STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BARBARA HEINE,
vs.
Petitioner,
Case No. 15-1049
ALICO WEST FUND, LLC, AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on August 17 and 18, 2015, in Fort Myers, Florida, before
Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner Barbara Heine:
Ralf G. Brookes, Esquire Ralf Brookes Attorney Suite 107
1217 East Cape Coral Parkway Cape Coral, Florida 33904
For Respondent Alico West Fund, LLC:
Kevin S. Hennessy, Esquire Matthew B. Taylor, Esquire Lewis, Longman and Walker, P.A. Suite 620
101 Riverfront Boulevard Bradenton, Florida 34205
For Respondent South Florida Water Management District:
Keith L. Williams, Esquire Jennifer D. Brown, Esquire
South Florida Water Management District Mail Stop Code 1410
3301 Gun Club Road
West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE
The issue to be determined is whether Environmental Resource Permit Modification No. 36-03568-P-05 should be issued as proposed in the notice issued by the South Florida Water
Management District.
PRELIMINARY STATEMENT
On January 12, 2015, the South Florida Water Management District (District) issued proposed agency action regarding Environmental Resource Permit Application No. 140124-13, in the form of an Individual Environmental Resource Permit Staff Report, and a proposed Permit Modification No. 36-03568-P-05 (Permit) to Alico West Fund, LLC (Alico).
On February 23, 2015, after having received an extension of time to file a petition to challenge the issuance of the Permit, Petitioner, Barbara Heine (Ms. Heine or Petitioner) timely filed her Verified Petition for Administrative Hearing. Petitions were also filed by Miromar Lakes, LLC, and Miromar Lakes Community Development District. The petitions were referred to the Division of Administrative Hearings on February 26, 2015.
2
The three cases were consolidated on March 4, 2015, with Ms. Heine’s Verified Petition for Administrative Hearing being assigned as DOAH Case No. 15-1049; Miromar Lakes, LLC’s Petition Requesting Formal Administrative Hearing being assigned as DOAH Case No. 15-1050; and Miromar Lakes Community Development District’s Petition Requesting Formal Administrative Hearing being assigned as DOAH Case No. 15-1051.
The final hearing was scheduled for the week of June 22, 2015. The hearing was subsequently rescheduled for the week of August 17, 2015, and was convened on that date.
Upon commencement of the final hearing, Miromar Lakes, LLC and Miromar Lakes Community Development District announced that they had resolved all disputed issues with Alico, and that they were dismissing their petitions. Miromar Lakes, LLC and Miromar Lakes Community Development District were thereupon excused from further participation in the hearing, and jurisdiction over DOAH Case Nos. 15-1050 and 15-1051 was relinquished to the District.
In addition to the narrowing of the issues occasioned by the withdrawal of Miromar Lakes, LLC and Miromar Lakes Community Development District, Ms. Heine withdrew her challenge to the wetland delineation and water quality impacts of the proposed permit. Thus, the final hearing proceeded on the following issues:
3
the activities proposed by the permit would be contrary to the public interest;
the activities proposed by the permit would adversely affect fish and wildlife functions as provided by wetlands to be removed;
the applicant’s failure to implement practicable design modifications;
the inaccuracy of scores under the Uniform Mitigation Assessment Method (UMAM);
the insufficiency of the mitigation proposed due to the failure to minimize the project boundaries;
the secondary and cumulative impacts of the activities proposed by the permit; and
the applicant’s failure to provide reasonable assurance as a result of the identified deficiencies.
The permit under review having been issued under the authority of chapter 373, Florida Statutes, the hearing was subject to the modified burden of proof established in section 120.569(2)(p), Florida Statutes. The burden of proof provisions of section 120.569(2)(p) are discussed in the Conclusions of Law herein.
The following exhibits were received in evidence by stipulation of the parties: Joint Exhibit 2, consisting of an aerial photograph of the Miromar Lakes Community Development District, including the proposed CenterPlace development at issue in this proceeding; Joint Exhibit 5, consisting of the permitting file, the Individual Environmental Resource Permit
4
Staff Report, and the proposed Permit; and Joint Exhibit 5A, which incorporated an amendment to the Individual Environmental Resource Permit Staff Report.
Alico called as witnesses: Timothy Gavin, P.E., Alico’s project engineer; and Kenneth Passarella, who was tendered and accepted as an expert in wetlands ecology and wetlands permitting. Alico’s Exhibits 16, 47, 108, 130, 226, and 251 were received in evidence.
The District and Alico jointly called as their witness Laura Layman, the supervisor/section leader for the District’s environmental permit review section. District Exhibit 6 was received in evidence.
Petitioner called as witnesses: Barbara Heine, who testified to standing and related factual matters; and Sandra Walters, who was tendered and accepted as an expert in wetlands ecology. Petitioner’s Exhibits 1, 4, 7, 9, 11(2-C); and
13 through 20 were received in evidence.
A three-volume Transcript of the final hearing was filed on September 15, 2015. The parties timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2015), unless otherwise noted.
5
FINDINGS OF FACT
The Parties
Ms. Heine lives on the north shore of South Lake, also referred to as “Lake 6” or “Lake Como,” in the Miromar Lakes housing development. South Lake is connected to the lake on which the CenterPlace development is proposed, known generally as North Lake or “Lake 5.” Ms. Heine uses the waters of both lakes for boating, kayaking, and paddle-boarding.
Alico is a Florida Limited Liability Corporation with its principal place of business in Fort Myers, Florida. Alico owns approximately 886 acres of real property south of Alico Road and east of Ben Hill Griffin Parkway in Fort Myers, Florida. The property is to the north and east of the existing Miromar Lakes development. Alico’s holdings include North Lake and a parcel between the north shore of North Lake and Alico Road. The parcel of property between the north shore of North Lake and Alico Road includes 13.42 acres of jurisdictional wetlands (Alico Road wetlands), 8.73 acres of which will be impacted by the activities authorized by the Permit, and
4.69 acres of which will be enhanced and preserved.
The District is a water management district created by section 373.069, Florida Statutes. It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.016, Fla. Stat.
6
The District has the power and duty to exercise regulatory jurisdiction over the activities subject to the Permit pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Title 40E. In implementing responsibilities with regard to Environmental Resource Permits (ERP), the District has developed and adopted the Applicant’s Handbook (A.H.) to provide standards and guidance to applicants.
The Environmental Resource Permit
Application No. 140124-13 proposes a modification to ERP Permit No. 36-03568-P, which is a conceptual approval permit for a surface water management system designed to serve a 1481.1 acre mixed-use development within Miromar Lakes. The proposed Permit is a conceptual authorization for 115.97 acres of future development, and proposed authorization for construction and operation of a stormwater management system serving 364.12 acres, all designed for 480.09 acres of mixed-use development within an 886.04 acre permit area known as CenterPlace.1/
The CenterPlace project area was planned for development as a combination of single and multi-family residential uses and commercial uses.
The 480.09 acres slated for development include
44.49 acres of wetlands that will be filled or otherwise
7
directly impacted, including 8.73 acres of the Alico Road wetlands.
The proposed development of the Alico Road wetlands includes construction of a multi-family development, a sand beach on North Lake, associated infrastructure, and treated stormwater outfalls to the existing lakes.
North Lake and South Lake
Adjacent to the CenterPlace development site are two water-filled pits from rock mining that commenced in the early 1970s, and extended into the 1990s. The northernmost of the two lakes, generally referred to as North Lake, has frontage on the proposed CenterPlace development. The southernmost lake, generally referred to as South Lake, is immediately to the south of North Lake, and is adjacent to the Miromar Lakes development and Florida Gulf Coast University. The lakes are collectively referred to as Lake 5/6.
North Lake is currently used for recreational purposes and provides stormwater attenuation capacity for the adjacent Miromar Lakes development, and CenterPlace in its existing condition.
South Lake was previously separated from North Lake.
However, with the development of the Miromar Lakes development, a connection was made that now allows boat traffic between the lakes.
8
North Lake and South Lake function as one large lake for stormwater treatment and flood control purposes. Stormwater treatment for the CenterPlace development, including that portion along Alico Road, is to be provided prior to discharge to the lake system. Stormwater attenuation capacity for the future widening of Alico Road and expansion of County Road 951 is also provided by the proposed Permit.
The lakes have an outfall weir at the southeast corner of the property, well removed from the Alico Road wetlands, that controls discharge from the lake system into the Stewart Cypress Slough. The weir has a control elevation set at 18 feet NGVD.
North Lake and South Lake are in the Estero River drainage basin, as are the proposed CenterPlace development and the Miromar development. Thus, water draining from those areas eventually reaches the Estero River.
Persons living along South Lake have a recreational easement to use the waters of North Lake. The recreational easement conveys no title to North Lake, and provides no rights to the use of any uplands along the shore of North Lake.
Alico Road Wetland Condition
In order to assess the impacts expected as a result of proposed activities on the value of wetland functions, A.H. section 10.2.2.3 provides that the functional value of a wetland is to be evaluated by considering: the condition of the
9
wetland; hydrologic connections, if any, to off-site water resources; the uniqueness of the wetland; the location of the wetland in relation to its surroundings; and fish and wildlife utilization of the wetland.
Condition of the Wetland
The Alico Road wetlands are heavily infested with exotic and nuisance vegetation, including melaleuca and Brazilian pepper. Although there are some areas with exotic and nuisance vegetation covering 25 percent or less of the land surface, in most areas the exotic and nuisance vegetation covers more than 50 percent of the area, and much has been degraded to a virtual monoculture, with nuisance and exotic vegetation covering more than 75 percent of the land surface.
Hydrologic Connection
Alico Road existed well before the commencement of mining activities on the property. The construction of Alico Road, and the existence of a large east/west drainage ditch on the north side of Alico Road, has cut off all sheet flow and completely severed any hydrologic connection that may have historically existed between the Alico Road wetlands and the large expanse of wetlands north of Alico Road.
The Alico Road wetlands survived the rock mining, although they were highly disturbed by the construction of haul roads and berming through the wetlands and along the shore of
10
North Lake. The former haul road that exists between the waters of North Lake and the Alico Road wetlands remains at an elevation higher than the Alico Road wetlands. To the east and west of the Alico Road wetlands are elevated access roads, which effectively close the boundary around the Alico Road wetlands.
The combined effect of the haul road, the other access roads, and related disturbances and deposits of rubble and mining waste, effectively severed any hydrologic connection that existed in the past. As a result, the Alico Road wetlands are functionally isolated in all but extreme high rainfall conditions. The evidence is persuasive that there is no regular hydrologic connection between the Alico Road wetlands and North Lake, or between the Alico Road wetlands and any other off-site wetland or surface water. Thus, the Alico Road wetlands provide few, if any, benefits to off-site water resources through detrital export, base flow maintenance, water quality enhancement, or the provision of nursery habitat.
The wetland delineation of the area indicates that wetland vegetation stops well landward of the shore of North Lake. The wetland delineation is not disputed. The lack of a vegetative connection from the Alico Road wetlands to North Lake is further evidence that there is no regular hydrologic connection between the two, and provides substantiation of the
11
Alico Road wetlands’ isolation and low ecological value in relation to their surroundings.
Uniqueness of the Wetland
The vegetative species that establish the wetland character of the Alico Road wetlands -- though much is overrun by exotic and nuisance vegetation as set forth above -- consist of mixed cypress and hydric pine. Mixed cypress and pine wetlands are very common in the surrounding regional landscape of southwest Florida, and in the vicinity of the CenterPlace project. There is nothing in their utilization by birds, insects, or other fauna that set the Alico Road wetlands apart from other common and abundant wetlands in the area, or that suggest that they are in any way unique.
Location of the Wetland in Relation to its Surroundings
The functional value of the Alico Road wetlands is degraded by their location in an area of active and substantial residential and commercial development. That development is ongoing, as evidenced by Lee County’s recent clearing of a 75- foot-wide swath of the wetlands bordering Alico Road for the installation of utility lines and the widening of Alico Road.
Fish and Wildlife Utilization
Although wildlife can access the Alico Road wetlands, there was no evidence of any breeding, nesting, or denning, which would be indicators of productivity.
12
Petitioner testified to having observed great blue herons, little blue herons, and reddish egrets in the “Alico wetland area,” though she offered no further explanation of where those birds were observed. She looked for roseate spoonbills, panthers, and bears, but had not observed them in the area. Although little blue herons and reddish egrets are state species of special concern (see A.H. Table 10.2.7-1), there was no evidence that they used the Alico Road wetlands or any nearby upland habitats for nesting, foraging, or any other purpose.
Ms. Walters testified that “the few-feet distance between these wetlands and the lake do not preclude wildlife from traveling from one to the other and utilizing the habitats in both locations,” but as to her direct observations, she “saw several different species of birds as well as fish in the lake. It was a productive, vibrant aquatic community in the lake with these wetlands directly in the vicinity of the lake along that northern boundary.” Thus, although the record contains evidence of birds wading and feeding in North Lake, there was little or no evidence that birds regularly waded, fed, or roosted in the Alico Road wetlands.
The evidence was persuasive that wildlife access to the Alico Road wetlands is generally limited to birds and insects, i.e., creatures that are able to fly. Although there
13
are no physical barriers that would prevent terrestrial species from passing through the property, Alico Road would make such access perilous. As such, there was no evidence of terrestrial species having been observed on the property.
Because of their isolation and the history of mining activities around them, wildlife utilization of the Alico Road wetlands is expected to be minimal.2/
Given the hydrologic severance of the Alico Road wetlands from other wetlands or open waters, there is no utilization of the wetlands by fish species.
Pursuant to A.H. section 10.2.2, and as part of the assessment of the impacts of regulated activities upon fish and wildlife, the District provided the application for the Permit to the Florida Fish and Wildlife Conservation Commission for review and comment as to matters within its jurisdiction. The Commission provided no comments regarding potential impacts to fish and wildlife and their habitats expected as a result of the permitted activities.
Alico Road Wetland Condition - Conclusion
Applying the criteria established in A.H. section 10.2.2.3, the preponderance of the evidence in this proceeding demonstrates that the value of the wetland functions provided by the Alico Road wetlands is low.
14
Public Interest Balancing Test
To determine whether a regulated activity located in, on, or over wetlands or other surface waters is not contrary to the public interest, Florida Administrative Code Rule 62- 330.302(1) and A.H. section 10.2.3 provide that the District is to consider and balance: whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others; whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; whether the regulated activity will be of a temporary or permanent nature; whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources; and the current condition and relative value of functions being performed by areas affected by the proposed regulated activity.
Public Health, Safety, or Welfare or the Property of Others
A.H. section 10.2.3.1 establishes four criteria to be balanced in order to determine if regulated activities will adversely affect the public health, safety, or welfare or the property of others. The evidence in this case demonstrated that impacts to the Alico Road wetlands will not affect waters
15
subject to a shellfish harvesting classification (A.H. section 10.2.3.1(b)), will neither cause nor alleviate flooding on the property of others (A.H. section 10.2.3.1(c)), and will not result in environmental impacts to the property of others (A.H. section 10.2.3.1(d)).
A.H. section 10.2.3.1(a) requires an evaluation of:
An environmental hazard to public health or safety or improvement to public health or safety with respect to environmental issues. Each applicant must identify potential environmental public health or safety issues resulting from their project. Examples of these issues include: mosquito control; proper disposal of solid, hazardous, domestic or industrial waste; aids to navigation; hurricane preparedness or cleanup; environmental remediation, enhancement or restoration; and similar environmentally related issues.
The activities proposed on the Alico Road wetlands will not result in an environmental hazard to public health. Furthermore, the proposed permit calls for the enhancement and preservation of 4.69 acres of the Alico Road wetlands, which will include removal of exotic species and connection of the wetlands to off-site wetlands. As a result, the activities on the Alico Road wetlands, as a whole, will result in an improvement to public health or safety with respect to environmental issues.
Applying the four factors set forth in A.H. section 10.2.3.1, the preponderance of the evidence establishes that the
16
filling of 8.73 acres of the Alico Road wetlands will not adversely affect the public health, safety, or welfare or the property of others.
Conservation of Fish and Wildlife
For the reasons set forth in the Alico Road Wetland Condition - Fish and Wildlife Utilization analysis, paragraphs
23 through 29 above, there was insufficient evidence to support a finding that there will be adverse impacts to the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The combined effect of the isolated and degraded nature of the Alico Road wetlands, the enhancement of portions of those wetlands, and the lack of evidence of wildlife utilization of the Alico Road wetlands or that birds would be unable to continue to forage the shoreline of North Lake, leads to the conclusion that any effect of the filling of the Alico Road wetlands on wildlife or wildlife habitat would be, at most, de minimis.
Navigation, Flow of Water, or Erosion or Shoaling
The proposed development, once complete, will not prevent fishing, boating, or other forms of recreation in North Lake. There was no evidence that the filling of the Alico Road wetlands would have any adverse effect on navigation or the flow of water, or cause harmful erosion or shoaling.
17
Fishing or Recreational Values or Marine Productivity
For the reasons set forth herein, the filling of the Alico Road wetlands is expected to have no effect on fishing, sport or commercial fisheries, or marine productivity.
Given the isolated and degraded nature of the Alico Road wetlands, and the lack of any hydrologic connection in all but the most extreme rainfall events, the evidence was insufficient to support a finding that the filling of the wetlands will be reasonably expected to eliminate or degrade fish nursery habitat, change ambient water temperature, change the normal salinity regime, reduce detrital export, change nutrient levels, or otherwise have any adverse effects on populations of native aquatic organisms.
There was no evidence that the filling of the Alico Road wetlands would have any adverse effect on boating, fishing, swimming, waterskiing, or hunting. Petitioner’s interest in those types of recreational uses of the waters of North Lake will be unaffected by the permitted activities.
Petitioner asserted that her recreational interest in birdwatching will be adversely affected by the elimination of a portion of the Alico Road wetlands. However, there was no persuasive evidence that birds regularly fed, waded, or rested in the affected Alico Road wetlands. Petitioner and Ms. Walters
18
testified as to birds wading and foraging in the waters of North Lake, but produced no evidence that they would stop wading along the shore of North Lake, or abandon the area as a foraging spot for Petitioner’s enjoyment.
Temporary or Permanent Nature
The proposed development of the Alico Road wetlands will be of a permanent nature.
Historical and Archaeological Resources
There was no evidence of significant historical or archaeological resources on or near the Alico Road wetlands.
Current Condition and Relative Value of Functions
As discussed in detail herein, the preponderance of the evidence in this proceeding demonstrates that the Alico Road wetlands are hydrologically isolated from other waters or wetlands, that they are severely degraded as a result of significant infestation by nuisance and exotic vegetative species, and that their floral, faunal, and ecological value is very low.
There was no evidence to suggest that the activities leading to the hydrologic isolation or poor quality vegetative regime of the Alico Road wetlands, many of which occurred prior to the requirement for permits, were performed in violation of any applicable rule, order, or permit.
19
Public Interest Balancing Test - Conclusion
The preponderance of the evidence in this proceeding demonstrates that the impacts to the Alico Road wetlands authorized by the proposed Permit will not be contrary to the public interest.
Adverse Effects on Fish and Wildlife Functions
For the reasons set forth in paragraphs 23 through 29 and 36 above, there was insufficient evidence to support a finding that the proposed development of the Alico Road wetlands will result in adverse impacts to the conservation of fish and wildlife, including endangered or threatened species, or their habitats.
Practical Design Modifications
Mitigation for the Alico Road wetland impacts is to be predominantly provided through purchase of mitigation credits from the Panther Island mitigation bank.3/ The Panther Island mitigation bank is adjacent to the Corkscrew Regional Ecosystem Watershed, which has been identified as having significant environmental value to wetlands, uplands, and endangered species.
Given the very low value of the Alico Road wetlands, the evidence was persuasive that mitigation in the form of Panther Island mitigation credits provides much greater and more
20
significant long-term regional benefits than the isolated and degraded Alico Road wetlands.
Based on the combination of the low value of wetland functions provided by the Alico Road wetlands, and the greater overall benefit provided by the proposed mitigation, practical design modifications to reduce or eliminate direct impacts on the wetlands were not provided.
Uniform Mitigation Assessment Method
Much of Petitioner’s opposition to the proposed Permit was based on her belief that the functional assessment of the Alico Road wetlands should have been performed using the Uniform Mitigation Assessment Method (UMAM), and that all ERP criteria that rely on information derived from the functional assessment should have applied UMAM.
UMAM was developed to “provide an exclusive and consistent process for determining the amount of mitigation required to offset impacts to wetlands and other surface waters.” § 373.414(1)(a), Fla. Stat. However, if mitigation is to be provided by a mitigation bank, the wetland impact sites are to be assessed “using the credit assessment method, including any functional assessment methodology, which was in place when the bank was permitted.” § 373.414(1)(b), Fla. Stat.
Alico originally performed a UMAM wetlands assessment for an on-site mitigation area that was then proposed. After
21
discussion with the District, it was determined that the
acres of on-site wetlands that are to be enhanced and preserved, would not be credited towards the mitigation required. Instead, mitigation for the Alico Road wetland impacts is to be provided entirely by the purchase of wetland mitigation credits from the Panther Island mitigation bank and Big Cypress mitigation bank.
The Panther Island mitigation bank and Big Cypress mitigation bank were permitted using the Wetland Rapid Assessment Procedure (WRAP).
Since the mitigation banks were permitted under WRAP, Alico correctly assessed the functions of the Alico Road wetland impact site using WRAP.
Ms. Walters had no disagreement with Mr. Passarella’s assessment of the functional loss from the impacts to the Alico Road wetlands using WRAP.
Petitioner suggested a process by which all wetlands are to be assessed using UMAM and, if mitigation is to be provided through the purchase of credits from a mitigation bank permitted under a different functional assessment methodology, reassessed using that different methodology. Ms. Layman testified that the “two assessment” process described by Petitioner is not consistent with the District’s application of its enabling statute and rules, stating that UMAM is “irrelevant
22
to the Alico Road wetlands . . . because the wetlands are being mitigated at a mitigation bank that was assessed using a different wetland functional assessment.” Since Ms. Layman’s description of the manner in which functional wetland assessments are to be performed is consistent with the language of the statute, her testimony is credited.
Mitigation
The Panther Island mitigation bank and Big Cypress mitigation bank, from which mitigation credits are to be purchased, are in the West Collier regional watershed, which is contiguous with the Estero Bay watershed in which the Alico Road wetlands are located.
The Alico Road wetlands are in the established service areas for the Panther Island mitigation bank and Big Cypress mitigation bank.
As set forth in paragraphs 48 through 50, the proposed mitigation provides significant regional benefit to wetlands, listed species, and fisheries in the area. To the contrary, the Alico Road wetlands provide very little, if any, regional (or local) benefits due to their degraded nature.
The proposed impacts to the Alico Road wetlands, as subject to mitigation through mitigation bank credits, will not result in a violation of state water quality standards or cause
23
a significant adverse impact to the functions of other wetlands or surface waters within the Estero Bay drainage basin.
The prima facie case presented by Alico established that the mitigation credits are sufficient to offset adverse impacts in the Mitigation Service Area.
Secondary and Cumulative Impacts Secondary Impacts
The elimination of 8.73 acres of the Alico Road wetland will not cause or contribute to violations of water quality standards or result in adverse impacts to the functions of wetlands or other surface waters.
The removal of the Alico Road wetlands will not adversely affect the ecological value of uplands for bald eagles or for aquatic or wetland dependent listed animal species for enabling existing nesting or denning. There were no comments received from the Florida Fish and Wildlife Conservation Commission.
The removal of the Alico Road wetlands will not cause impacts to significant historical and archaeological resources.
There was no evidence of other phases or expansion of the CenterPlace development that would have an effect on the Alico Road wetland area.
24
Cumulative Impacts
Since the mitigation being proposed for the Alico Road wetland impacts are to be conducted outside of the Estero Bay drainage basin, an assessment of the cumulative impact of the impacts was required.
In order to assess the cumulative impacts of the Alico Road wetland impacts, Alico used the 2008 Estero Bay Cumulative Impact Assessment study developed by Johnson Engineering, Inc. (Johnson study). The Johnson study was developed in cooperation with the District to provide an assessment of the Estero Bay watershed, and created a model that could be run using weighted numeric values for the wetland functions set forth in A.H. section 10.2.2.3. The model was designed to be a uniform method of evaluating cumulative impacts to wetland functions that would reduce the otherwise challenging and subjective application of the standards.
The Johnson study calculated wetland acreage subject to preservation through ownership by public entities or conservation easements established by permit within the Estero Bay drainage basin, and identified wetlands in the Estero Bay drainage basin that were at risk for development, as well as the class of each wetland -- from excellent to poor.
By applying the wetland acreage, the weighted wetland values, and the current levels of wetland protection, the
25
Johnson study calculated a percentage of wetlands vulnerable to development -- by class -- that could be mitigated outside of the Estero Bay drainage basin without a cumulative impact to the overall wetlands within the drainage basin.
The Johnson study calculated that 8,875 acres of unprotected wetlands in the Estero Bay drainage basin (out of 19,778.84 total acres of unprotected wetlands) could be mitigated outside the drainage basin without there being unacceptable cumulative impacts, which number ranged from 4,144 acres of poor quality wetlands, to 7 acres of excellent quality wetlands. The study calculated that impacts to 2,530 acres of “low” quality wetlands could be mitigated outside of the drainage basin without there being unacceptable cumulative impacts.
Using the criteria set forth in the Johnson study, and as set forth in paragraphs 15 through 30, the value of the functions of the Alico Road wetlands is classified in the “low” category. That assessment is supported by a preponderance of the competent and substantial evidence.
Alico updated the Johnson study with current information of existing and permitted projects within the Estero Bay drainage basin. Alico also utilized the 2012 District Land Use Cover and Forms Classification System data, which is the
26
most recent data available, and applied a recent basin boundary modification.
The District keeps track of the number of impacted wetlands as permits are applied for and issued, and adjusts the model accordingly. In its assessment of cumulative impact, the District routinely reviews its database of pending and permitted applications and its geographic information system database, and did so in this case. That process of “accounting” lets an applicant know whether the out-of-basin cumulative impact threshold has been met.
Since the development of the Johnson study in 2008, and through September 2014, there have been a total of 289 acres of wetland impacts within the Estero Bay drainage basin that have been mitigated outside of the drainage basin. Thus, the allowable number of low-quality wetland impacts that can be mitigated outside of the Estero Bay drainage basin, without unacceptable cumulative impacts, has not been exceeded.
A preponderance of the evidence in this proceeding demonstrates that mitigating the proposed Alico Road wetland impacts through the purchase of out-of-basin mitigation credits will not result in unacceptable cumulative impacts to wetlands and surface waters within the Estero Bay drainage basin.
Ms. Walters testified that the determination of the quality of the Alico Road wetlands for purposes of determining
27
cumulative impacts should have been performed under the UMAM scoring system. In her opinion, under UMAM, the Alico Road wetlands are not low quality, but rather are moderate quality.
Petitioner’s proposed recommended order objected to the use of the Johnson study, not on grounds that the study itself was beyond the authority of the District, but rather that the Johnson study was:
contrary to the statutory requirement in Section 313.414(18) F.S., to utilize UMAM to evaluate the quality of wetlands for assessing impacts and mitigation the assessment method used in the 2008 Johnson study and the Applicants’ Cumulative Impact Assessment is different than UMAM and 10.2.8, AH. The 2008 Johnson study used by the District is inconsistent with Section 313.414(18) Florida Statutes. Use of that study by the CenterPlace Cumulative Impact Assessment is contrary to Section 313.414(18) Florida Statutes.
Ms. Layman testified that because the sole purpose for UMAM is to determine the amount of mitigation required to offset impacts to wetlands, the District does not apply UMAM to determine whether a particular impact will result in an unacceptable cumulative impact. Ms. Layman’s understanding of the scope of the UMAM rule is substantiated by rule 62- 345.100(4) which provides that UMAM “is not intended to supersede or replace existing rules regarding cumulative impacts,” and by ERP A.H. section 10.2.8.1, which requires that wetland functions for the cumulative impact analysis be
28
determined by applying the criteria and functions listed in
A.H. section 10.2.2.
A functional loss assessment using UMAM was not required for the determination of whether unacceptable cumulative impacts would be reasonably expected as a result of the impacts to the Alico Road wetlands.
Reasonable Assurance
Based on the foregoing Findings of Fact, and as supported by a preponderance of the competent, substantial, and credible evidence, there is a substantial likelihood that the applicable conditions for issuance of the proposed Permit as set forth herein have been satisfied.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.
Standing
Petitioner uses a motorboat, kayak and paddle-board to observe native flora and fauna in the area of the subject site and the adjacent surface waters as part of her nature-based recreational activities.
The parties to this proceeding stipulated to the standing of Petitioner.
29
Nature of the Proceeding
This is a de novo proceeding, intended to formulate final agency action and not to review action taken earlier and preliminarily. Young v. Dep’t of Cmty. Aff., 625 So. 2d 831, 833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of
Envtl. Reg., 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald v. Dep’t of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA
1977).
Burden and Standard of Proof
Section 120.569(2)(p) provides that:
For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency's issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency's staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant's prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the permit, license, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence.
30
Alico made its prima facie case of entitlement to the Permit by entering into evidence the complete application files and supporting documentation and the District’s Individual Environmental Resource Permit Staff Report. In addition, Alico presented the testimony of its project engineer and wetlands ecology expert, and of the supervisor of the District’s environmental permit review section. With Alico having made its prima facie case, the burden of ultimate persuasion is on Petitioner to prove her case in opposition to the Permit by a preponderance of the competent and substantial evidence, and thereby prove that Alico failed to provide reasonable assurance that the standards for issuance of the permits were met.
The standard of proof is preponderance of the evidence. § 120.57(1)(j), Fla. Stat.
Reasonable Assurance Standard
Issuance of the proposed Alico permit is dependent upon there being reasonable assurance that the activities authorized will meet applicable standards.
Reasonable assurance means “a substantial likelihood that the project will be successfully implemented.” Metropolitan Dade Co. v. Coscan Fla., Inc., 609 So. 2d 644,
648 (Fla. 3d DCA 1992). Reasonable assurance does not require absolute guarantees that the applicable conditions for issuance of a permit have been satisfied. Furthermore, speculation or
31
subjective beliefs are not sufficient to carry the burden of presenting contrary evidence or proving a lack of reasonable assurance necessary to demonstrate that a permit should not be issued. FINR II, Inc. v. CF Indus., Inc., Case No. 11-6495 (Fla. DOAH Apr. 30, 2012; DEP June 8, 2012).
ERP Permitting Authority
Section 373.413(1) provides in pertinent part that:
the governing board [of the water management district] and the [Department of Environmental Protection] may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district.
Section 373.4131, which establishes the creation and implementation of statewide ERP rules, provides in pertinent
part that:
The department shall initiate rulemaking to adopt, in coordination with the water management districts, statewide environmental resource permitting rules governing the construction, alteration, operation, maintenance, repair, abandonment, and removal of any stormwater management system, dam, impoundment, reservoir,
32
appurtenant work, works, or any combination thereof, under this part.
* * *
(2)(a) Upon adoption of the rules, the water management districts shall implement the rules without the need for further rulemaking pursuant to s. 120.54. The rules adopted by the department pursuant to this section shall also be considered the rules of the water management districts. The districts and local governments shall have substantive jurisdiction to implement and interpret rules adopted by the department under this part, consistent with any guidance from the department, in any license or final order pursuant to s. 120.60 or
s. 120.57(1)(l).
Pursuant to its rulemaking authority, the Department of Environmental Protection (DEP) adopted rules 62-330.301 and 62-330.302, which establish standards applicable to this proceeding.
The ERP Applicant’s Handbook - Volume I has been adopted for use by the DEP and the state’s five water management districts. Fla. Admin. Code R. 62-330.010(4). The DEP and the water management districts “developed [the] Applicant’s Handbook to help persons understand the rules, procedures, standards, and criteria that apply to the environmental resource permit (ERP) program under Part IV of Chapter 373 of the Florida Statutes (F.S.).”
33
Application of the ERP Permitting Standards
Each pertinent provision of the ERP permitting rules and the A.H. will be set forth in the order in which it was presented in Petitioner’s identification of issues in the Joint Pre-hearing Stipulation, with a conclusion as to whether that standard was met.
Public Interest Test
Section 373.414(1) provides, in pertinent part, that:
As part of an applicant’s demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide . . . reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in
s. 373.421(1), is not contrary to the public interest.
Rule 62-330.302(1) provides, in pertinent part, that: In addition to the conditions in Rule 62-
330.301, F.A.C., to obtain an individual or conceptual approval permit under this chapter, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, repair, removal, and abandonment of a project:
(a) Located in, on, or over wetlands or other surface waters will not be contrary to the public interest . . . , as determined by balancing the following criteria as set forth in sections 10.2.3 through 10.2.3.7 of Volume I:
34
Whether the activities will adversely affect the public health, safety, or welfare or the property of others;
Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activities will be of a temporary or permanent nature;
Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and
The current condition and relative value of functions being performed by areas affected by the proposed activities.
The public interest criteria established in rule 62-330.302(1) are repeated almost verbatim in A.H. section 10.2.3.
Based on the Findings of Fact set forth herein, and applying and balancing the standards set forth in section 373.414(1), rule 62-330.302(1), and A.H. section 10.2.3, Petitioner failed to prove by a preponderance of competent and substantial evidence that the filling of the Alico Road wetlands would be contrary to the public interest.
35
Fish and Wildlife Functions
Rule 62-330.301(1)(d) provides that:
To obtain an individual or conceptual approval permit, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of the projects regulated under this chapter:
* * *
(d) Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.
A.H. section 10.1.1(a) provides, in pertinent part,
that:
Applicants must provide reasonable assurance that:
A regulated activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters [paragraph 62-330.301(1)(d), F.A.C.].
A.H. section 10.2.2, entitled Fish, Wildlife, Listed Species and their Habitats, provides, in pertinent part, that:
Pursuant to section 10.1.1(a), above, an applicant must provide reasonable assurances that a regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to:
The abundance and diversity of fish, wildlife, listed species, and the bald eagle (Halieaeetus leucocephalus), which is protected under the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
36
(April 30, 2004); a copy of the Act is in Appendix F; and
The habitat of fish, wildlife, and listed species.
In evaluating whether an applicant has provided reasonable assurances under these provisions, de minimis effects shall not be considered adverse for the purposes of this section.
As part of the assessment of the impacts of regulated activities upon fish and wildlife, the Agency will provide a copy of all notices of applications for individual (including conceptual approval) permits that propose regulated activities in, on, or over wetlands or other surface waters to the Florida Fish and Wildlife Conservation Commission (FWC) for review and comment, in accordance with Section 20.331(10), F.S. In addition, Agency staff may solicit comments from the FWC regarding other applications to assist in the assessment of potential impacts to fish and wildlife and their habitats, particularly with regard to listed species.
Based on the Findings of Fact set forth herein, Petitioner failed to prove by a preponderance of competent, substantial, and persuasive evidence, that the elimination of the Alico Road wetlands, as proposed, would have any adverse impacts to the value of functions provided to fish and wildlife and listed species, or to their habitats.
Practicable Design Modifications
A.H. section 10.2.1 provides, in pertinent part, that:
37
The following factors are considered in determining whether an application will be approved by the Agency: the degree of impact to wetland and other surface water functions caused by a proposed activity; whether the impact to these functions can be mitigated; and the practicability of design modifications for the site that could eliminate or reduce impacts to these functions, including alignment alternatives for a proposed linear system.
A.H. section 10.2.1.2 provides, in pertinent part, that:
The Agency will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when:
The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or
The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.
A.H. section 10.2.2.3 provides that:
The assessment of impacts expected as a result of proposed activities on the values of functions will be based on a review of scientific literature, ecologic and hydrologic information, and field inspection. When assessing the value of functions that any wetland or other surface water provides to fish, wildlife, and listed
38
species, the factors that the Agency will consider are:
Condition – this factor addresses whether the wetland or other surface water is in a high quality state or has been the subject of past alterations in hydrology, water quality, or vegetative composition. However, areas impacted by activities in violation of an Agency rule, order, or permit adopted or issued pursuant to Chapter 373, F.S., or Part VIII of Chapter 403, F.S. (1984 Supp.) as amended,
will be evaluated as if the activity had not occurred;
Hydrologic connection – this factor addresses the nature and degree of off-site connection, which may provide benefits to off-site water resources through detrital export, base flow maintenance, water quality enhancement or the provision of nursery habitat;
Uniqueness – this factor addresses the relative rarity of the wetland or other surface water and its floral and faunal components in relation to the surrounding regional landscape;
Location – this factor addresses the location of the wetland or other surface water in relation to its surroundings. In making this assessment, the Agency will consult reference materials such as the Florida Natural Areas Inventory, Comprehensive Plans, and maps created by governmental agencies identifying land with high ecological values; and
Fish and wildlife utilization – this factor addresses use of the wetland or other surface water for resting, feeding, breeding, nesting or denning by fish and wildlife, particularly those that are listed species.
39
Based on the Findings of Fact set forth herein, and applying the standards set forth in A.H. sections 10.2.1, 10.2.1.2, and 10.2.2.3, Petitioner failed to prove by a preponderance of competent and substantial evidence that Alico was required to implement practicable design modifications to reduce or eliminate impacts to the Alico Road wetlands.
UMAM Scores
Section 373.414(18) provides, in pertinent part,
that:
The department and each water management district responsible for implementation of the environmental resource permitting program, shall develop a uniform mitigation assessment method for wetlands and other surface waters. . . . The rule shall provide an exclusive and consistent process for determining the amount of mitigation required to offset impacts to wetlands and other surface waters, and, once effective, shall supersede all rules, ordinances, and variance procedures from ordinances that determine the amount of mitigation needed to offset such impacts. Once the department adopts the uniform mitigation assessment method by rule, the uniform mitigation assessment method shall be binding on the department, the water management districts, local governments, and any other governmental agencies and shall be the sole means to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to award and deduct mitigation bank credits. It
shall be recognized that any such method shall require the application of reasonable scientific judgment. The uniform mitigation assessment method must determine the value of functions provided by wetlands and other
40
surface waters considering the current conditions of these areas, utilization by fish and wildlife, location, uniqueness, and hydrologic connection, and, when applied to mitigation banks, the factors listed in
s. 373.4136(4).
* * *
(b) An entity which has received a mitigation bank permit prior to the adoption of the uniform mitigation assessment method shall have impact sites assessed, for the purpose of deducting bank credits, using the credit assessment method, including any functional assessment methodology, which was in place when the bank was permitted; unless the entity elects to have its credits redetermined, and thereafter have its credits deducted, using the uniform mitigation assessment method.
Rule 62-345.100(4) provides that:
This method is not intended to supersede or replace existing rules regarding cumulative impacts, the prevention of secondary impacts, reduction and elimination of impacts, or to determine the appropriateness of the type of mitigation proposed.
Rule 62-345.100(6) provides, in pertinent part, that:
(6) An entity that has received a mitigation bank permit issued by the Department of Environmental Protection or a water management district under Sections 373.4135 and 373.4136, F.S., prior to the adoption of this rule, or any mitigation bank with an application pending pursuant to subsection 62-345.100(7), F.A.C., and permitted under the applicable rules, ordinances and special acts in effect prior to the adoption of this rule, must have impact sites assessed for the purpose of deducting bank credits using the credit assessment method, including any functional
41
assessment methodology, that was in place when the bank was permitted.
Based on the Findings of Fact set forth herein, Petitioner failed to prove by a preponderance of competent and substantial evidence that there was error in Alico’s decision to forego reliance on UMAM as a measure of the functions of and impacts to the Alico Road wetlands.
Mitigation
A.H. section 10.3 provides, in pertinent part, that:
Mitigation as described in sections 10.3 through 10.3.8, below, is required only to offset the adverse impacts to the functions identified in sections 10.2 through 10.2.8.2, above, caused by regulated activities.
that: | 112. | A.H. section 10.3.1.3 provides, in pertinent part, Mitigation through participation in a mitigation bank shall be in accordance with |
Section 373.4136, F.S., and Chapter 62-342, F.A.C. (Mitigation Banks). | ||
113. | Section 373.4136(6) provides, in pertinent part, | |
that: | ||
The department or water management district shall establish a mitigation service area for each mitigation bank permit. . . . Except as provided herein, mitigation credits may be withdrawn and used only to offset adverse impacts in the mitigation service area. The boundaries of the mitigation service area shall depend upon the geographic area where the mitigation |
42
bank could reasonably be expected to offset adverse impacts. . . .
In determining the boundaries of the mitigation service area, the department or the water management district shall consider the characteristics, size, and location of the mitigation bank and, at a minimum, the extent to which the mitigation bank:
Contributes to a regional integrated ecological network;
Will significantly enhance the water quality or restoration of an offsite receiving water body that is designated as an Outstanding Florida Water, a Wild and Scenic River, an aquatic preserve, a water body designated in a plan approved pursuant to the Surface Water Improvement and Management Act, or a nationally designated estuarine preserve;
Will provide for the long-term viability of endangered or threatened species, or species of special concern;
Is consistent with the objectives of a regional management plan adopted or endorsed by the department or water management districts; and
Can reasonably be expected to offset specific types of wetland impacts within a specific geographic area. A mitigation bank need not be able to offset all expected impacts within its service area.
The department and water management districts shall use regional watersheds to guide the establishment of mitigation service areas. Drainage basins established pursuant to s. 373.414(8) may be used as regional watersheds when they are established based on the hydrological or ecological characteristics of the basin.
43
A mitigation service area may extend beyond the regional watershed in which the bank is located, into all or part of other regional watersheds when the mitigation bank has the ability to offset adverse impacts outside that regional watershed. . . .
Once a mitigation bank service area has been established by the department or a water management district for a mitigation bank, such service area shall be accepted by all water management districts, local governments, and the department.
Rule 62-342.600 provides, in pertinent part, that:
A Mitigation Service Area will be established for each Mitigation Bank in the Mitigation Bank Permit under the criteria of Section 373.4136(6), F.S. Except as provided herein, Mitigation Credits may only be withdrawn to offset adverse impacts in the Mitigation Service Area. The boundaries of the Mitigation Service Area shall depend upon the geographic area where the Mitigation Bank could reasonably be expected to offset adverse impacts.
A Mitigation Service Area may be larger than the regional watershed if the Mitigation Bank provides exceptional ecological value such that adverse impacts to wetlands outside the regional watershed could reasonably be expected to be adequately offset by the Mitigation Bank because of local ecological or hydrological conditions.
* * *
(6) When Mitigation Credits are applied to offset adverse impacts outside the regional watershed, the Mitigation Credit requirement shall be higher than that specified for mitigation on the project site if necessary to adequately offset the adverse impacts of the project, . . . when the impact being
44
offset is within the Mitigation Service Area of the Mitigation Bank to be used.
Petitioner did not object to the number of mitigation credits that were applied to offset the Alico Road wetland impacts, but focused her objections on whether out-of-basin credits were authorized pursuant to applicable mitigation and mitigation bank standards.
Based on the Findings of Fact set forth herein, Petitioner failed to prove by a preponderance of competent and substantial evidence that the mitigation proposed for the Alico Road wetland impacts is not allowable and adequate.
Secondary Impacts
Rule 62-330.301(1)(f) provides, in pertinent part, that “an applicant must provide reasonable assurance that the construction . . . of the projects regulated under this chapter:
Will not cause adverse secondary impacts to the water resources.”
“Secondary impacts are impacts caused not by the construction of the project itself, but by ‘other relevant activities very closely linked or causally related to the construction of the project.’” Deep Lagoon Boat Club, Ltd. v.
Sheridan, 784 So. 2d 1140, 1143 (Fla. 2d DCA 2001)(citing Fla. Power Corp. v. Dep’t of Envtl. Reg., 605 So. 2d 149, 152 (Fla.
45
1st DCA 1992) and Conservancy, Inc. v. A. Vernon Allen Builder,
Inc., 580 So. 2d 772, 777 (Fla. 1st DCA 1991)).
A.H. section 10.2.7 establishes four criteria for consideration in the assessment of whether secondary impacts will be reasonably expected to occur, and provides, in pertinent part, that:
An applicant shall provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters. . . .
An applicant shall provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of a proposed activity will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland dependent listed animal species for enabling existing nesting or denning by these species. . . .
In addition to evaluating the impacts in the area of any dredging and filling in, on, or over wetlands or other surface waters, and as part of the balancing review under section 10.2.3, above, the Agency will consider any other associated activities that are very closely linked and causally related to any proposed dredging or filling that have the potential to cause impacts to significant historical and archaeological resources.
An applicant shall provide reasonable assurance that the following future activities will not result in water quality violations or adverse impacts to the
46
functions of wetlands or other surface waters as described in section 10.2.2, above:
Additional phases or expansion of the proposed activity for which plans have been submitted to the Agency or other governmental agencies; and
On-site and off-site activities regulated under Part IV, Chapter 373, F.S., or activities described in Section 403.813(1), F.S., that are very closely linked and causally related to the proposed activity.
As part of this review, the Agency will also consider the impacts of the intended or reasonably expected uses of the future activities on water quality and wetland and other surface water functions.
In conducting the analysis under section (d)2, above, the Agency will
consider those future projects or activities that would not occur but for the proposed activity, including where the proposed activity would be considered a waste of resources should the future project or activities not be permitted.
The only secondary impact associated with the CenterPlace project as a whole is related to the sides of an access road that is proposed to cross a conservation easement along the boundary of the property with Florida Gulf Coast University. That secondary impact is unrelated to the Alico Road wetlands.
Based on the Findings of Fact set forth herein, Petitioner failed to prove by a preponderance of competent and
47
substantial evidence that the activities authorized by the ERP will cause adverse secondary impacts to the water resources.
Cumulative Impacts
Section 373.414(8)(a) provides, in pertinent part, that:
The governing board or the department, in deciding whether to grant or deny a permit for an activity regulated under this part, shall consider the cumulative impacts upon surface water and wetlands.
Rule 62-330.302(b) provides that:
In addition to the conditions in Rule 62-330.301, F.A.C., to obtain an individual or conceptual approval permit under this chapter, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, repair, removal, and abandonment of a project:
* * *
(b) Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in sections 10.2.8 through 10.2.8.2 of Volume I.
A.H. section 10.2.8 provides, in pertinent part,
that:
an applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. The impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in section 10.1.1(c), above, and by evaluating the
48
impacts to functions identified in section 10.2.2, above.
* * *
When adverse impacts to water quality or adverse impacts to the functions of wetlands and other surface waters, as referenced in the paragraphs above, are not fully offset within the same drainage basin as the impacts, then an applicant must provide reasonable assurance that the proposed activity, when considered with the following activities, will not result in unacceptable cumulative impacts to water quality or the functions of wetlands and other surface waters, within the same drainage basin:
Projects that are existing or activities regulated under Part IV, Chapter 373, F.S., that are under construction, or projects for which permits or determinations pursuant to Section 373.421, F.S., or Section 403.914, F.S. (1991), have been sought.
Activities that are under review, approved, or vested pursuant to Section 380.06, F.S., or other activities regulated under Part IV of Chapter 373, F.S., which may reasonably be expected to be located within wetlands or other surface waters, in the same drainage basin, based upon the comprehensive plans, adopted pursuant to Chapter 163, F.S., of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations.
Only those activities listed in sections (a) and (b), above, that have similar types of impacts (adverse effects) to those that will be caused by the proposed activity will be considered.
The cumulative impact evaluation is conducted using an assumption that
49
reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications.
As set forth in ERP A.H. section 10.2.8.1:
Cumulative impacts are considered unacceptable when the proposed activity, considered in conjunction with the past, present, and future activities as described in section 10.2.8, above, would then result in a violation of state water quality standards as set forth in section 10.1.1(c) above, or significant adverse impacts to functions of wetlands or other surface waters identified in section 10.2.2, above, within the same drainage basin when considering the basin as a whole. This analysis asks the question whether the proposed system, considered in conjunction with past, present, and future activities, would be the proverbial “straw that breaks the camel’s back” regarding the above referenced water quality or wetland and other surface water functions in the basin.
Based on the Findings of Fact set forth herein, Petitioner failed to prove by a preponderance of competent and substantial evidence that the filling of the Alico Road wetlands as proposed will have unacceptable cumulative impacts upon wetlands and other surface waters.
Reasonable Assurance
Rule 62-330.301 provides in pertinent part, that:
To obtain an individual or conceptual approval permit, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal,
50
or abandonment of the projects regulated under this chapter:
Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
* * *
(d) Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
* * *
(f) Will not cause adverse secondary impacts to the water resources. ;
Rule 62-330.302(b) provides that:
In addition to the conditions in Rule 62-330.301, F.A.C., to obtain an individual or conceptual approval permit under this chapter, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, repair, removal, and abandonment of a project:
* * *
(b) Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in sections 10.2.8 through 10.2.8.2 of Volume I.
For the reasons set forth herein, Petitioner did not prove by a preponderance of competent and substantial evidence that Alico failed to provide reasonable assurance that the activities authorized by the ERP will not cause adverse water quantity impacts to receiving waters and adjacent lands; will
51
not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not cause adverse secondary impacts to the water resources; or will not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Conclusion
Petitioner did not meet her burden of ultimate persuasion that the activities authorized by the ERP will be harmful to the water resources of the District.
Applying the standards of reasonable assurance to the Findings of Fact in this case, it is concluded that reasonable assurances have been provided by Alico that the activities to be authorized by the ERP will meet the applicable standards applied by the District, including section 373.414, rules 62-330.301 and 62-330.302, and the corresponding provisions of the Applicant’s Handbook, and that the Environmental Resource Permit No. 36- 03568-P-05 should therefore be issued.
By agreement of Alico and the District, without objection by Petitioner, and as supported by the evidence in this proceeding, the following modifications to the January 12, 2015, Environmental Resource Permit Staff Report should be incorporated into the final Permit Modification No. 36-03568-P- 05:
52
The first two full paragraphs of page 3 of 24 of the Individual Environmental Resource Permit Staff Report are modified as follows:
Basin 10 consists of 15.36 acres of multi- family development and associated infrastructure. Water quality is provided within this basin prior to discharge to Lake 5/6 North. Additional water quality treatment volume for 3.41 acres of offsite impervious area is also provided in this basin; the additional impervious area is for the potential future widening of Alico Road.
Basin 11 consists of 464.73 acres of commercial and multi-family development and associated infrastructure. Water quality is provided within this basin prior to discharge to Lake 5/6 North. Additional water quality treatment volume for 29.09 acres of offsite impervious area is also provided in this basin; the additional impervious area is for the potential future widening of Alico Road and the potential CR 951 extension. This basin contains areas that are proposed for both conceptual and construction improvements under this application. Please see plan sheet C4.0 within Exhibit 2.0 for the boundaries of the conceptual and construction areas.
Construction of the final site development improvements will require a permit modification prior to construction within the conceptually approved sub-basins 11-0, 11-E, 11-F, 11-G, 11-H, and 11-1; however,
rough filling and grading of the conceptual areas is included as a part of the construction authorization.
Following those modified paragraphs, the following paragraph is added:
The application includes a request for construction approval for the discharge of
53
treated runoff from 44.3 acres of potential future widening of Alico Road and 70.9 acres of the potential expansion of County Road 951 into Lake 5/6 North for water quantity attenuation only. Water quality treatment for the roadway expansion shall be permitted under separate applications.
Finally, the first paragraph on page 6 of 24 is modified as follows:
The project provides the required water quality treatment volume based on 1.0 inch over the basin area for Basin 10 and 2.5 inches times the percentage impervious coverage for Basin 11. Additional water quality treatment volume is also being provided in the Centerplace SWMS for 32.5 acres of offsite impervious area associated with future road projects. Water quality is provided in the dry retention areas and wet detention lakes prior to discharge to the existing recreational lake known as Lake 5/6 North. The design of the storm water management system includes an additional fifty percent above the treatment volume for the project site as required per Section 4.2 of the Applicant's Handbook Volume II to provide additional assurances that the proposed project will not contribute to impairments of the quality of the downstream receiving waters.
Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Environmental Resource Permit No. 36-03568-P-05 to Alico West Fund, LLC, on the terms and conditions set forth in the proposed Environmental Resource Permit Modification No. 36-
54
03568-P-05, the Individual Environmental Resource Permit Staff Report (as modified herein), and the complete Joint Application for Individual and Conceptual Environmental Resource Permit.
DONE AND ENTERED this 3rd day of November, 2015, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2015.
ENDNOTES
1/ There is no development authorized by the Permit for the conceptual approval area. However, the conceptual approval area is to be developed in the future as part of the CenterPlace development. Therefore, for purposes of calculating the capacity for the water management system, Alico assigned a land use to the conceptual approval area of similar intensity to that anticipated, i.e., a research-and-development-type land use with commercial buildings and parking lots, and applied that use in the design calculations. However, there are no buildings or parking lots proposed for construction in the conceptual approval area as part of the proposed Permit, and any such development will go through an additional permit modification before construction.
2/ Although there was no evidence that bears or Florida Panthers used the Alico Road wetlands, there was evidence that they used
55
other areas within the 886.04 acre CenterPlace development. As a result, the proposed Permit includes a Florida Black Bear and Florida Panther Education Plan for the purpose of addressing any potential conflicts between those species, construction and maintenance personnel, and future residents of the CenterPlace project area.
3/ Alico is proposing to purchase 12.87 credits from the Panther Island mitigation bank, and 0.52 credits from the Big Cypress mitigation bank. Of the 0.52 Big Cypress credits, 0.13 are intended to offset the direct and secondary impacts of an access road that is proposed to cross an existing Florida Gulf Coast University conservation easement. The remaining 0.39 Big Cypress credits were added to the 12.87 Panther Island credits, resulting in a total of 13.26 functional loss credits calculated as necessary to offset the direct wetland impacts associated with the CenterPlace development. Petitioner’s argument in opposition to the Alico mitigation plan for the Alico Road wetlands was limited to whether out-of-basin mitigation was appropriate, and did not suggest that the amount of mitigation was insufficient.
COPIES FURNISHED:
Neale E. Montgomery, Esquire Pavese Law Firm
1833 Hendry Street
Fort Myers, Florida 33902 (eServed)
Keith L. Williams, Esquire
South Florida Water Management District Mail Stop Code 1410
3301 Gun Club Road
West Palm Beach, Florida 33406 (eServed)
Ralf G. Brookes, Esquire Ralf Brookes Attorney Suite 107
1217 East Cape Coral Parkway Cape Coral, Florida 33904 (eServed)
56
Kenneth G. Oertel, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110
Tallahassee, Florida 32302 (eServed)
Timothy Joseph Perry, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110
Tallahassee, Florida 32302 (eServed)
Gregory L. Urbancic, Esquire Coleman, Yovanovich and Koester, P.A.
Northern Trust Bank Building, Suite 300 4001 Tamiami Trail North
Naples, Florida 34103
Jennifer D. Brown, Esquire
South Florida Water Management District Mail Stop Code 1410
3301 Gun Club Road
West Palm Beach, Florida 33406 (eServed)
Kevin S. Hennessy, Esquire Lewis, Longman and Walker, P.A. Suite 620
101 Riverfront Boulevard Bradenton, Florida 34205 (eServed)
Matthew B. Taylor, Esquire Lewis, Longman and Walker, P.A. Suite 620
101 Riverfront Boulevard Bradenton, Florida 34205 (eServed)
Elizabeth Somerstein Adler, Esquire Greenspoon Marder P.A.
Suite 1800
200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)
57
Glenn N. Smith, Esquire Greenspoon Marder, P.A. Suite 1500
200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)
Justin S. Brenner, Esquire Hogan Lovells US LLP
Suite 2700
600 Brickell Avenue
Miami, Florida 33131 (eServed)
Martin L. Steinberg, Esquire Hogan Lovells US LLP
Suite 2700
600 Brickell Avenue
Miami, Florida 33131 (eServed)
Blake C. Guillory, Executive Director South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416-4680 (eServed)
Kirk Burns, General Counsel
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416-4680 (eServed)
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 should be filed with the agency that will issue the Final Order in this case.
58
MODIFICATIONS TO THE JANUARY 12, 2015 ENVIRONMENTAL RESOURCE PERMIT STAFF REPORT
The first two full paragraphs of page 3 of 24 of the Individual Environmental Resource Permit Staff Report are modified as follows:
Basin 10 consists of 15.36 acres of multi-family development and associated infrastructure. Water quality is provided within this basin prior to discharge to Lake 5/6 North. Additional water quality treatment volume for 3.41 acres of offsite impervious area is also provided in this basin; the additional impervious area is for the potential future widening of Alico Road.
Basin 11 consists of 464.73 acres of commercial and multi-family development and associated infrastructure. Water quality is provided within this basin prior to discharge to Lake 5/6 North. Additional water quality treatment volume for 29.09 acres of offsite impervious area is also provided in this basin; the additional impervious area is for the potential future widening of Alico Road and the potential CR 951 extension. This basin contains areas that are proposed for both conceptual and construction improvements under this application. Please see plan sheet C4.0 within Exhibit 2.0 for the boundaries of the conceptual and construction areas. Construction of the final site development improvements will require a permit modification prior to construction within the conceptually approved sub-basins 11-0, 11-E, 11- F, 11-G, 11-H, and 11-1; however, rough filling and grading of the conceptual areas is included as a part of the construction authorization.
Following those modified paragraphs, the following paragraph is added:
The application includes a request for construction approval for the discharge of 53 treated runoff from 44.3 acres of potential future widening of Alico Road and 70.9 acres of the potential expansion of County Road 951 into Lake 5/6 North for water quantity attenuation only. Water quality treatment for the roadway expansion shall be permitted under separate applications.
Finally, the first paragraph on page 6 of 24 is modified as follows:
The project provides the required water quality treatment volume based on
1.0 inch over the basin area for Basin 10 and 2.5 inches times the percentage impervious coverage for Basin 11. Additional water quality treatment volume is also being provided in the Centerplace SWMS for 32.5 acres of offsite impervious area associated with future road projects. Water quality is provided in the dry retention areas and wet detention lakes prior to discharge to the existing recreational lake known as Lake 5/6 North. The design of the storm water management system includes an additional fifty percent above the treatment volume for the project site as required per Section 4.2 of the Applicant's Handbook Volume II to provide additional assurances that the proposed project will not contribute to impairments of the quality of the downstream receiving waters.
NOTICE OF RIGHTS
As required by Sections 120.569 and 120.60(3), Fla. Stat., the following is notice of the opportunities which may be available for administrative hearing or judicial review when the substantial interests of a party are determined by an agency. Please note that this Notice of Rights is not intended to provide legal advice. Not all of the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights.
A person whose substantial interests are or may be affected by the South Florida Water Management District’s (SFWMD or District) action has the right to request an administrative hearing on that action pursuant to Sections 120.569 and 120.57, Fla. Stat. Persons seeking a hearing on a SFWMD decision which affects or may affect their substantial interests shall file a petition for hearing with the Office of the District Clerk of the SFWMD, in accordance with the filing instructions set forth herein, within 21 days of receipt of written notice of the decision, unless one of the following shorter time periods apply: (1) within 14 days of the notice of consolidated intent to grant or deny concurrently reviewed applications for environmental resource permits and use of sovereign submerged lands pursuant to Section 373.427, Fla. Stat.; or (2) within 14 days of service of an Administrative Order pursuant to Section 373.119(1), Fla. Stat. "Receipt of written notice of agency decision" means receipt of written notice through mail, electronic mail, or posting that the SFWMD has or intends to take final agency action, or publication of notice that the SFWMD has or intends to take final agency action. Any person who receives written notice of a SFWMD decision and fails to file a written request for hearing within the timeframe described above waives the right to request a hearing on that decision.
If the District takes final agency action which materially differs from the noticed intended agency decision, persons who may be substantially affected shall, unless otherwise provided by law, have an additional Rule 28-106.111, Fla. Admin. Code, point of entry.
Any person to whom an emergency order is directed pursuant to Section 373.119(2), Fla. Stat., shall comply therewith immediately, but on petition to the board shall be afforded a hearing as soon as possible.
A person may file a request for an extension of time for filing a petition. The SFWMD may, for good cause, grant the request. Requests for extension of time must be filed with the SFWMD prior to the deadline for filing a petition for hearing. Such requests for extension shall contain a certificate that the moving party has consulted with all other parties concerning the extension and that the SFWMD and any other parties agree to or oppose the extension. A timely request for an extension of time shall toll the running of the time period for filing a petition until the request is acted upon.
A petition for administrative hearing must be filed with the Office of the District Clerk of the SFWMD. Filings with the Office of the District Clerk may be made by mail, hand-delivery, or e-mail. Filings by facsimile will not be accepted. A petition for administrative hearing or other document is deemed filed upon receipt during normal business hours by the Office of the District Clerk at SFWMD headquarters in West Palm Beach, Florida. The District’s normal business hours are 8:00 a.m. – 5:00 p.m., excluding weekends and District holidays. Any document received by the Office of the District Clerk after 5:00 p.m. shall be deemed filed as of 8:00 a.m. on the next regular business day. Additional filing instructions are as follows:
Filings by mail must be addressed to the Office of the District Clerk, P.O. Box 24680, West Palm Beach, Florida 33416.
Rev. 06/21/15 1
Filings by hand-delivery must be delivered to the Office of the District Clerk. Delivery of a petition to the SFWMD's security desk does not constitute filing. It will be necessary to request that the SFWMD's security officer contact the Office of the District Clerk. An employee of the SFWMD's Clerk's office will receive and file the petition.
Filings by e-mail must be transmitted to the Office of the District Clerk at clerk@sfwmd.gov. The filing date for a document transmitted by electronic mail shall be the date the Office of the District Clerk receives the complete document. A party who files a document by e-mail shall (1) represent that the original physically signed document will be retained by that party for the duration of the proceeding and of any subsequent appeal or subsequent proceeding in that cause and that the party shall produce it upon the request of other parties; and (2) be responsible for any delay, disruption, or interruption of the electronic signals and accepts the full risk that the document may not be properly filed.
Pursuant to Sections 120.54(5)(b)4. and 120.569(2)(c), Fla. Stat., and Rules 28-106.201 and 28-106.301, Fla. Admin. Code, initiation of an administrative hearing shall be made by written petition to the SFWMD in legible form and on 8 1/2 by 11 inch white paper. All petitions shall contain:
Identification of the action being contested, including the permit number, application number, SFWMD file number or any other SFWMD identification number, if known.
The name, address, any email address, any facsimile number, and telephone number of the petitioner and petitioner’s representative, if any.
An explanation of how the petitioner’s substantial interests will be affected by the agency determination.
A statement of when and how the petitioner received notice of the SFWMD’s decision.
A statement of all disputed issues of material fact. If there are none, the petition must so indicate.
A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the SFWMD’s proposed action.
A statement of the specific rules or statutes the petitioner contends require reversal or modification of the SFWMD’s proposed action.
If disputed issues of material fact exist, the statement must also include an explanation of how the alleged facts relate to the specific rules or statutes.
A statement of the relief sought by the petitioner, stating precisely the action the petitioner wishes the SFWMD to take with respect to the SFWMD’s proposed action.
The procedures for pursuing mediation are set forth in Section 120.573, Fla. Stat., and Rules 28-106.111 and 28-106.401–.405, Fla. Admin. Code. The SFWMD is not proposing mediation for this agency action under Section 120.573, Fla. Stat., at this time.
Pursuant to Section 120.68, Fla. Stat., and in accordance with Florida Rule of Appellate Procedure 9.110, a party who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's final decision by filing a notice of appeal with the Office of the District Clerk of the SFWMD in accordance with the filing instructions set forth herein within 30 days of rendition of the order to be reviewed, and by filing a copy of the notice with the clerk of the appropriate district court of appeal.
Rev. 06/21/15 2
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 2015 | Agency Final Order |
