STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROYAL PROFESSIONAL BUILDERS, ) INC., )

)

Petitioner, )

)

vs. )

) CASE NO. 96-2890 CRESTWOOD LAKES ASSOCIATES )

and SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on October 22-25, 1996, and January 6-8 and February 17, 1997.

APPEARANCES

For Petitioner: Jeffrey D. Kneen

John F. Mariani

J. Barry Curtain Levy Kneen

1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401

For Respondent Crestwood Lakes Associates:

Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan

Post Office Box 3888

West Palm Beach, Florida 33402

For Respondent South Florida Water Management District:

John J. Fumero Marcy I. LaHart Office of Counsel

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE

The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.

PRELIMINARY STATEMENT

By surface water management permit issued in 1988, Respondent South Florida Water Management District issued its conceptual approval of a 900-acre parcel known as Royal Palm Homes PUD. On August 3, 1994, Respondent Crestwood Lakes Associates submitted an application for a modification of the surface water management permit.

By revised petition dated June 13, 1996, Petitioner challenged Respondent South Florida Water Management District’s intent to issue the permit modification.

Petitioner alleged that Respondent South Florida Water Management District used the wrong permitting criteria in issuing the permit modification and that it should have required a formal wetlands delineation of Respondent Crestwood Lakes Associates’ property. Petitioner alleged that the permit modification would result in a net loss of wetlands and

a loss of open space--in the form of a golf course--that would have provided significant habitat for aquatic and wetland- dependent wildlife and foraging area and habitat for listed and endangered species. Petitioner asserted that the permit modification would flood its adjacent property. If the administrative law judge did not expressly allow the filing of the revised petition, he does so now.

By Parties’ Joint Prehearing Stipulation dated October 11, 1996, the parties identified numerous disputed issues of law. The disputed legal issues are whether: Petitioner has standing to challenge the tentative permit modification; Applicant has provided reasonable assurance that the proposed surface water system will not cause adverse water quality impacts on receiving waters and adjacent lands, pursuant to Rule 40E-4.301(1)(b); Applicant has provided reasonable assurance that the proposed surface water system will not cause adverse environmental impacts, pursuant to Rule 40E- 4.301(1)(e); the proposed modification is exempt from the rules adopted pursuant to Section 373.414(9) and 373.414(12); Applicant should have delineated the wetlands in accordance with the state wetland delineation methodology, pursuant to Section 373.4211 and Rule 62-340; the proposed modification violates Rule 40E-4.302; and Petitioner filed the petition for an improper purpose, as defined in Sections 120.569(2)(c) and 120.595(1).

By stipulation, the disputed factual issues are whether the proposed surface water management system modification will cause adverse water quality impacts; the proposed modification will cause wetland impacts not offset by mitigation, including whether the District accurately calculated mitigation credits; the District has a “no net loss” policy regarding wetlands; the proposed modification will result in loss of habitat for aquatic and wetland-dependent wildlife and foraging area and habitat for listed or endangered species; the proposed modification accurately reflects existing conditions; and the soil-storage calculations submitted by Applicant’s consultant accurately reflect existing conditions. A final disputed factual issue is when Petitioner received actual notice of the District’s notice of intent to issue the permit modification. As to all of these stipulated factual issues, the parties expressly reserved their objections to the relevancy of these facts.

At the hearing, Petitioner called nine witnesses and offered into evidence 20 exhibits. Respondent Crestwood Lakes Associates called four witnesses and offered into evidence 22 exhibits identified as Applicant Exhibits. Respondent South Florida Water Management District called three witnesses and offered into evidence six exhibits. The parties offered into evidence eight joint exhibits. All exhibits were admitted except Applicant Exhibit 19.

The administrative law judge took official notice of all rules of Respondent South Florida Water Management District, including the Basis for Review for Surface Water Management Permits (1994) and the Basis for Review for Environmental Resource Permits (1995). Respondent South Florida Water Management District filed copies of these documents.

The court reporter filed the transcript on March 20, 1997. The parties filed proposed recommended orders on March 24, 1997.

FINDINGS OF FACT

1. Background

   
   

   1. This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands.

   2. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate.

   3. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel

      adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres.

   4. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands.

   5. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area.

   6. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules

      replaced the old Management and Storage of Surface Water (MSSW) permit rules.

   7. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action.

2. Permits

   
   

   1. The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD).

   2. The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect.

   3. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no

      other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel.

   4. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal.

   5. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin.

   6. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and

      “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.”

   7. The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed.

   8. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan."

   9. The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be

      “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial

      . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village.

   10. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel.

   11. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase.

   12. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality.

   13. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.”

   14. The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians.

   15. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes.

   16. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special

       conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition

       17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development.

   17. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls.

   18. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County.

   19. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out

       through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages "

   20. Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site."

   21. The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer.

   22. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears

       highly doubtful. The documents likewise do not disclose the penalties for noncompliance.

   23. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin.

   24. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit.

   25. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel.

   26. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine

       wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit.

   27. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating:

       When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property.

       To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.

   28. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so.

   29. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system

       was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands.

   30. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas.

   31. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin.

   32. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin

       consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.”

   33. The staff report notes that the north basin contains

       
       

       107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development.

   34. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association.

   35. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].”

   36. Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the

       “environmental criteria in effect at the time of construction permit application.”

   37. Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property.

   38. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications.

   39. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca)

       . . ..”

   40. Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993.

   41. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time.

   42. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit.

   43. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the

       preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below.

   44. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence."

   45. The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel.

   46. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case.

   47. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central

       basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I.

   48. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD.

   49. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition.

   50. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water.

   51. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD.

   52. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area.

   53. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet

       prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods.

   54. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition.

   55. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area.

   56. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is

       part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve.

   57. The staff report concludes that the District should issue the permit subject to various conditions.

   58. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD.

   59. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create

       4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports.

   60. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition

       21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species.

   61. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to

       the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically:

       The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario.

       
       

       Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.)

3. Water Quality Impacts

   
   

   1. Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards.

4. Flooding

   
   

   1. Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding.

      However, Applicant has provided reasonable assurance that the project would not violate these requirements.

   2. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal.

   3. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems.

   4. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the

      effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding.

   5. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of

      19 feet NGVD.

      
      

   6. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system.

   7. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations.

   8. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.”

   9. Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type.

   10. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area.

   11. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements.

   12. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage

       basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins.

   13. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events.

   14. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity.

5. Environmental Impacts A. Wetlands

   1. Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements.

   2. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or

      compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation.

   3. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer.

   4. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources.

   5. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca.

   6. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics.

   7. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations.

   8. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional

      environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work.

   9. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources.

   10. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit,

       represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres.

   11. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved.

   12. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres.

   13. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit.

   14. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection

       of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program.

   15. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987.

   16. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program.

   17. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the

       created wetlands, the new total for preserved or created wetlands was 134.64 acres.

   18. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands.

   19. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of

       183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed.

   20. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they

       are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.”

   21. The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres.

   22. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands.

   23. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts.

   24. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification.

   25. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit.

   26. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit.

   27. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to

       estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12.

   28. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit.

   29. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in

       the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal.

   30. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion.

       1. Listed Species

          
          

   31. The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to

       determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands.

6. Procedural Issues A. Standing

   1. Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part.

      1. Applicability of ERP Rules

         
         

   2. The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources.

      1. Requirement to Delineate Wetlands

         
         

   3. Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands.

      1. Improper Purpose

      
      

   4. Petitioner did not challenge the proposed permit modification for an improper purpose.

7. Relevant Provisions of Basis of Review

1. The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP

   Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification.

2. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District."

3. The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands.

4. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no

   net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . .

   . which is not offset by mitigation."

   
   

5. The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands."

6. Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification.

7. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the

   District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

9. Applicant argues that Petitioner lacks standing to challenge the proposed permit modification or, if it has standing, it lacks standing to raise the issue whether the District should have applied the ERP rules in reviewing the application.

10. Applicant timely raised the issue of standing, and Petitioner must thus prove its standing. Petitioner demonstrated standing to challenge all aspects of the proposed permit modification. The District permitted a SWM covering the north parcel owned by Petitioner and the south parcel owned by Applicant. The wetland impacts are also sufficiently immediate to Petitioner to justify standing on that basis also.

11. In part, Applicant argues that Petitioner lacked standing because Petitioner did not prove that it timely requested a hearing. This argument confuses standing with

    waiver. Applicant is really asserting that Petitioner waived its right to a hearing.

12. Applicant did not timely apprise Petitioner of this affirmative defense, for which the burden of proof falls on Applicant, not Petitioner. Applicant omitted any mention of waiver in the disputed legal issues stated in the prehearing stipulation. Although the disputed factual issues mention one fact that might have implicated waiver, the parties did not stipulate to the relevance of this fact.

13. In any event, Applicant's waiver argument incorrectly assumes that the time to request a hearing ran from when the District transmitted the staff report. This is not proposed agency action, despite anything to the contrary contained in any notice of rights accompanying the staff report. Permit challengers are not required to file petitions challenging staff reports sent to District governing boards for agency action. For the purpose of timely requesting a hearing, proposed agency action occurs only when the District approves the staff report and proposes to issue the recommended permit. Petitioner filed its petition on the same day as the District approved the staff report and proposed to issue the permit modification.

14. Except for standing, the burden of proof in this case is on Applicant. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

15. The ERP rules were in effect when Applicant's application became complete. The ERP rules would apply to this request for a permit modification unless the request were grandfathered. Section 373.414(12)(a) grandfathers requests for permit modifications that do not result in "substantially different water resource impacts." For the reasons stated above, the District incorrectly applied the MSSW rules to Applicant's request for a permit modification because the proposed development plan, even after mitigation and compensation, imposes a substantially greater impact on water resources when compared to the impact of the development, mitigation, and compensation authorized under the 1988 Permit.

16. MSSW Rule 40E-4.301(1)(b) requires an applicant to give reasonable assurances that the proposed SWM system "will not cause adverse water quality and quantity impacts." This requirement is found in ERP Rule 40E-4.301(1)(a) and (e).

17. Applicant provided reasonable assurance as to water quality and quantity impacts.

18. MSSW Rule 40E-4.301(1)(e) requires an applicant to give reasonable assurances that the proposed SWM system "will not cause adverse environmental impacts." This requirement is found in ERP Ruled 40E-4.301(1)(d) and (f).

19. Applicant has not provided reasonable assurances as to adverse environmental impacts on wetlands and their functions.

RECOMMENDATION

It is

RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification.

ENTERED in Tallahassee, Florida, on June 13, 1997.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997.

COPIES FURNISHED:

Jeffrey D. Kneen John F. Mariani

J. Barry Curtain Levy Kneen

1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401

Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan

Post Office Box 3888

West Palm Beach, Florida 33402

John J. Fumero Marcy I. LaHart Office of Counsel

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406

Samuel E. Poole, III Executive Director Post Office Box 24680

West Palm Beach, Florida 33416

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-002890

Orders for Case No: 96-002890