were still much less than those in the receiving wetland waters. Water quality analysis performed by Environmental Services and Permitting, Inc., Gainesville, Florida, in 1984, and by Mitsch and Associates, Louisville, Kentucky, in 1985 showed similar results to the aforementioned Authority analyses.
The Authority's expert in stormwater management systems and water chemistry established that when stormwater treatment systems meet the design and performance standards of Rule 17-25.025, F.A.C., an annual pollutant removal efficiency of 80-90 percent can be expected. It was further established that the discharges of treated and filtered runoff from the proposed project will be more neutral in pH and will have higher dissolved oxygen levels than the receiving waters. Higher oxygen levels are beneficial to fish, and increases in the pH of the sediment surfaces cause heavy metals to be bound and thus removed from the water column. Therefore, discharges from the project can be expected to actually improve existing water quality in the wet- land areas.
The Authority's stormwater management plans meet the design and performance standards of Rule 17-25.025, F.A.C., and have been designed to meet or exceed the water quality criteria established by DER in Chapters 17-25 and 17-3, F.A.C. The systems are designed to provide water quality treatment for the runoff from one inch of rainfall or one-half inch of runoff whichever is greater. This exceeds the requirements of Rule 17- 25.04(5), F.A.C., which allows for use of either standard.
The Authority's stormwater engineers established that the construction activities associated with the highway and the stormwater management system would include structural measures, techniques and practices for erosion control. As a result of these measures, no temporary construction-related water quality problems are expected.
The stormwater management facilities for the project will comply with all applicable ground water quality criteria found in Rule 17-3.401, et seq., F.A.C.
There will be no substantial degradation of existing groundwater quality. Further, treated waters will not be harmful to plants, animals or organisms, and will not be carcinogenic, mutagenic or acutely toxic.
The Authority's unrefuted evidence and testimony, with no controverting testimony from petitioners, clearly shows that no Chapter 17-3 Class III surface water quality standards or groundwater standards will be violated by the operation of the project. The evidence also supports a finding that the storm- water management plan for the project meets all Chapter 17-25 stormwater design and performance standards and exceeds water quality standards. Finally, adequate precautions will be taken to prevent violations of water quality standards during the construction of the project.
PUBLIC INTEREST TEST
Public health, safety or welfare, or property of others.
No evidence was provided by petitioners to show adverse affects from the project to public health, safety or welfare.
Through testimony of the mayor of the City of Orlando and two members of the Board of County Commissioners of Orange County, it was established that public need for the project exists. This was corroborated by the executive director of the Authority. The Authority also established that the immediate transportation need for this facility has existed since 1980 and becomes more dire as time goes on. In this regard, the proposed project will provide not only a more efficient but also a safer means of transportation for the public. It was estimated that the controlled access beltway would be at least three times as safe as non-controlled existing facilities. Moreover, a limited access facility produces fewer emissions and therefore total automobile air emissions within the region will be higher if the project is not built.
It was further established that the economic benefits from the project include user cost savings to the public of $208,000 in 1995 and $1.8 million in 2005. In 1995 it is estimated the public will save $24 million in vehicle hours by favoring the project's route over alternate, non-limited-access, already stressed roads. In addition, total road user savings to the public between 1995 and 2005 will amount to some $430 million.
The project is in the public interest in terms of health, safety or welfare when the transportation needs of the area are considered. This finding was not controverted. Any private property taken by the Authority will be compensated at fair market value pursuant to eminent domain provisions. Therefore, adverse effects to property of others are minimal.
Fish and Wildlife
Several environmental studies conducted for the Authority demonstrate that no significant impacts on fish and wildlife in the project area would be caused by the project. There are no threatened or endangered species inhabiting any of the project's five locations. A general field analysis of flora and fauna and a preliminary study of low-level waterlife, insects and arthropods in the project area revealed a proliferation of pollution-tolerant invertebrates in
Lake Telfer. This is indicative of a stressed biotic system. The project will not adversely affect the conservation of fish and wildlife and the construction locations are currently not a significant wildlife habitat. The effect on fish will not be adverse and will probably be positive due to the wetlands-creation portion of the project mitigation plan. The anticipated discharges of treated stormwater from the operating project, as well as from the five-acre stormwater treatment area for runoff to the E-4 Canal, will probably improve the quality of the waters of the area.
In the course of the permit processing, the Authority agreed to adjust the wetlands creation portion of its mitigation plan to preserve an upland sandhill community habitat that contained some species of special concern, as requested by the Florida Game and Freshwater Fish Commission (Commission) and DER. The Authority also responded to Commission and DER concerns about Lake Irma wetland wildlife habitat and moved the road alignment at Location 3 (Trevarthon Road crossing) eastward to avoid an undisturbed marsh habitat.
The project's .88 acres of fill in jurisdictional wetlands will have minimal effect on the conservation of fish and wildlife, including endangered or threatened species or their habitats. Even when considering project impacts to nonjurisdictional areas, the project will have minimal impact on the conservation of fish and wildlife, including endangered or threatened species or their habitats.
Navigation, flow of water, harmful erosion or shoaling.
Petitioners concede that the project will not adversely affect navigation or cause harmful shoaling. No evidence was presented by petitioners on these two criteria nor did petitioners attempt to show adverse effects from the project to the flow of water.
The dominant soils along the proposed route for the project are characterized by rapid permeability and the proposed route is generally low- lying with minimal slope. Runoff from sites during construction is unlikely except during extreme and intense rainfall events. The Authority's stormwater engineers established that in addition to specific requirements of their designs, requirements for erosion control of the Florida Department of Transportation's Standard Specifications and Roadway and Traffic Design Standards would be met during the construction phase. The Authority permit application also provides structural measures and procedures for erosion control for the project in accordance with accepted practices approved by DER.
It is found that the project will not adversely affect navigation, the flow of water or cause harmful erosion or shoaling.
Fishing, Recreational Values, or Marine Productivity.
Petitioners also concede the project will not adversely affect marine productivity. In addition, the National Marine Fisheries Service does not object to issuance of the permit for the project.
The project will not adversely effect fishing, as the construction locations presently have little potential for fishing. Based on dissolved oxygen values, Lake Telfer is generally unsuited for sport-type fishing, with
little potential for improvement in view of the adverse effects upon the lake from the burned bayhead wetland. Likewise, there will not be an adverse effect on recreational value since the construction locations are not presently used for recreation.
Temporary or Permanent Nature of the Project
The permanent nature of the project has been an integral part of the overall consideration of its impacts. The temporary impacts have also been considered in relation to protection of water quality and erosion during construction.
Historical and Archaeological Resources
In order to fully assess the possible impacts of the construction sites on any historical or archaeological sites in the area the Authority commissioned Elizabeth A. Horvath of the University of South Florida to prepare an archaeological and historical survey which was accepted by the Division of Archives, History and Records Management (Division). An August 6, 1985 letter from the Division's state historic preservation officer analyzed the Horvath findings and concluded that the project will have no impact on sites eligible or potentially eligible for listing in the National Register of Historic Places. Consequently, it is found that the project will cause no adverse effects to significant historical or archeological resources.
Relative value of functions performed by areas affected.
Location 1 - The primary function of the E-40 Canal is to convey water. The canal is not providing water quality enhancement functions, and waters of the canal are below Class III standards. The area has been severely impacted by development and is isolated from any marshland that may once have been connected with it. Although some wildlife use the location, the minimal amount of .55 acres of fill will not disturb any significant habitat function at this location.
Location 2 - The project will cause no discernible impact to present functions at the E-4 Canal bridge crossing. The only permanent impact in this area is the pilings that will be placed in the waters of the E-4 Canal to support the bridge structure. The calculation of the acreage for these pilings is de minimis and will not result in any significant loss of fish and wildlife habitat. In fact, the Authority agreed to lengthen the proposed bridge at Location 2 to accommodate future wetland vegetation plantings that are part of the Orange County Little Econ River Study.
Location 3 - Although some perturbation has occurred due to construction of Trevarthon Road and its right-of-way as well as residential development encroaching on the north and south, the Lake Irma system is a relatively undisturbed wooded wetland. Although the system currently attenuates and absorbs stormwater and provides a wildlife habitat, the impact of filling
.33 acres at the Trevarthon Road site is quite small when considering the overall approximate 110-acre Lake Irma wetland system. The Authority satisfactorily addressed DER's concern for this area by relocating the road so as to limit its impact to .33 acres.
Location 4 - DER presently claims no jurisdiction in the Lake Telfer wetland on the project at Location 4. Even if jurisdiction were claimed to result in a loss of up to 11.2 acres of jurisdictional wetland, the current
conditions and functions of this wetland are such that the project's overall impacts on the system would still be minimal. The current condition of the Lake Telfer Wetland is that of a very disturbed system. In 1981 a major fire devastated this area consuming many trees. The fire burned during a prolonged dry season and 12 to 18 inches of very dry peat making up the swamp floor and soil substrate for vegetation was consumed. The system was previously disrupted by some logging activities and used as a trash dump.
Further adverse impacts in the Telfer wetland are presently caused by Orange County's widening of University Boulevard, including the construction of stormwater ponds on the south side of the road planned in conjunction with that widening project.
The Location 4 area north of University Boulevard is a relatively isolated hardwood wetland (mature bayhead), originally a continuation of the burned bayhead of the Lake Telfer wetland which lies to the south. Even though a hydraulic connection exists through a culvert running beneath University Boulevard, these wetlands have become a relatively isolated area. This area is also surrounded by suburban residential development and shows signs of vegetative disruption by feral hogs.
Testimony and evidence showed that the project is designed so that existing ,wetland functions will be maintained in the University Boulevard interchange loops north of University Boulevard as far as practicable. A hydrologic connection will be maintained between the eastern and western loops, and the wet1and contained within the western most loop will be substantially retained. Swale and ditch construction will be minimized in order to promote wetland sheet flow.
The Lake Telfer wetland system as a whole is no longer functioning as viable wooded wetlands. It is unlikely this system would ever naturally become a wooded bayhead wetland again. The effects of the lowering of the wetland floor have been traumatic and hardwood species are unable to adequately seed in. The Lake Telfer burned bayhead wetland is now providing negative water quality functions. The area is loading the lake system with minerals, nutrients and dissolved organic matter, and dissolved oxygen concentrations are very low. These characteristics make heavy metals more soluble and have resulted in Class III water standard violations for heavy metals. These facts undermine the assertion that additional organic and carbon transport carried from the bayhead north of University Boulevard constitute a "positive" function as attested by petitioners' expert. This is especially true when considering the testimony of the Authority's expert that these characteristics will be reduced and the water quality will be improved by the project's stormwater treatment system.
Location 5 - This location, which currently functions as a grassy uplands area, will be converted to a five-acre stormwater treatment facility. It contains no wetlands, and impacts to waters of the state are anticipated to be highly beneficial.
MITIGATION
DER has no formal mitigation rules by which to consider mitigation. Although the agency issued a policy memorandum on the subject on March 25, 1986, the policy therein has not been applied retroactively to projects such as this one. Mitigation measures such as those presented by the Authority are routinely considered on a case-by-case basis.
A mitigation plan was developed by the Authority and made a part of its application for a permit. This plan was developed on the assumption that twelve acres of jurisdictional wetland would be impacted by the project. Although the amount of impacted jurisdictional wetlands was subsequently reduced to .88 acres by the agency's later determination the Authority did not alter its mitigation proposal.
The mitigation plan is set forth in detail in Section E of the revision to the application filed on June 16, 1986. The total dedicated creation and restoration area is approximately forty-eight acres. Of this total acreage, some 12.3 acres will be used to create a wetlands creation area, 12 acres will be used to create a restoration/enhancement area, 19 acres will be dedicated to conservation easements, and 5 acres will be used for stormwater retrofitting of the E-4 canal. It is found the mitigation plan adequately and reasonably mitigates any adverse effects which may be caused by the project.
STANDING
Various persons testified for the standing of the organizations in the proceeding. In addition, Cox testified on his own behalf. Gay did not appear at final hearing. Through testimony of representatives of the organizations, it was established each held the legal status of a non-profit corporation except the Sierra Club. In that case, a representative (Ronald Lancaster) stated the national Sierra Club is a non-profit "organization", while the Florida Chapter of the Sierra Club is an affiliate of the national organization and a Florida "association". No other testimony was offered to demonstrate the Sierra Club's citizenship. All representatives were authorized to appear and testify on behalf of their respective organizations. Through testimony of witness Lee, the Florida Audubon Society's purpose was stated to be the protection of "the environment, natural resources, wetlands among those resources." Lee identified the Societies' concerns to be the impact of the project upon the wetlands, the adequacy of the mitigation plan, and their intention to use this case as a "test case" to see how DER enforced the new Act. Representatives of the Coalition and Sierra Club gave no testimony concerning the purpose or nature of their organizations, or what their concerns in the case were. They merely answered "yes" to their counsel's question of whether their organizations had filed a petition in the cases alleging that the project would have the effect of impairing, polluting or otherwise injuring the air, water or other natural resources of the state. There was no testimony by any organization as to whether any of its members lived in or near the project area, or if they used the affected wetlands in any manner. Cox corroborated the fact that he filed a verified petition in this cause, that he owns property on Lake Telfer, and sometimes fishes on that lake. However, he failed to express any specific environmental concerns over the project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).
Initially, the question of petitioners' standing to participate in these proceedings must be resolved. It is noted that even petitioners concede that James L. Gay has no standing, and accordingly he is dismissed as a party. Remaining at issue is the status of Florida Audubon Society, Orange Audubon Society, University Boulevard Coalition, Inc., Florida Sierra Club and Orville
E. Cox.
In their post-hearing filing, petitioners suggest that prior "participation in the passage of the Henderson Wetlands Act and numerous other administrative proceedings" alone substantiates an association's right to request a 120.57(1) hearing. This contention is rejected since each case must stand or fall on its own merits based upon a potential party's pleadings and evidence. Therefore, an examination of the record and applicable law is necessary.
It is apodictic that to initiate a 120.57(1) proceeding, a person must demonstrate that his substantial interests are affected by the agency action. However, once a 120.57(1) permit proceeding is underway, the less stringent requirements of Subsection 403.412(5) apply, and grant standing to intervene in an on-going case by "a citizen of the state . . filing . . . a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state." Having pled sufficient facts to legally justify the initiation of a 120.57(1) proceeding, or intervention under Subsection 403.412(5) in an on-going case, a party must then establish at hearing an adequate record foundation to prove up its allegations (and standing) under the relevant statute. 2/ By its own terms, Subsection 403.412(5) suggests that a lesser quantum of proof is required to demonstrate standing than is needed under Subsection 120.57(1). Even so, a party is not relieved of certain minimum evidentiary requirements. More specifically, the statute contemplates, as do notions of fair play, that a corporate intervenor, at a minimum, show: (a) that it is a citizen of the state, 3/ (b) the general scope of interest and activity of intervenor, (c) the interests which it seeks to protect in the proceeding, and (d) how those interests are germane to the intervenor's purpose and within its general scope of interest and activity. In addition, one must show that the witness has been authorized to appear and testify on behalf of his organization. Finally, the intervenor must show that at least some of its members live in or near the project area, or use and enjoy in some manner the wetlands or other areas that will be impacted by the project. 4/ The record will accordingly be analyzed under these broad guidelines to determine if intervenors pass muster.
The various organizations have filed undated verified pleadings 5/ in which all necessary allegations under 403.412(5) were made. At hearing, a representative (although not necessarily the person who verified the petition) of each organization appeared and testified. Except for the Florida Chapter of the Sierra Club (which was described by its witness as being a non-profit "organization"), all proved citizenship in the State of Florida by having the
legal status of non-profit corporations. 6/ Only the Florida and Orange County Audubon Societies presented any testimony concerning the nature and purpose of their organizations, and their general concerns, and even those two organizations failed to show whether any members lived in or near the site of the proposed project, or used or enjoyed the affected wetlands. This being so, it is concluded that none of the intervening organizations have established a minimum record foundation at hearing to demonstrate standing under the relaxed standards of Subsection 403.412(5). They are accordingly dismissed as parties to these proceedings. Similarly, using the more stringent test under Subsection 120.57(1), there is insufficient evidence of record to support the allegations in the petitions requesting 120.57(1) hearings filed by petitioners in Case Nos. 84-3691 and 86-1045, or to otherwise demonstrate that their substantial interests are affected. This being so, the petitions for hearings in Case Nos. 84-3691 and Case No. 86-1045 must be dismissed. As to intervenor Cox, he too established citizenship, and that he owns property on Lake Telfer and filed a verified petition in this cause. But he failed to identify any potential
injury, or other environmental concern with the project. 7/ It is accordingly concluded that he lacks standing to participate, and should be dismissed as a party.
Although the above conclusions leave the proceeding in the posture of being uncontested, the undersigned will nonetheless deal with the pertinent objections raised by petitioners in their post-hearing filing, and other relevant requirements that must be met by applicant to be issued the requested permits.
Petitioners assert in Case No. 84-4122 that both the 1984 and 1986 agency jurisdictional determinations were invalid. In this regard, the burden of proving the propriety or validity of such determinations rests upon the agency and applicant. Although applicant contends that petitioners bear the burden of proving the determinations incorrect, Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981) is controlling and properly places that burden on the proponents of the agency action. The evidence shall be reviewed in that context.
Rule 17-4.022, Florida Administrative Code, sets forth the procedure for making agency jurisdictional determinations. Section (8) is particularly relevant and provides the following requirements:
(8) The landward extent of waters of the state shall be determined using the vegetative index adopted June 10, 1975, as amended
March 11, 1981, for all complete applications filed with the department before October 1, 1984. For all other areas where the department made a determination of the landward
extent of the waters of the state using the vegetative index adopted June 10, 1975, as amended March 11, 1981, before October 1, 1984, the department shall, within 90 days of
a request therefore, validate the determination if:
The determination is graphically displayed on a map, drawing, or aerial photograph,
or written in the form of a narrative description sufficient to identify the areas in question; and
The determination was based on a site verification made by the department; and
The document purporting to be the determination is signed by the employee of the department in the course of his official duties;
the document purporting to be a site verified written determination shall be submitted by certified mail within six months of October 1, 1984 to the department for validation.
(Emphasis added)
Therefore, if a jurisdictional determination is performed before October 1, 1984 it may be grandfathered in using "old list" vegetation indicies. This jurisdictional determination can then be "validated" by the agency if such a request is made by the applicant no later than April 1, 1985 assuming the three criteria in paragraphs (a)-(c) are also met.
With respect to the September 28, 1984 determination, the evidence reveals that (a) the determination was graphically displayed on an aerial photograph, (b) it was based on a DER site verification, (c) it was signed by an agency employee, and (d) it was submitted by certified mail within the deadline. Petitioners argue that even if the above criteria were met, the jurisdictional was nonetheless invalid because it failed to utilize the "old list" of vegetation to determine jurisdiction. However, the evidence suggests otherwise for the DER staff did consider the "old list" of vegetation in arriving at its determination, and found it terminated at the borders of Lake Telfer. Although the agency initially improperly based jurisdiction on the current water level of the lake, this did not prohibit the later validation of the jurisdictional determination, or contravene the requirements of Rule 17-4.022(8). Through an adequate record foundation, DER established that it interprets that rule to require only the timely submission of the appropriate documents in paragraphs (a)-(d). It was further established that an inaccurate underlying determination does not prohibit a later validation. This interpretation was not controverted, constitutes a reasonable construction of the rule, and accordingly should be given deference. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986). Therefore, it is concluded that all provisions of Rule 17-4.022(8) were met.
The departmental review of grandfathered permits is outlined in Rule 17-12.120(2), Florida Administrative Code, and applies to all applications that were properly validated under Rule 17-4.022(8). The former rule, which was amended effective May 15, 1986, reads as follows:
* (2) The Department's dredge and fill permitting jurisdiction for projects having
received jurisdictional determinations in accordance with Section 17-4.022(8), F.A.C., shall be [[determined using the vegetative index and other jurisdictional criteria as they existed on January 24, 1984, and as set forth in Sections 17-4.02(17), 17-4.28 and
17-4.29, F.A.C.]] <<the area previously determined to be within the landward extent of
waters of the state and identified in the
letter of validation issued by the Department.>>
Permit applications for such projects shall be reviewed, evaluated and issued or
denied pursuant to Part I or Part II of this chapter.
(Underscored language reflects amendments which became effective on May 15, 1986, while lined-out portions reflect repealed language.)
* Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]].
Because Rule 17-4.022(8) was satisfied, it was appropriate to also apply Rule 17-12.120(2), as it existed prior to the May 15, 1986 amendment, to applicant's
project. By permissible interpretation based upon an adequate record foundation herein, the agency construes the rule to allow it to perform a second jurisdictional using pre-October 1, 1984 criteria. Reedy Creek, 486 So.2d at 648. This was accomplished on May 28, 1986 after applicant requested the agency to do so on May 5, 1986. Although petitioners contend the jurisdictional determination was invalid since it was not performed until after the new rule became effective, the request was made before May 15, 1986 and was therefore timely to invoke the provisions of the old rule. Accordingly, it is concluded the agency's May 28, 1986 jurisdictional determination was valid.
Since the project was properly grandfathered, it was subject to the requirements of Rule 17-4.28(2), Florida Administrative Code. That rule makes clear that the vegetative index is the primary basis for establishing a jurisdictional boundary. Based upon the "old list" of vegetation, the preponderance of evidence supports a conclusion that DER jurisdiction at location 4 is limited to the open waters of Lake Telfer, and does not extend into the vegetated wetlands lying north of the lake. Even if the "new list" had been used, the same result would be reached.
The evidence demonstrates that the applicant has given reasonable assurances that the immediate and long-term impacts of the project will not result in the violation of water quality standards under Chapters 17-3 and 17- 12, Florida Administrative Code. Likewise, the stormwater discharge standards in Chapter 17-25, Florida Administrative Code, have also been met.
The evidence further demonstrates that the project is not contrary to the public interest as required by Subsection 403.918(2), Florida Statutes (1985). In reaching this conclusion, it was necessary to consider applicant's mitigation plan which is designed to offset any adverse effects that may be caused by the project. When the two are considered, the project clearly conforms with the statutory requirement.
The project will involve the filling of .88 acres of jurisdictional wetlands at locations 1 and 3. Applicant now contends that no mitigation is required, since its plan was initially offered under the assumption that twelve acres of jurisdictional wetland would be impacted. In its proposed recommended order, the agency does not squarely address the issue but merely characterizes the mitigation plan as a "bonus" and "benefit" for the public.
Since the plan is undisputedly tied to the construction activities and associated impact upon the affected areas, and was submitted in "all or nothing" form, it is concluded that the mitigation plan is reasonable, in the public interest, and should be accepted.
It is concluded that the preponderance of evidence supports the issuance of the requested permits.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the requested dredge and fill permit and stormwater
permits be issued to applicant to construct the northern extension of the
Eastern Beltway of the Orlando-Orange County Expressway System in Orange County, Florida.
DONE and ORDERED this 17th day of September, 1986, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986.
ENDNOTES
1/ The Act is codified in Sections 403.91-403.938, Florida Statutes (1985).
2/ In other words, pleadings and proof are two different matters, and a legally sufficient pleading does not satisfy the need for proof at hearing.
3/ It is undisputed that non-profit corporations are considered citizens of the state for purposes of exercising rights granted to citizens under Chapter 403.
See, Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64, 68 (Fla. 1980).
4/ This minimal showing, which is less than that required under a Section 120.57(1) proceeding, can be easily satisfied by counsel in a matter of minutes with a few properly framed questions. This assumes, of course, that the intervenor has a legitimate interest in the proceeding and valid environmental concerns. If it does not, it should not be a participant.
5/ The petitions requesting intervention were dated, but the verifications were not. A failure to date the verifications may give rise to questions concerning their legal sufficiency. For example, the University Boulevard Coalition's verification in Case No. 84-4122 was served by counsel on December 15, 1955.
However, the notary public's seal expired on November 26, 1985. Whether the verification was executed prior to November 26 is not known. A proper verification is crucial to intervention under Subsection 403.412(5).
6/ The undersigned cannot assume an organization is a corporation, and that the witness intended to convey that meaning to his answer. This is especially true since all other representatives specifically identified their organizations as being non-profit corporations.
7/ Cox flirted with the requisite showing by testifying that he sometimes fished on Lake Telfer. However, he switched subjects at that point in his testimony without identifying any anticipated adverse effect from the project.
COPIES FURNISHED:
Victoria J. Tschinkel, Secretary Dept. of Environmental Regulation Twin Towers Office Building
2600 Blairstone Road
Tallahassee, Florida 32301-8241
David Gluckman, Esquire Route 5, Box 3965
Tallahassee, Florida 32301
Frank E. Matthews, Esquire Kathleen L. Blizzard, Esquire Post Office Box 6526 Tallahassee, Florida 32314
Vivian Feist Garfein, Esquire Deborah A. Getzoff, Esquire Twin Towers Office Building 2600 Blairstone Road
Tallahassee, Florida 32301-8241
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
FLORIDA AUDUBON SOCIETY, )
ORANGE AUDUBON SOCIETY, ) UNIVERSITY BOULEVARD COALITION, ) FLORIDA CHAPTER OF TIE SIERRA ) CLUB, JAMES L. GAY and )
ORVILLE E. COX, )
)
Petitioners, )
)
vs. ) DOAH Case No. 84-3691
) OGC Case No. 84-0750
DEPARTMENT OF ENVIRONMENTAL )
REGULATION, and THE ORLANDO )
ORANGE COUNTY EXPRESSWAY )
AUTHORITY, )
)
Respondents. )
) ORLANDO-ORANGE COUNTY )
EXPRESSWAY AUTHORITY, )
)
Petitioner, )
)
vs. ) DOAH Case No. 84-4122
) OGC Case No. 84-0763
DEPARTMENT OF ENVIRONMENTAL )
REGULATION, FLORIDA CHAPTER )
OF THE SIERRA CLUB, FLORIDA )
AUDUBON SOCIETY, ORANGE )
AUDUBON SOCIETY, UNIVERSITY ) BOULEVARD COALITION, JAMES L. ) GAY and ORVILLE E. COX, )
)
Respondents. )
) FLORIDA AUDUBON SOCIETY, ) FLORIDA CHAPTER OF THE SIERRA ) CLUB, UNIVERSITY BOULEVARD )
COALITION, JAMES L. GAY and )
ORVILLE E. COX, )
)
Petitioners, )
)
vs. ) DOAH Case No. 86-1045
) OGC Case No. 86-0141
DEPARTMENT OF ENVIRONMENTAL ) REGULATION and ORLANDO-ORANGE ) COUNTY EXPRESSWAY AUTHORITY, )
)
Respondents. )
)
FINAL ORDER
On September 17, 1986, the Division of Administrative Hearing's Hearing Officer who conducted a Section 120.57(1), Florida Statutes, hearing in the above-styled case submitted his Recommended Order to me. A copy of the Recommended Order is attached as Exhibit A. The Orlando-Orange County Expressway Authority (Authority) and the Florida Audubon Society and associated petitioners (Audubon petitioners 1/) filed timely exceptions to the Recommended Order, copies of which are attached as Exhibit B and C, respectively. The Department and the Authority both timely filed responses to those exceptions, copies of which are attached as Exhibits D and E. The Recommended Order thereafter came before me for final agency action.
RULINGS ON EXCEPTIONS
The parties' exceptions and responses generally relate to the following issues:
Whether the Audubon petitioners in Case Nos. 84-3691 and 86-1045 have standing under Section 403.412(5), Florida Statutes (Audubon petitioners Exceptions, paragraph 1; Authority's response, paragraphs 2 through 4; DER response);
Whether the hearing officer properly applied the rules regarding jurisdictional determinations and "grandfathering" (Audubon petitioners Exceptions, paragraphs 2 through 4; Authority's response, paragraphs 5 through 8);
Whether mitigation is required as a condition of DER's proposed permit. (Authority's Exceptions, paragraphs 1 through 9); and
Whether the Audubon petitioners' exceptions comply with the requirements of FAC Rule 17-103.200 (Authority's Response and Motion to Strike).
For purposes of clarity, I will address each party's exceptions in the context of the issue to which they pertain.
STANDING UNDER SECTION 403.412(5), FLORIDA STATUTES
The Audubon petitioners claim standing in this proceeding pursuant to the provisions of Section 403.412(5), Florida Statutes, which provides:
(5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
The hearing officer found that the Audubon petitioners had filed verified pleadings in which all necessary allegations under Section 403.412(S) were made and that all petitioners but the Florida Chapter of the Sierra Club proved citizenship. The hearing officer determined that such showings were insufficient to confer standing under the statute, however, and held that a corporate intervenor must at a minimum additionally show:
its general scope of interest and activity;
the interests which it seeks to protect in the proceeding;
how the interests it seeks to protect are germane to its scope of interest and activity; and
that some of its members live in or near the project area, or use and enjoy in some manner the areas to be impacted by the proposed project.
Additionally, the hearing officer held that individual petitioners must identify some potential injury or other environmental concern to have standing under Section 403.412(5), Florida Statutes.
The hearing officer erred in his addition of requirements for the establishment of standing that do not appear in the statute. A citizen of
Florida has standing to initiate a proceeding under Section 120.57, Florida Statutes, upon filing of a verified pleading-that complies with the requirements of Section 403.412(5), Florida Statutes. Booker Creek Preservation, Inc. v.
Mobil Chemical Company, 481 So.2d 10 (Fla. 1st DCA 1986); Manasota-88, Inc. v. Department of Environmental Regulation, 441 So.2d 1109 (Fla. 1st DCA 1983).
The record indicates that the Audubon petitioners all filed verified pleadings which made the allegations required by Section 403.412(5), Florida Statutes, and, with the exception of the Florida Chapter of the Sierra Club and James Gay, they all proved that they were citizens of the State. Therefore, all Audubon petitioners except the Florida Chapter of the Sierra Club and James Gay have standing in this proceeding. By holding that the Florida Chapter of the Sierra Club does not have standing, I do not conclude that it is not a citizen entitled to use Section 403.412, Florida Statutes, but only that there is not a sufficient record foundation to support a finding of citizenship in this proceeding. Cf. Environmental Confederation of Southwest Florida v. Cape Cave Corp. and DER, 8 FALR 317 (Final Order entered October 16, 1985) (sufficient foundation laid to support a finding of citizenship for unincorporated association).
APPLICATION OF FAC RULES 17-4.022(8) and 17-12.120 ("GRANDFATHERING" AND JURISDICTIONAL DETERMINATIONS)
Florida Administrative Code Rule 17-4.022(8) is the so-called "grandfather" provision which allows validation of jurisdictional determinations made by DER prior to October 1, 1984, if certain conditions are net. The purpose of the rule is to allow persons who had jurisdictional determinations made by DER prior to October 1, 1984, using "old list" (pre-October 1, 1984) vegetation indices to have jurisdiction over their proposed project determined using the "old list" vegetation. The rule provides:
The landward extent of waters of the state shall be determined using the vegetative index adopted
June 10, 1975, as amended
March 11, 1981, for all complete applications filed with the department before October 1, 1984. For all other areas where the department made a determination of the landward extent of the waters of the state using the vegetative index adopted June 10, 1975, as amended
March 11, 1981, before
October 1, 1984, the department shall, within 90 days of a request therefore, validate the determination if:
The determination is graphically displayed on a map, drawing, or
aerial photograph, or written in the form of a narrative description sufficient to identify the areas in question; and
The determination was based on a site verification made by the
department; and
The document purporting to be the determination is signed by an employee of the department in the course of his official duties; and
The document purporting to be a site verified written determination shall be submitted by certified mail within six months of October 1, 1984 to the department for validation.
The hearing officer specifically found that the criteria established in subparagraphs (a) through (d) were satisfied by the Authority, and therefore DER's September 28, 1984, jurisdictional determination could be properly validated in accordance with the rule.
The Audubon petitioners argue that the September 28th jurisdictional could not be validated because jurisdiction was allegedly based only on water levels in the Lake Telfer area instead of on the extent of jurisdictional vegetation as required by Florida Administrative Code Rule 17-4.022(B). This argument is contradicted, however, by the hearing officer's finding that the DER jurisdictional was based in part on an-evaluation of listed vegetation, and therefore net the requirement of Rule 17-4.022(8) that the pre-October 1, 1984 jurisdictional be made using the vegetative index. Although the jurisdictional determination was later found to have been improperly made because factors other than vegetation were also considered, I conclude that validation does not depend on the correctness of the jurisdictional. (The correctness of the jurisdictional nay, of course, be an issue in a subsequent permitting proceeding such as this.) Because the hearing officer explicitly found that the Authority met the requirements of Florida Administrative Code Rule 17-4.022(8), I hold that the September 28, 1984 jurisdictional can be properly validated in accordance with the rule. The plain language and intent of the rule support this conclusion.
The Audubon petitioners also challenge the hearing officer's application of Florida Administrative Code Rule 17-12.120(2), which governs DER review of permit applications where a jurisdictional determination has been validated in accordance with Florida Administrative Code Rule 17-4.022(8). The Audubon petitioners argue that, contrary to the provisions of the rule, DER improperly conducted a second jurisdictional determination for the area at issue in this case. For the reasons set forth below, I reject the Audubon petitioners' exception and conclude that Rule 17-12.120(2) was properly interpreted and applied.
Before May 15, 1986, Florida Administrative Code Rule 17-12.120 stated:
(2) The Department's dredge and fill permitting jurisdiction for projects having received jurisdictional determinations in accordance with Section 17-4.022(8), F.A.C., shall be determined using the vegetative index and other jurisdictional criteria as they existed on
January 24, 1984, and as set forth in Sections 17-4.02(17), 17-4.28 and 17-4.29, F.A.C. Permit applications
for such projects shall be reviewed, evaluated and issued or denied pursuant to Part I or Part II of this chapter.
Effective May 15, 1986, Rule 17-12.120 was amended to read:
(2) The Department's dredge and fill permitting jurisdiction for projects having received jurisdictional determinations in accordance with Section 17-4.022(B),
F.A.C., shall be determined using the vegetative index and other jurisdictional criteria as they existed on January 24, 1984, and as set forth in Section 17- 4.02(17), 17-4.28 and 17-4.29, F.A.C. the
area previously determined to be within the landward extent of waters of the state and identified in the letter
of validation issued by the Department. Permit applications for such projects shall be reviewed, evaluated and issued or denied pursuant to Part I or Part II of this chapter.
(Underscored language reflects amendments which became effective on May 15, 1986, while lined-out portions reflect repealed language.) DER has consistently interpreted the rule prior to amendment to allow for a second jurisdictional determination to be made using pre-October 1, 1984 criteria when a previous jurisdictional had been properly validated, and such an interpretation comports with the plain language of the rule. The very reason for the May 15, 1986, amendment to the rule was to provide that the grandfathered jurisdictional determination would apply to a project, thus eliminating the need to conduct a second jurisdictional review. Accordingly, I conclude that DER's May 28, 1986, jurisdictional determination using pre-October l, 1984, criteria was properly conducted in accordance with the provisions of Florida Administrative Code Rule 17-12.120 as it existed before its May 15, 1986, amendment.
The Audubon petitioners urge further that the hearing officer erred in failing to conclude that Section 403.913, Florida Statutes, precludes all "grandfathering" except for "completed projects and other selected areas not germaine [sic] to this case. I do not rule on this exception since neither I nor the hearing officer need to reach this issue in deciding this case. DER's "grandfather" rule, Florida Administrative Code Rule 17-4.022(B), expressly provides for the jurisdictional grandfathering of which the Authority availed itself, and the hearing officer correctly relied upon that rule in concluding that the grandfathering was appropriate. The validity of that rule was not at issue in this proceeding, and so I do not have to interpret the statute to conclude that the grandfathering was proper. I would point out, however, that the Legislature explicitly ratified Rule 17-4.022, including the grandfather provision. Section 403.8171, Fla. Stat. (1985)
Although the Authority prevailed on the jurisdictional and "grandfathering" issues, it argues that the hearing officer erred in assigning to DER and the Authority the burden of proving the validity of DER's jurisdictional
determinations. I conclude that the hearing officer's determination was proper and that DER and the Authority, as proponents of the agency action, had the ultimate burden of persuasion on this issue. Fla. Dept. of Transportation v.
J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
MITIGATION
The Authority developed and submitted as part of its application a mitigation plan to offset any adverse impacts which may be caused by its proposed project. In its exceptions, the Authority reiterates its intent to carry out the proposed mitigation. The Authority requests, however, that the mitigation be voluntary and not a condition of any permit which nay be issued.
As the hearing officer found, the proposed mitigation presumed that 12.15 acres of jurisdictional waters would be impacted by the project. However, DER later determined that only .88 acres would be impacted. The Authority therefore argues that its original mitigation proposal is unnecessary to meet the public interest criteria of Section 4Q3.9lB(2)(a), Florida Statutes, given the small amount of jurisdictional acreage now involved in the project.
While there is some support in the record for the Authority's contention that its original mitigation proposal is now unnecessary, I cannot accept its conclusion that mitigation no longer needs to be a permit condition. The hearing officer found that the mitigation proposal was a part of the Authority's application and that it had not been modified or withdrawn even after DER's redetermination of jurisdiction. He further found that the mitigation proposed "adequately and reasonably mitigates any adverse effects which may be caused by the project." Based on his findings, he concluded that the project met the public interest test of Section 403.91B(2), Florida Statutes, only when considering the mitigation plan in conjunction with the work proposed. Since the conclusion that the project was not contrary to the public interest was inextricably bound with consideration of the Authority's proposed mitigation, I cannot disturb this conclusion and I reject the Authority's exception.
RULINGS ON MOTION TO STRIKE AND REQUEST FOR ORAL ARGUMENT
The Authority has moved to strike the Audubon petitioners' Exceptions Nos.
1, 3, 4, and 5 for petitioners' failure to comply with the requirements of Florida Administrative Code Rule 17-103.200(1), which provides:
Exceptions shall state, with particularity, the basis for asserting that the hearing officer erred in entering or omitting specific findings of fact, conclusions of law, or a recommendation.
The Authority is correct in its argument that Exceptions Nos. 3, 4, and 5 do not comply with the requirements of the governing rule and the exceptions are therefore stricken. Without citations to the record (in the case of findings of fact) or legal argument in support of the exceptions (in the case of conclusions of law), it is impossible for me to make a reasoned evaluation of the merit of a party's exceptions. Although they may not be very persuasive, even exceptions with a minimum of argument (such as petitioners' exception number 1) will be accepted. Exceptions that do not comply with the rule will be rejected.
The Audubon petitioners have requested oral argument pursuant to Florida Administrative Code Rule 17-103.20D. I find oral argument unnecessary in this case, however, and so petitioners' request is denied.
ORDER
Having considered the Recommended Order, the parties' exceptions and responses, and the testimony and evidence adduced at hearing, it is
ORDERED:
The hearing officer's findings of fact, conclusions of law, and recommendation are adopted in their entirety except as modified or rejected by my rulings on exceptions.
Within thirty days, the department shall issue to the Authority the dredge and fill and stormwater permits needed to construct the northern extension of the Eastern Beltway of the Orlando-Orange County Expressway System in Orange County.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.6B, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rule of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; 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 of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.
DONE AND ORDERED this 31st day of October, 1986 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FOOTNOTE
1/ I refer to the Florida Audubon Society, Orange Audubon Society, The Florida Chapter Of The Sierra Club, The University Boulevard Coalition, James L. Gay, and Orville Cox as the "Audubon petitioners" only for the sake of convenience; I recognize that these petitioners do not necessarily have a unity of interest despite being represented by the same attorney.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to DAVID GLUCKMAN, ESQUIRE, GLUCKMAN AND GLUCKMAN, Route
5, Box 3965, Tallahassee, Florida 32301; CARON BALKANY, ESQUIRE, 1540 Northwest 15th Street Road, Miami, Florida 33125; FRANK MATTHEWS, ESQUIRE, and KATHLEEN
L. BLIZZARD, ESQUIRE, HOPPING BOYD GREEN & SAMS, Post Office Box 6526, Tallahassee, Florida 32314 and by Hand Delivery to VIVIAN F. GARFEIN, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; on this 3rd day of November, 1986.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 455-9730
| Issue Date | Proceedings |
|---|---|
| Sep. 17, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 31, 1986 | Agency Final Order | |
| Sep. 17, 1986 | Recommended Order | Dredge and fill permits for highway project approved. |
