vs.
Case No. 17-4081
D.R. HORTON, INC., OSCEOLA COUNTY, AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
Pursuant to notice, a final hearing was held in this case on October 31 through November 2, 2017, in Orlando, Florida, before Francine M. Ffolkes, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
Wayne E. Flowers, Esquire John Wallace, Esquire
Lewis, Longman and Walker, P.A. Suite 150
Julia G. Lomonico, Esquire Maricruz R. Fincher, Esquire
For Respondent D.R. Horton, Inc.:
John J. Fumero, Esquire Thomas Mullin, Esquire Nason Yeager Gerson,
White & Lioce, P.A. Suite 210
Frank M. Townsend, Esquire Shannon Marie Charles, Esquire Osceola County Attorney's Office Suite 4700
The issues in this case are: 1) whether the Petitioner, Southport Ranch, LLC (Petitioner), is a substantially affected person with standing to challenge the Respondent, South Florida Water Management District’s (District) intent to issue Environmental Resource Permit (Mitigation Banking)
Number 49-00007-M to the Respondents, D.R. Horton, Inc., and Osceola County (Applicants); and 2) the number of potential mitigation bank credits that the District should award to the Applicants.
On April 8, 2016, the Applicants submitted a request to construct and operate a 747.91-acre mitigation bank (Twin Oaks Mitigation Bank) in Osceola County. The District announced its
intent to issue the Mitigation Banking Permit to the Applicants on May 9, 2017. On May 31, the Petitioner and Gary Lee filed a Petition for Administrative Hearing that the District dismissed with leave to amend. The Petitioner subsequently filed an Amended Petition (Gary Lee did not file an amended petition).
On July 18, the District referred to DOAH the Amended Petition along with the Respondent, D.R. Horton, Inc.’s Motion to Dismiss and the Petitioner’s Response in Opposition. The Motion to Dismiss was denied by Order dated July 25. On October 3, this case was transferred to the undersigned.
The parties filed the Joint Prehearing Stipulation on October 23, in which the factual and legal issues were narrowed. The Respondent, D.R. Horton, Inc., filed its Amended Motion in Limine in which the District joined. The undersigned denied the motion without prejudice at the beginning of the final hearing.
At the final hearing, the parties offered Joint Exhibits 1 through 7, which were admitted into evidence. The Petitioner presented the fact testimony of Gary Lee and Robert Mindick, and the expert testimony of Beverly Birkitt, Stuart Cullen, P.E., and Carl Salafrio. The Petitioner’s Exhibits 1 through 9, 14, 17, 18, and 20 through 22 were admitted into evidence. The Applicants presented the expert testimony of John Lesman and Steven Boyd, P.E. The Respondent, D.R. Horton, Inc.’s, Exhibits 1 through 17 were admitted into evidence. The District
presented the expert testimony of Mark Daron, P.E., and Mark Ady. The District’s Exhibits 1 through 5 were admitted into evidence.
A five-volume Transcript of the hearing was filed with DOAH on November 30, 2017. Proposed findings of fact and conclusions of law were filed by the parties on January 12, 2018, and they have been considered in the preparation of this Recommended Order.
The District is a government entity created pursuant to chapter 25270 of the 1949 Laws of Florida, and operates as a multi-purpose water management district. The District has the authority and duty to exercise regulatory jurisdiction over the Twin Oaks Mitigation Bank (the Project) under the provisions of part IV, chapter 373, Florida Statutes, and Titles 40E and 62 of the Florida Administrative Code.
The Respondent, D.R. Horton, Inc. (D.R. Horton), is a Florida corporation and the owner of two of three parcels that comprise the Project. D.R. Horton is the largest homebuilder in the Unites States with a large full-time staff in Florida and around the country. The Respondent, Osceola County, is a political subdivision of the State of Florida and the owner of one of three parcels that comprise the Project.
The Petitioner, Southport Ranch, LLC, is a Florida limited liability corporation that owns 7,000 acres of real property located within the Lake Tohopekaliga (Lake Toho), Lake Gentry, and Reedy Creek drainage basins in Osceola County. Petitioner’s Substantial Interests
The real property owned and managed by the Petitioner is called Southport Ranch (Ranch). The Ranch straddles three drainage basins, which are sub-basins within the Kissimmee River Basin. A small portion of the Ranch touches Lake Toho and the eastern boundary of the Ranch extends to the centerline of the
C-35 Canal. Water flows south from Lake Toho through the C-35 Canal and into Ranch property through culverts.
Extensive wetland resources are located throughout the Ranch, including forested, freshwater, and herbaceous wetlands. The Ranch is populated by a wide array of aquatic and wetland dependent animal species, including several species that are listed as threatened or endangered by the state or federal government.
The Petitioner is owned by a series of trusts established by George Andrew Kelley (Kelley) who passed away in 2014. Kelley was a fourth-generation cattle rancher. Gary Lee manages the Ranch operations and is also the trustee of the George Andrew Kelley Family Trust. Mr. Lee testified that the Petitioner’s primary management objective, consistent with the
direction of Kelley prior to his death, is preservation and conservation. This includes preserving and protecting existing wetland habitat on the Ranch.
Historically, the primary land use on the Ranch was cattle ranching and that activity continues on a portion of the Ranch property. The other land use is the Southport Ranch Mitigation Bank (SRMB), a wetland mitigation bank permitted by the District in 2010. The SRMB is operated by a separate company in partnership with the Petitioner, and they are co- permittees on the mitigation bank permit.
Mr. Lee testified to certain concerns with the Project and the number of proposed mitigation credits. Mainly that, if the Project does not achieve success as a mitigation bank, it could be detrimental to existing wetlands, such as those on the Ranch, which support aquatic and avian species. In addition, there could be adverse regional impact in the form of a net loss of wetlands. Mr. Lee considers the Ranch to be a “very[,] very[,] very unique piece of property” and “we’re trying to save it.”
The Petitioner’s expert, Carl Salafrio, testified that utilization of a mitigation credit or credits that do not completely offset the loss of wetland function caused by a permitted wetland impact within the Kissimmee River watershed or the three sub-basins in which the Ranch property is located,
would adversely impact aquatic and wetland species present on the Ranch.
The Project and Vicinity
The Applicants propose to construct and operate the Project along the northeast side of Lake Toho in Osceola County. The Project consists of three mitigation areas (MA) with a total of 747.91 acres. MA1 is the northern parcel and comprises
202.94 acres that are currently drained by an off-site pump that pushes water to the west into Lake Toho. MA1 is bounded on the north by the Partin Canal, to the west by Kings Highway, and to the east by Neptune Road. D.R. Horton owns MA1. An existing conservation easement (CE) encompasses 45.26 acres of MA1. The CE is associated with the prior issuance of an Environmental Resource Permit (ERP) for Phase 1A of a residential development known as the Toho Preserve (now known as Kindred).
MA2 is south of MA1 and the southwestern region of MA2 abuts the northeastern shore of Lake Toho. MA2 is bounded to the east by Macy Island Road. MA2 comprises 283.82 acres that are currently drained to the south by a pump into Lake Toho. MA2 is owned by D.R. Horton.
MA3 is east of MA2 and comprises 261.15 acres that drain through a culvert under Macy Island Road into MA2 and south into Lake Toho. MA3 is owned by Osceola County and the County will be the sole user of the mitigation credits generated
by MA3. MA3 is bounded on the east by the C-31 canal and to the south by a park owned by Osceola County.
The service area for the mitigation bank consists of the Lake Toho, Reedy Creek, Lake Gentry, Lake Hart, Shingle Creek, Boggy Creek, Lake Hatchineha, and Lake Kissimmee drainage basins within the jurisdiction of the District. The service area also includes portions of the Southern St. Johns River basin, which is within the jurisdictional boundary of the Southwest Florida Water Management District, and additional areas within the boundaries of the St. Johns River Water Management District.
The Project site was historically littoral areas of Lake Toho that were separated from the Lake by drainage modifications, such as those made in the 1950s by the Central and South Florida Flood Control Project. The drainage modifications included features, such as the C-31 Canal, the Partin Canal, dikes, ditches, pumps, culverts and roads. In particular, the large agricultural pumps at MA1 and MA2 drain the mitigation areas and pushes water into Lake Toho to maintain the acreages as pasture for cattle grazing.
The Applicants propose to construct the Project through a combination of wetland restoration, wetland and upland enhancement, conservation easements, and implementation of hydrologic improvements. The Project will increase hydroperiods
in targeted wetlands to mimic the historic hydrologic regime and restore natural sheet flow patterns that existed prior to the drainage modifications. Rainfall and runoff from adjacent developments will serve to hydrate the three mitigation areas.
Successful restoration of the natural hydroperiods will promote the growth and maintenance of desired wetland vegetation communities in the mitigation bank.
D.R. Horton will manage and operate the Project until it meets the success criteria documented in the permit. Once the Project achieves success, Osceola County will operate and maintain the Project in perpetuity. Osceola County has implemented an Environmental Land Conservation program (SAVE Ordinance) designed to acquire and manage, in perpetuity, conservation lands.
Proposed Enhancement and Restoration
The Project would restore the upland and wetland habitats historically a part of, and hydrologically connected to, Lake Toho. The mitigation activities will consist of various methods for the targeted community types. These include hydrologic enhancement and restoration, regrading wetland areas and ditches to match natural grades, prescriptive burning, elimination of nuisance and exotic plant species, and vegetation enhancement and restoration. The Project would eliminate
incompatible land uses within the mitigation areas, such as cattle grazing, hay production, and sod farming.
The Project would reestablish wetland community structures and functions similar to the natural, historic wetland communities within the mitigation service area. The target community types and required hydrologic enhancement were also identified by the Applicants’ expert, John Lesman.
Mr. Lesman testified that he consulted resources, such as Ecosystems of Florida and the Florida Natural Areas Inventory. For example, portions of the upland pasture areas would be restored to slough marsh and wet prairie communities by increasing the elevation and duration of seasonal high water levels.
Planting is proposed in upland enhancement areas because of a lack of viable seed source for natural recruitment of native upland species. For the wetland enhancement and restoration areas, existing wetland vegetation is a viable seed source to facilitate natural recruitment. Mr. Lesman testified that natural recruitment is a generally-accepted means to establish wetland plant species. The Petitioner’s expert, Beverly Birkitt, questioned whether more plantings should be required. However, if natural recruitment is not successful, the Applicants would conduct supplemental plantings in order to meet vegetation success criteria.
The Project would utilize herbicidal and mechanical control of nuisance and exotic vegetation consistent with the Nuisance and Exotic Vegetation Control Plan. Prescribed burns are also used to control exotic and nuisance species in pyrogenic communities within mitigation banks.
Ms. Birkitt opined that prescribed burns should not occur adjacent to existing and proposed residential development. However, prescribed burns are a common activity carried out by licensed professionals using methods established and approved by the Florida Forest Service. The Prescribed Burning Management Plan requires safeguards when there is a wildland-urban interface. Safeguards include permanent fire lines, educational outreach to adjacent residential communities, and local partnerships with local fire rescue agencies, the Florida Forest Service, and Osceola County staff.
The Project’s mitigation activities would restore habitats for listed species, aquatic-dependent and wetland- dependent species, and a variety of other wildlife. Lake Toho and surrounding areas serve as a primary foraging and nesting refuge for the everglades snail kite. It is also habitat for various endangered and threatened species, such as the whooping crane, limpkin, snowy egret, white ibis, little blue heron, tricolored heron, and bald eagle.
The Applicants modified the application to include a 25-foot buffer along specified portions of the perimeter areas of MA1, MA2 and MA3. Those specified portions have adjacent development or the potential for adjacent development, which is a risk for all mitigation banks. The Applicants also removed the acreage within the 25-foot buffer areas from consideration to generate mitigation credits. However, that acreage would still be enhanced or restored as part of the Project’s mitigation activities. A 25-foot buffer is not proposed for those areas that have existing physical buffers or legal restrictions that preclude future development.
Proposed Hydrologic Improvements
The Project encompasses numerous activities designed to restore hydrologic conditions at the mitigation areas including removal of certain drainage features and structures. Surface water from MA1 will flow through a broad crested weir, a series of pipes and a drop inlet with operable boards to the Partin Canal, which is directly connected to Lake Toho. The existing culvert under Kings Highway that currently allows MA1 to drain to the off-site pump would be plugged with concrete to allow hydroperiod restoration. The pump at the south end of MA2 that currently drains MA2 and MA3 would be removed and replaced with a broad crested weir, a series of pipes and a drop inlet with operable boards that will outfall to Lake Toho. The boards
are light-weight aluminum and are easily installed or removed by a single individual. The weir structure would detain water in MA2 and MA3 causing re-hydration of these historic wetland systems. The installations of the control structures within MA1 and MA2 would reestablish the hydrologic connections between Lake Toho and MA1, MA2 and MA3.
To properly assess and implement the hydrologic improvements, the Applicants developed a hydrologic model. The primary factors considered in order to model the proposed condition annual hydrograph were annual rainfall and evaporation from the water body areas. Sixteen years of average annual data for both rainfall and evaporation were obtained from the University of Florida – Institute of Food and Animal Sciences Department, Lake Alfred Experiment Station. The rainfall data was averaged to develop average daily rainfall totals for a hypothetical year. This rainfall data was entered into the Advanced ICPR model for generation of annual runoff hydrographs entering each of the on-site wetlands. Advanced ICPR is an industry standard model for stormwater management systems in large basins, routinely accepted by the District for permit applications.
The water levels of Lake Toho are managed on a lake regulation schedule operated by the District. Lake Toho water levels influence hydrology in and around the Project site. The
water levels of Lake Toho were factored into the Applicants’ hydrologic model. The Applicants used a 10-year average of water levels within Lake Toho. Surface water elevation data for Lake Toho was obtained from data provided by the District for the years 2001 through 2011. For the purpose of modeling the average annual conditions, the annual data was averaged with the 2004 data being excluded. The Petitioner’s expert engineer, Stuart Cullen, opined that the Lake Toho regulation schedule should have been considered instead of actual water levels.
However, the evidence showed that the water levels frequently varied from the regulation schedule. Thus, the use of actual water levels within Lake Toho for modeling purposes yielded more accurate results.
The Applicants’ model demonstrated post-development results using data for the existing conditions of the Project site. Mr. Cullen opined that the existing conditions used for this permit application should have been the “pumps off” scenario provided in the Conceptual ERP for the Kindred project because the District referenced the Kindred Conceptual ERP in the permit documents for this Project. However, Mr. Boyd, who was the engineer for the Kindred Conceptual ERP, testified that it included a pumps-off scenario only to show that even if the pumps failed, the Kindred development would not flood. This is a “worst case scenario” demonstration and is different than
existing conditions, which are the conditions as they exist on the site today, not how they are permitted to exist in the future. Mr. Boyd explained that he listed the “pumps on” scenario as the existing condition because the off-site pump, which is not controlled by the Applicants, currently runs as needed to keep the property drained and completely dry. When the Applicants block the culvert connected to the off-site pump as part of the Project’s proposed activities, the pump will no longer affect the property. This is the “pumps off” scenario, which in this instance, only occurs post-development.
Hydrologic modeling data and results demonstrated that water levels within the Project would mimic a traditional wet season/dry season fluctuation as opposed to the inverse hydroperiod of Lake Toho. The operable water control structures would be modified on a seasonal basis. In the dry season, the boards would be removed to lower the water levels, mimicking natural dry season water levels. Conversely, the boards would be in place during the wet season to raise the water levels in the wetlands, thereby creating natural wet season water levels. The model demonstrates that the system design would immediately provide the hydrologic enhancement necessary to meet the Applicants’ ecological goals.
Uniform Mitigation Assessment Method
The Uniform Mitigation Assessment Method (UMAM) provides a standardized wetland assessment methodology that may be applied across community types. UMAM is used to calculate the credits that may be awarded to a mitigation bank.
UMAM involves a two-part analysis. Part I is a qualitative characterization of the property by assessment areas. An assessment area is all or part of a mitigation site that is sufficiently homogeneous in character or mitigation benefits to be assessed as a single unit. See Fla. Admin. Code
R. 62-345.200(1). Part II utilizes the scoring criteria established under the rules to evaluate each assessment area’s “current” condition (prior to the mitigation) to its “with mitigation” condition. The resulting difference represents the improvement of ecological value or the ecological lift, referred to in the rule as the “delta.” See Fla. Admin. Code R. 62-
345.500.
Ms. Birkitt agreed with almost all the Applicants’ “current” condition scores and also with all of the Applicants’ “with mitigation” condition scores related to upland enhancement. Ms. Birkitt focused on the “with mitigation” scores for wetland enhancement and wetland restoration.
Ms. Birkitt testified that the ecological lift reflected by the UMAM numbers for the three wetland function indicators could not
be achieved. The major reason given by Ms. Birkitt was the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. Other reasons included the potential for development adjacent to the mitigation areas, the limited benefit attributed to prescribed burns, and the lack of planting in certain assessment areas.
Part II scoring under the UMAM rule has three categories of indicators of wetland function: location and landscape support, water environment, and community structure. For location and landscape support, the value of functions provided by mitigation assessment areas are influenced by the landscape position of the assessment area, its relationship with adjacent and regional surrounding areas, including interconnectivity that benefits wildlife. For water environment, the quantity of water in an assessment area, including the timing, frequency, depth and duration of the inundation or saturation, and flow characteristics are considered. Hydrologic requirements and hydrologic alterations are evaluated to determine the effect of these conditions on the functions performed by the assessment area. For community structure, each mitigation assessment area is evaluated with regard to its characteristic community structure, including vegetation and habitat. By way of example, a score of 10 means the mitigation assessment area, based on reasonable scientific
judgment, is capable of reaching 100 percent of beneficial ecological functions. A score of 5 means, that the assessment area is limited in its ability to perform beneficial ecological functions to 50 percent of the optimal value. See Fla. Admin. Code R. 62-345.500.
The Petitioner’s experts identified the main hydrologic issue as the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. As discussed above, the Applicants demonstrated that the system design supports the hydrologic environment necessary to provide functional gains consistent with the UMAM scoring.
The potential for development would not decrease the value of functions gained by the enhancement and restoration activities. The 25-foot buffer around the mitigation areas adds an additional layer of protection and any future developments must address potential impacts to the Project before obtaining a construction permit.
The important role of prescribed burns in mitigation banks is addressed above. Any necessary supplemental plantings would be carried out by the Applicants in accordance with the vegetation success criteria.
Ms. Birkitt also testified that the Applicants’ “with mitigation” condition score for approximately 45 acres in MA1 is not appropriate due to the existing conservation easement and
its requirements. As explained below, the Applicants took this into account in the “current” condition score (i.e. “without mitigation). In addition, the Project will provide hydrologic enhancement that is not currently provided through the conservation easement. The Project’s success criteria require a lower percentage of nuisance and exotic vegetation, which increases plant cover of appropriate and desirable species.
Also, the Applicants will provide prescribed fire and wildlife management for all communities.
Time Lag and Risk
The time lag associated with mitigation is the period of time between when the functions are lost at an impact site and when the site has achieved the outcome scored in Part II of UMAM. See Fla. Admin. Code R. 62-345.600. There is no time lag
if the mitigation fully offsets the anticipated impacts prior to or at the time of the impacts. A score of one is appropriate for activity-based releases that will occur in less than one year.
Ms. Birkitt testified that the Applicants should have applied a time lag score greater than one to the initial and activity-based releases because these activities do not provide a functional gain and, therefore, the credits released will not actually offset any impacts. However, the applicable rule applies a time lag score of one (T-factor of 1) to activities
that reach success within one year. The evidence shows that the initial and activity-based releases will occur in less than one year.
Any amount of risk above de minimus reduces the ecological value of the mitigation assessment area. A score of one would most often be applied to mitigation conducted in an ecologically viable landscape and deemed successful or clearly trending towards success prior to impacts. Ms. Birkitt admitted that placing the Project site under a conservation easement and installing the hydrologic improvements should benefit the Project’s hydrology, but opined that no benefit would actually occur. As discussed above, the hydrologic improvements are designed to provide an instantaneous and clear trend towards success.
Mitigation Credits
The Mitigation Bank Permit proposes to authorize
388.13 wetland mitigation credits. D.R. Horton would receive
99.56 credits for MA1 and 150.92 credits for MA2. Osceola County would receive 137.65 credits for MA3.
The Applicants evaluated the quality of the wetlands by performing the functional assessment of the Project site in the “current” condition and then the functional assessment of the Project site in the “with mitigation” condition. This evaluation method yielded the quality of the restoration and
enhancement. The Applicants further evaluated the resulting quality against the total acreage for the Project. In total, the Applicants propose restoring 183.18 acres of wetlands and enhancing 542.52 acres of wetlands and associated uplands. It is “exceptional” and “unique” to have so much wetland restoration in a mitigation bank project.
The Applicants recognized that the District previously issued a permit requiring a conservation easement on approximately 45 acres in MA1. The proposed success criteria from that preservation were taken into account in the “current” condition score for that assessment area. Osceola County acquired MA3 with funds through the land conservation program established by its SAVE Ordinance. The SAVE Ordinance places minor limits on the area. According to Osceola County’s Parks and Public Lands Director, Robert Mindick, the County’s management plans and the County’s SAVE Ordinance do not create the same land restrictions as a conversation easement. Nonetheless, the Applicants effectively treated the SAVE Ordinance as a conservation easement when assessing the UMAM scores for MA3. This was a more conservative approach.
Credit Releases
The Project would receive a 20 percent credit release upon recordation of conservation easements and providing the financial assurances required by the Permit. This initial
release is a generally accepted practice, is considered a reasonable approach and would occur in less than one year.
The Project would receive a 15 percent credit release based on successful construction and implementation of the hydrologic improvements. This activity-based release is generally accepted, is considered a reasonable approach, and would occur in less than one year.
The remainder of the mitigation credits would only be released upon the Project attaining full success. The Project is structured so that 65 percent of its credits cannot be released until attaining full success. This structure is atypical, but puts the burden on the Applicants to perform in order to realize 65 percent of its credits. The Credit Release Schedule is reasonable and consistent with applicable rule criteria.
Mitigation credits generated by MA3 may only be used by Osceola County in conformance with the limitations imposed by section 373.414, Florida Statutes. The ledger for mitigation credits will differentiate between MA1 and MA2 and MA3. Attorney’s Fees
The Petitioner did not participate in this proceeding for an improper purpose as defined in section 120.595(1), Florida Statutes. As found in paragraphs 6 and 8 above, the
Petitioner’s concerns were not purely economic as alleged by
D.R. Horton.
The Petitioner’s pleadings, starting with its Petition and Amended Petition, were not interposed for an improper purpose as defined in section 120.569(2)(e). Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 6, 8 and 9 above, and does not prove an improper or frivolous purpose. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns.
The Petitioner’s Amended Petition was not interposed for a frivolous purpose as defined in section 57.105, Florida Statutes. Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 4 through 9 above and does not prove that the pleading was frivolous. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns.
Ultimate Findings
The Applicants presented a prima facie case demonstrating compliance with all applicable permitting criteria for the Mitigation Banking Permit.
The Petitioner did not prove its case in opposition by a preponderance of the competent substantial evidence.
However, the Petitioner did not participate in this proceeding for an improper or frivolous purpose.
CONCLUSIONS OF LAW
Standing
The Petitioner presented competent evidence to show it has substantial interests that could reasonably be affected by the proposed Mitigation Bank Permit. Therefore, the Petitioner has standing to challenge its proposed issuance. See St. Johns
Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051, 1054 (Fla. 5th DCA 2011); Palm Beach Cnty. Envtl.
Coalition v. Dep’t of Envtl. Prot., 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009).
Burden of Proof
The Petitioner challenged issuance of a mitigation bank permit issued under chapter 373. Therefore, section 120.569(2)(p) is applicable. Under this provision, the permit applicant must present a prima facie case demonstrating entitlement to the permit. Thereafter, a third party challenging the issuance of the permit has the burden "of ultimate persuasion" and the burden "of going forward to prove the case in opposition to the . . . permit." If the third party fails to carry its burden, the applicant prevails by virtue of its prima facie case.
Permitting Standard
Issuance of the permit is dependent upon there being reasonable assurance that the mitigation bank will meet applicable statutory and regulatory standards. See
§ 373.4136(1), Fla. Stat.
Reasonable assurance means "a substantial likelihood that the project will be successfully implemented." See Metro.
Dade Cnty. 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.
The Applicants presented a prima facie case of entitlement to the permit. Therefore, the burden of ultimate persuasion is on the Petitioner to prove its case in opposition to the permit by a preponderance of the competent and substantial evidence. Having failed to do so, the Applicants must prevail.
The Applicants provided reasonable assurance that all relevant criteria in Florida Administrative Code Chapters 62- 330, 62-342, and 62-345, for the issuance of an environmental resource permit and establishment of a mitigation bank were satisfied.
Attorney’s Fees
The Petitioner did not participate in this proceeding for improper or frivolous purposes or file frivolous pleadings as defined in sections 120.595(1), 120.569(2)(e), and 57.105(1). See Friends of Nassau Cnty. v. Nassau Cnty., 752 So. 2d 42, 50
(Fla. 1st DCA 2000)(“We have never held that opposing issuance of a permit . . . is improper simply because economic considerations contribute to a party’s decision to act.”). Mere co-ownership of SRMB by the Petitioner does not prove that the Petition and Amended Petition were not filed to advance legitimate environmental concerns. See Mercedes Lighting & Elec. Supply v. State, 560 So. 2d 272, 279 (Fla. 1st DCA
1990)(“The hearing officer was presented with competent and substantial evidence on both sides of the issue, and with competent and thorough legal briefing by counsel. That the hearing officer chose to adopt [Respondents’] position over [Petitioner’s] should not be the basis for [sanctions]”).
RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Mitigation Bank Permit Number 49-00007-M, as modified, subject to the conditions set forth in the Staff Report; and
ORDERED that D.R. Horton’s request for reasonable attorney’s fees and costs under sections 57.105, 120.595, and 120.569, Florida Statutes, is denied.
DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida.
FRANCINE M. FFOLKES
Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2018.
Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A. Suite 150
Frank M. Townsend, Esquire Osceola County Attorney's Office Suite 4700
Julia G. Lomonico, Esquire
Maricruz R. Fincher, Esquire
Bridgette Nicole Thornton, Esquire South Florida Water Management District 3301 Gun Club Road
John W. Bizanes, Esquire Nason, Yeager, Gerson, White
& Lioce, P.A.
John J. Fumero, Esquire
Nason Yeager Gerson White & Lioce, P.A. 750 Park of Commerce Boulevard, Suite 210 Boca Raton, Florida 33487
Thomas F. Mullin, Esquire
Nason Yeager Gerson White & Lioce, P.A. Suite 210
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.
