STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANASOTA-88, INC. )

)

Petitioner, )

)

vs. ) Case No. 85-2904

) WILBUR BOYD CORPORATION and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 16, 17, and 31, 1986 and on

August 1, 1986, in Tallahassee, Florida, and July 18, 1986 in Bradenton, Florida. The basic issue for determination in this proceeding is whether respondent Wilbur Boyd Corporation is entitled to a dredge and fill permit and storm water plan for its project known as Riverbay, located in Manatee County.

APPEARANCES

For Petitioner Thomas W. Reese, Esquire Manasota-88, Inc.: 123 Eighth Street, North

St. Petersburg, Florida 33701

For Respondent Ross A. McVoy, Esquire Wilbur Boyd James A. Jurgens, Esquire Corporation: Parker, Skelding, Costigan

McVoy & Labasky Post Office Box 669

Tallahassee, Florida 32302

For Respondent C. Anthony Cleveland, Esquire Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32399-2400

INTRODUCTION

The Department of Environmental Regulation (DER) gave notice

on August 6, 1985, of its intent to issue a dredge and fill permit to the Wilbur Boyd Corporation (Boyd), and Manasota-88, Inc. (Manasota) timely required a hearing pursuant to Section 120.57, Florida Statutes, and requested to intervene in the licensing process pursuant to Section 403.412(5), Florida Statutes. On April 22, 1986, DER gave supplemental notice of its intent to issue a dredge and fill permit to Boyd due to changes in the original jurisdictional determination and limited modifications to the storm water plan. By supplemental petition filed on May 6, 1986, Manasota renewed its request for a formal hearing and its request to intervene in the licensing process.

During the hearing, the respondent Boyd presented the testimony of Dr. Thomas Hudson Patton, accepted as an expert in the fields of geology, geologic interpretation of soils and sediments, paleo-environmental interpretation of soils and sediments, and geologic photointerpretation; William D. Cowherd, accepted as an expert in the identification of soils and soil profiles; Oliver Charles Swallows, Jr., a registered professional engineer, accepted as an expert in surface water management planning and hydraulic engineering; Dr. Luther Halloway, accepted as an expert in the fields of botany, plant ecology, pesticide applications and effects of saltwater and water levels on plants, wetland soils, and biology; W. Ross McWilliams, accepted as an expert in the fields of biology, marine biology, water quality, restoration and reclamation and administration of DER dredge and fill rules and procedures; Dr. John B. Morrill, accepted as an expert in the fields of biology, marine biology, botany and coastal ecology; Robert A. Lyman, accepted as an expert in the field of agricultural agronomy and the relation between agronomy and soils; Laura A. Mercer, a registered land surveyor, accepted as an expert in the field of surveying with special expertise in mean high water line surveying; Steve Shroyer, a registered professional engineer; and Wayne Davis, a general contractor.

Boyd Exhibits 1 through 11 were received into evidence, as were

Joint Exhibits 1 through 3.

Testifying on behalf of the DER were Dr. Richard D. Garrity, District Manager of the DER's Southwest District Office; Robert

1. Stetler, District Dredge and Fill Supervisor in the Southwest District of DER; George T. Baragona, accepted as an expert in hydraulics, hydrology, hydraulic engineering, DER jurisdictional hydraulics and stormwater hydraulics; Maureen Powers, accepted as an expert in the fields of biology and botany, particularly as related to DER jurisdictional determinations; Suzanne F. Walker, accepted as an expert with regard to rules, policies and DER practice with respect to jurisdictional determinations in permitting, specifically dredge and fill permitting; William Kutash, accepted as an expert in biology, with a special expertise in wetland biology, mitigation of wetlands, and water

   quality impacts in waters of the state; and C. Anthony Cleveland, counsel for the DER. DER's Exhibits 1 through 6 were received into evidence.

   
   

   Petitioner Manasota offered the testimony of Stephen J. Fox, former Director of the DER's Division of Environmental Permitting; Eric Livingston, Environmental Administrator of the DER's Non-Point Source Management Section; Thomas Boyd Larkin, accepted as an expert in the fields of marine biology and water quality with limitation; Richard Grant Gilmore, Jr., accepted as an expert in the fields of fisheries ecology and marine fisheries habitat as that may include salt marshes; Wayne Davis; Maureen Powers; Allan F. Hooker, accepted as an expert in wetland identification for jurisdictional purposes; John B. Morrill; Wilbur Boyd; William Cowherd; Allen Burdette; and Joseph Carroll, accepted as an expert in fish and wildlife habitat and management. Manasota's Exhibits 1, 2, and 4 through 8 were received into evidence.

   
   

   Roy E. Parker, Jr.; Richard Breeze; Mary Shepard; Betty Banks; and Barbara Talburtt testified as members of the general public.

   
   

   Subsequent to the hearing, each party submitted proposed findings of fact and and proposed conclusions of law. The parties' proposed factual findings have been carefully considered and, except as noted in the Appendix hereto, they have been accepted and/or incorporated herein.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. The 626-acre site of the proposed Riverbay development is currently undeveloped land located in Manatee County in the western portion of the City of Bradenton. Specifically, the property lies in Sections 22, 24, and 26. Township 34 South, Range 16 East, Manatee County. The site is owned entirely by Boyd, with the exception of the northern portion for which Boyd has a valid option to purchase. Tampa Bay lies to the north of the site and Perico Bayou lies to the west. Both are natural Class III water bodies.

      
      

   2. Boyd proposes to develop approximately 325 acres of the site primarily as residential, with an 18-hole golf course and recreational facilities, a commercial/professional area, lakes and attendant streets. The remainder of the site, approximately

      300 acres, will be retained as a natural mangrove preserve pursuant to a conservation easement to be executed by Boyd upon

      receipt of the permit sought in these proceedings. The proposed project has been approved by Manatee County as a planned development residential district with a maximum total number of units not to exceed 957.

      
      

   3. The Riverbay site has been disturbed by human activity and has been subject to numerous alterations, including extensive mosquito control ditching, dirt roads, borrow pits and a perimeter dike with culverts and flapgates. The government- approved mosquito control ditches resulted in overdrainage of freshwater from adjacent uplands and allowed the incursion of saltwater into the uplands. In order to facilitate and enhance agricultural utilization of the site, and to protect the land from unusually high waters from the Bay, the perimeter dike was constructed with culverts and flapgates in the early 1970's.

      This dike and other internal drainage systems were designed to reduced interstitial soil salinity so that the land could be utilized for agricultural purposes.

      
      

   4. The primary site of concern in this proceeding is a sandy area located south of the northern mangrove area and separated from that area by the perimeter dike. Prior to the construction of that dike, the area was inundated by high tides. Since construction of the dike, inundation of the sandy area by marine waters has been limited to unusual storm surges that overtopped the dike or to those occasions when the flapgates required maintenance or adjustment. Over the years following the dike construction, the sandy area has been intermittently planted with grasses, mowed, disked and, when agricultural activities were temporarily reduced in that area, overtaken with some exotic vegetation and other weedy species. The salt tolerant vegetation in the sandy area is currently patchily distributed, and the area has basically little or no productivity in its present state. This is primarily due to the lack of tidal inundation and tidal exchange, which renders the sandy area minimally valuable as habitat for either terrestrial or aquatic organisms.

      
      

   5. Functioning salt marsh flats, also referred to as salt pans, salterns, salt barrens of salt flat wetlands, constitute an integral part of the life cycles of some fishes, such as snook, mullet and ladyfish. Juvenile fish rely upon these areas for food and protection during this early period of development. High, shallow salt marsh areas are also utilized for feeding purposes by wading birds and shore birds, such as the great egret, white ibis, tricolor heron, green heron and wood stork. While the salt fish flat area on the Boyd site could have value for fish and wildlife if it were returned to tidal influence, its is not currently a productive area from wither a fisheries or wildlife standpoint. Fiddler crab burrows were observed on the site, but these were found mainly around the ditches or existing

      culverts. The existing site is not conducive in its present state to the feeding, nesting or resting or rare, threatened or endangered species.

      
      

   6. The original DER jurisdictional determination was performed on the Riverbay site in May of 1983, and resulted in an inclusion of approximately 46 acres, some 35 or which were situated in the sandy area in the northern part of the property. This determination was validated in May of 1985. In the Spring of 1984, Boyd entered into discussions with the DER prior to filing its dredge and fill permit application, and a mutually acceptable site plan and mitigation package was developed. Boyd then submitted its application in February of 1985. After a hearing was requested, DER revisited its prior jurisdictional determination and concluded that it was in need of revision. Utilizing the jurisdictional criteria which existed prior to October 1, 1984, DER reduced the extent of its jurisdictional determination by including only about 16.5 acres of the sandy area, and again noticed its intent to issue the requested permit. At the time DER performed its new jurisdictional, it was its policy to utilize the pre-Henderson vegetation listing to determine jurisdictional wetlands when a grandfathered applicant with a validated jurisdictional line timely requested a reevaluation of that line. The mitigation plan originally proposed by Boyd was not altered as a result of the reduction of impacted jurisdictional acreage to 16.5 acres.

   7. The project as proposed by Boyd includes the filling of

      16.5 acres of jurisdictional wetlands located in the sandy area discussed above. In mitigation, Boyd proposes to create approximately 17 acres of wetlands from natural uplands located adjacent to undisturbed wetlands in the western portion of the property. Of these 17 acres, 1 1/2 to 5 acres are proposed for a saltern of salt pan habitat. The creation of a salt pan is experimental, but several experts attested to a high probability of success once proper elevations for vegetative plantings are determined. The remainder of the 17 acres of wetlands creation will be graded to the proper elevations, allowed to be inundated with tides and vegetated either naturally with mangroves or will be supplemented with hand plantings. The mitigation plan proposed by Boyd also includes some engineering measures to improve flushing in the northern mangrove area, which was found to be somewhat stressed, a surface water management plan which meets relevant criteria and a perpetual conservation easement to the DER of approximately 300 acres of mangrove areas on the northern and western boundaries of the property. This mangrove fringe will serve as a buffer between the open waters of Tampa Bay and Perico Bayou and the project site.

   8. Due to the existence of the perimeter dike, the area to

      be filled is isolated from Tampa Bay and the adjacent mangroves. The culverts can be sealed during construction to retain all fill materials and turbidity will be controlled.

      
      

   9. The stormwater system for the project site has received the approval of the Southwest Florida Water Management District and complies with the design and performance criteria set forth in Chapter 17-25, Florida Administrative Code.

      
      

   10. In its final configuration, the proposed project will contain various freshwater wetlands located landward of the perimeter dike. These include three existing borrow pits and the proposed stormwater retention ponds. These water bodies, as well as the attendant littoral zones surrounding them, will serve as habitat for aquatic and terrestrial organisms. Boyd will utilize state-of-the-art preserved pilings for any wooden structures located in jurisdictional wetlands. Such pilings will be treated in a manner that both prevents deterioration and prohibits the leeching of compounds into the water.

       
       

   11. At present, DER has no promulgated rule concerning mitigation for dredge and fill projects. Its policy is to review all projects on a case-by-case basis to determine the acceptability of the mitigation package offered by an applicant. DER's goal is to replace the environment with the same benefits to be lost from a particular wetland. DER has no established ratio between the extent of the mitigated area and the area to be filled. The area ultimately accepted in mitigation is dependent upon the existing condition of the area to be filled, in terms of its current form, function and vitality. As opposed to a "like- for-like" mitigation policy, it is DER's policy to review the similarity in form and function between the area to be lost and the area to be created or enhanced by the project. If the area to be lost or filled is stressed or damaged in its existing state, less mitigation is required.

       
       

   12. When evaluating a proposed dredge and fill project, it is DER's policy and practice to review the current situation on the site. If the site has been altered in a manner which did not require an environmental permit, DER looks at the land as it presently exists, for both jurisdictional purposes and to determine its form, function and viability for mitigation purposes. Neither flapgate maintenance nor mowing requires a DER permit. A DER official could not recall an instance when DER has required a permit for disking.

       
       

   13. Projects in the area surrounding the Boyd site present no adverse cumulative impacts in relation to the proposed Riverbay project. Indeed, the proposed conservation easement will serve to reduce the impact of this and similar projects on

       this site and adjacent, wetland areas.

       
       

   14. Manasota-88, Inc. is incorporated under the laws of the State of Florida as a charitable public interest non-profit corporation and has properly authorized this pending litigation pursuant to its charter and/or bylaws.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The initial burden of establishing entitlement to a dredge and fill permit lies with the applicant. In order to satisfy that burden in this instance, it is incumbent upon Boyd to provide reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and that the project is not contrary to the public interest. Section 403.918, Florida Statutes. Also, when reviewing an application for a permit to conduct activities involving State waters, the DER must consider not only the impacts of the project under review, but also the cumulative impact from other existing and/or potential projects involving activities which will affect the waters of the State.

       
       

   16. Here, the applicant has demonstrated that the proposed filling of wetlands and other aspects of its proposed activities will not violate water quality standards established for Class III waters on either a short term or a long term basis. No evidence was adduced to the contrary. Petitioner does, however, correctly point out that Boyd failed to adduce evidence concerning the types of herbicide or pesticide it intends to use on the proposed golf course. While the evidence is somewhat unclear as to whether there will be any discharges from the proposed golf course to waters of the State, it would be prudent to condition a permit with a provision requiring prior DER approval of the types of herbicides and/or pesticides sought to be utilized by the applicant, and appropriate monitoring of State waters if there is to be any discharge.

       
       

   17. Boyd has also demonstrated that its proposed project meets the public interest criteria set forth in Section 403.918(2), Florida Statutes. In determining whether a proposed project is "not contrary to the public interest," seven criteria must be considered and balanced. These criteria are:

       
       

       "1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

       
       

       1. Whether the project will adversely affect the conservation of fish and wildlife,

          including endangered or threatened species, or their habitats;

          
          

       2. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          
          

       3. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

          
          

       4. Whether the project will be of a temporary or permanent nature;

          
          

       5. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and

          
          

       6. The current condition and relative value of functions being performed by areas affected by the proposed activity."

          
          

   18. The evidence demonstrates that this project should not adversely affect the public health, safety or welfare, or the property of others; should not adversely affect navigation or the flow of water or cause erosion or shoaling; and should not adversely affect significant historical or archaeological resources, marine productivity, conservation of fish and wildlife and recreational values. These considerations must be viewed and balanced in the light of the current condition and relative value of the functions being performed in the areas affected by the proposed activity.

       
       

   19. Here, the evidence is undisputed that, in its present condition, the sandy area to be filled is nonproductive and does not function as a viable salt pan or salt flat wetland with regard to either fish, wildlife or other biological organisms. Its original or natural form and function have been changed throughout the years by extensive mosquito ditching, diking, impounding, mowing, disking, and other agricultural activities. The sandy area no longer functions in a manner which is important to bird and fish species. Thus, the loss of this wetland area is not contrary to the public interest.

       
       

   20. Indeed, as a result of the mitigation offered by Boyd, it is very likely that the overall environment quality of the area will be improved. The mangrove community and marine organisms will benefit from increased flushing. Additional mangrove areas will be created. Boyd will make every effort to

       recreate a 1 1/2 to 8 acre salt pan area which, if successful, will benefit fish and wildlife in the area. The proposed pond and lake system will provide additional habitat not presently existing on the property. The 300 acres of mangrove forest surrounding the site will be preserved and conveyed to the DER by a conservation easement. Such an easement will further mitigate the cumulative effects of any future projects in the area. In short, the wetlands which are being impacted by filling are currently minimally valuable to either the quality of the surrounding waters or biological organisms. The mitigation plan and storm water plan offered by Boyd preserves forested wetlands and environmentally enhances the site.

       
       

   21. The petitioner failed to present any competent, substantial evidence contrary to the above conclusions. Rather, the petitioner's position in this proceeding is that the current condition of the site--both in terms of the extent of jurisdictional wetlands and the viability of the existing sandy area--is due to the illegal activities which have occurred on the property. Petitioner contends that the property must therefore be evaluated as it existed prior to such violations as the replacement of flapgates, mowing, disking and other attempts to desalinate the sandy area. Petitioner further contends that the proposed mitigation plan not only fails to replace the functions destroyed, but indeed accomplishes nothing. It appears, overall, that what petitioner actually desires is some action which would require Boyd to restore the Riverbay property to its natural pre- diked, pre-mosquito ditching state.

       
       

   22. This is not an enforcement proceeding instituted by the DER against Boyd, nor is it an action for injunctive relief instituted pursuant to Section 403.412(2), Florida Statutes. Rather, it is a request for an environmental permit by an applicant charged with the responsibility of providing reasonable assurances that water quality will not be harmed and that the project will not be contrary to the public interest. The petitioner has failed to demonstrate that the applicant has not provided those assurances, that the project would contrary to the public interest or that the DER failed in its review responsibilities.

       
       

   23. Sufficient evidence was established in this proceeding that the DER properly computed the extent of jurisdictional wetlands on the Riverbay site and properly reviewed and analyzed were consistent with its past policies and practices. The DER's non-rule, case-by-case mitigation policy is fully explicated in the record of this proceeding, and the adequacy of Boyd's mitigation package is supported by competent, substantial evidence.

   24. As a citizen of Florida, Manasota-88 has standing to intervene in the instant permitting proceedings pursuant to Section 403.412(5), Florida Statutes. As such, it is unnecessary to determine whether petitioner has proved its "substantial interest" under Section 120.57(1), Florida Statutes.

       
       

   25. Having affirmatively provided reasonable assurances of compliance with statutory, regulatory and non-rule policy requirements, the applicant Boyd is entitled to a permit in accordance with the DER's Intent to Issue executed on April 22, 1986, with an additional condition concerning the use of herbicides and/or pesticides and subsequent monitoring to detect any potential discharges.

RECOMMENDED ORDER

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered granting Boyd's application for a dredge and fill permit in accordance with the Intent to Issue executed on April 22, 1986, with an added condition regarding the use of and monitoring for herbicides and/or pesticides near waters of the State.

Respectfully submitted and entered this 4th day of December, 1986, in Tallahassee, Florida.

DIANE D. TREMOR, 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 4th day of December, 1986.

COPIES FURNISHED:

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Ross A. McVoy, Esquire James A. Jurgens, Esquire Parker, Skelding, Costigan

McVoy & Labasky Post Office Box 669

Tallahassee, Florida 32302

C. Anthony Cleveland, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

APPENDIX

The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below:

Petitioner, Manasota-88, Inc.

NOTE: Many of the petitioner's 204 proposed factual findings relate the occupational and/or educational experience of the various witnesses in this proceeding and, while factually accurate, are not deemed appropriate for inclusion in this Recommended Order. The remaining proposals, except as noted below, are accepted a correct statements of testimony given by the witness cited but, unless incorporated in this Recommended Order, they are not deemed material to a resolution of the issues in dispute for the reasons stated in the Conclusions of Law.

13. Rejected, not supported by competent, substantial evidence.

40. Accepted with the caveat that the recommendation was made to the U.S. Army Corps of Engineers, not the Florida DER.

68. Rejected, legal argument as opposed to factual finding.

73 & 74. Rejected, irrelevant and immaterial.

75. Rejected, legal conclusions as opposed to factual finding.

83. Rejected, irrelevant and immaterial.

89. Rejected, irrelevant and immaterial.

149. Accepted with the caveat that no one has ever been required to get a permit for disking.

151. Last sentence rejected as a legal conclusion, as opposed to a factual finding.

156. Rejected by the greater weight of the evidence, unless "like for like" is interpreted in terms of form and function.

158. Rejected as contrary to the witness's testimony on cross-examination.

168. Rejected, not supported by the greater weight of the evidence.

174. Rejected, legal conclusion as opposed to factual finding.

186. Rejected as legal conclusion and contrary to the evidence.

197. Last two sentences rejected as no supported by any competent, substantial evidence.

Respondent Wilbur Boyd Corporation

p. 8, Paragraph 5 Last sentence rejected as a legal conclusion

as opposed to a factual finding.

Respondent Department of Environmental Regulation

26. Rejected only insofar as it may be interpreted to include a consideration of herbicides and pesticides.

Docket for Case No: 85-002904

Orders for Case No: 85-002904