M. SYMONDS, )
vs. ) CASE NO. 92-5699
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case commencing on January 12, 1993, in Fort Myers, Florida, and concluding in Tallahassee on March 2, 1993.
For Petitioner: Kenneth G. Oertel, Esquire
Claire E. Lardner, Esquire
Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Whether the conditions of a proposed permit modification issued by the Department of Environmental Regulation to C. M. Symonds on May 1, 1991, are appropriate.
On July 8, 1988, the Department of Environmental Regulation (DER) issued permit number 361366329, authorizing C. M. Symonds (Symonds) to conduct activities in jurisdictional wetlands and requiring both on-site and off-site mitigation. The off-site mitigation was to have consisted of removal of exotic vegetation from land owned by Lee County. Prior to issuance of the permit, Lee County denied Symonds permission to conduct the off-site mitigation on the county land. The DER was apparently not notified prior to the issuance of the permit that Symonds would not be able to comply with the mitigation required by the permit. Subsequent to issuance of the permit and the untimely notification to the DER that the mitigation requirements could not be met, the parties have attempted to reach agreement on a substitute mitigation plan.
Pursuant to Symonds' request to modify the plan, the DER, on May 1, 1991, granted permission to modify the permit, but attached conditions additional to those included in the original July, 1988 permit. A number of extensions of time to file a petition for hearing were issued by the DER. Eventually, Symonds filed a petition for hearing which resulted in this proceeding.
At the hearing, Symonds presented the testimony of four witnesses and offered into evidence exhibits numbered 1-3, 21, and 27-33. The DER presented the testimony of two witnesses and offered into evidence exhibits numbered 1, 8, and 12-15. All exhibits were admitted into evidence. The prehearing stipulation filed by the parties was admitted as a Hearing Officer exhibit. The stipulated facts contained therein have been adopted as set forth below.
No transcript of the hearing was filed. The DER filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
By letter dated February 26, 1993 (after commencement and four days prior to the scheduled conclusion of the hearing in this case) Symonds, through counsel, submitted a letter to DER which states as follows:
This proceeding involves an application to modify the permit issued on July 8, 1988, in order to substitute mitigation that has proven to be impossible, as required by the original permit....
After issuance of that permit, Mr. Symonds applied to the Department to substitute certain mitigation for that required in the permit. This application was eventually subject to a Notice of Intent to issue, with conditions. Upon reviewing the conditions the applicant determined they were unreasonable and could not be accepted. In order to find a more suitable alternative, we applied, on September 24, 1991, for other alternative mitigation. That request is the subject of the proceeding before DOAH.
To avoid confusion, the purpose of this letter is to notify you that the applicant officially withdraws each application to modify this permit that may be considered to be still pending, except for the request dated September 24, 1991.
As stated below, there is no indication in the letter of September 24, 1991, that Symonds was filing a separate application for modification of the original permit. Applicable fees remain unpaid.
Symonds point of entry to seek an administrative hearing was specifically provided through the DER Notice of Intent to modify permit of May 1, 1991.
Subsequent to the DER notice, Symonds made repeated requests for extensions of the time within which to petition for a hearing and eventually filed a petition for a hearing on September 21, 1992.
Based on the February 26 letter, the DER filed a motion to dismiss the petition for hearing as moot and to relinquish jurisdiction. A response to the DER's motion was filed on March 16, 1993. Based upon the findings of fact set forth herein, it is unnecessary to rule on the motion.
The Department of Environmental Regulation (DER) issued Permit No. 361366329 (permit) to C. M. Symonds (Symonds) on July 8, 1988. The permit authorized Symonds to construct a 60-unit residential development in Lee County, Florida.
The development site is within Ten-Mile Basin on the north side of Penzance Boulevard, and includes jurisdictional wetlands classified as Class III waters of the state.
The permit authorized placement of 11,643 cubic yards of fill on 10.8 acres of jurisdictional wetlands, excavation of 36,060 cubic yards of material from 2.7 acres of jurisdictional wetlands to create a stormwater treatment lake, and construction of a boardwalk and overlook.
The 13.5 acres of lost wetlands were cypress prairie which had previously been cleared and was being invaded by Melaleuca. Although previously impacted, the lost wetlands were functional.
Mitigation for the lost 13.5 acre wetlands was required by the permit. Because of the poor quality of the impacted wetlands a low mitigation ratio of
0.6 : 1.0 was applied by the DER.
Application of the mitigation ratio resulted in a requirement of 8.1 acres of on-site creation/enhancement mitigation to offset the lost wetlands. The on-site mitigation involved re-contouring and re-vegetating the former on- site cypress strand and cypress prairie.
Because only 6.4 on-site acres were available for creation/enhancement purposes, off-site mitigation equivalent to the remaining 1.7 acres was required. Application of the mitigation ratio to the remaining required on-site mitigation resulted in 2.8 acres of remaining impact not offset.
The permit required off-site mitigation through removal of invasive exotic vegetation in 30.56 acres of the Lee County-owned Six-Mile Cypress Swamp. The off-site mitigation requirement was apparently the result of negotiations between the DER and Symonds.
The 30.56 acre Six-Mile Cypress Swamp off-site mitigation area is composed of cypress prairie, comparable to the on-site lost wetlands for which mitigation was not complete. Removal of invasive exotics would help to enhance the functions of the impacted wetlands in Six-Mile Cypress Swamp.
Specific Condition 12 of the permit provided that the initial exotic species removal was to take place prior to or concurrently with project construction and be followed up six months later by a second exotic species removal.
At the time the DER and Symonds were negotiating conditions under which the July, 1988, permit could be issued, Symonds was under the impression that Lee County officials would allow his enhancement of the county-owned land.
Shortly before the permit was issued, Symonds became aware that the county would not allow the mitigation to be performed on county land. There is no evidence that, prior to the issuance of the permit, Symonds notified the DER that he would not be able to fulfill the mitigation requirement to which the parties had agreed.
A total of 13.5 acres of jurisdictional wetlands were filled and excavated for the creation of the residential development. The on-site mitigation was completed. The off-site mitigation has not been performed. The residential development has been completed.
Prior to January 3, 1989, the DER had a mitigation policy as identified by applicable policy memoranda.
On January 3, 1989, the DER mitigation rule (Rule 17-312, Part III, Florida Administrative Code) became effective.
In 1990, the DER completed an evaluation of the effectiveness of wetlands loss mitigation through enhancement. Enhancement mitigation is considered effective when the enhanced wetlands becomes self-sustaining and replaces the lost functions of the natural wetlands.
The DER review indicates that although enhancement through exotic species removal can be beneficial, the basic problem of over-drainage is not addressed. Over-drainage of an area results in alteration of hydroperiod and encourages the opportunistic invasion of exotic vegetation into an area as native vegetation reacts negatively to the altered hydroperiod.
Over-drainage may be corrected through restoration of the normal hydroperiod of the affected area. Commonly, installation or adjustment of weir structures results in raised water levels and rehydration of previously over- drained areas.
Forested wetlands, including cypress prairie, are slow growth systems. Enhancement of such systems may take several years to complete and may require long term maintenance and monitoring to become successful.
On October 12, 1990, Symonds' agent, Environmental Services Unlimited (ESU), submitted to the DER an off-site mitigation plan for DER approval. The mitigation proposed included removal of Melaleuca and Brazilian Pepper from 7.5 acres of the Six Mile Cypress Preserve, replanting with native vegetation, and a six month follow up removal of exotics.
By notice of May 1, 1991, the DER indicated it intended to grant the October 12 request to modify the original permit by providing for off-site mitigation through the enhancement of the 7.5 acres in the Six-Mile Cypress Swamp. Additionally, the DER also indicated it intended to further modify the permit by the addition of proposed specific conditions delineating certain success criteria which would indicate when the forested wetlands enhancement could be considered successful.
The DER permit modification provided that Specific Condition 12 would be amended to require periodic follow-up exotic removal until certain "success
criteria" were met. The "success criteria" were set forth in Specific Condition 14, which states as follows:
The forested wetlands enhancement shall be considered successful when the following criteria are met:
Wetland ground cover and shrub vegetation and wetland canopy tree species shall be reproducing naturally;
The tree cover shall exceed 50 per cent of the total area and in no area of an acre in size shall the tree cover be less than 50 per cent total cover. Cover measurement shall be restricted to (1) those trees exceeding the herbaceous stratum in height and (2) those indigenous species that are wetland vegetation listed in Florida Administrative Code Rule
17-301.400;
The vegetation monitoring data from the herb and shrub strata show that not less than
95 per cent of the vegetation cover is comprised of Florida Administrative Code Rule 17-301.400 listed species. If species occurring in the herb and shrub strata are not listed in Florida Administrative Code Rule
17-301.400, then they shall be species considered to be obligate hydrophytes (species requiring a wetland environment in some or all stages of the life cycle); and
Nuisance and exotic species, such as cattail and Melaleuca, shall be limited to one per cent or less of the total cover.
Specific Condition 15 provided as follows:
The permittee recognizes that it has a continuing obligation to complete the on-site and off-site mitigation and to correct any unsuccessful mitigation attempts beyond the expiration date of the permit and agrees to execute an agreement with the Department evidencing that obligation within 60 days of the issuance of the permit modification.
The amended conditions are not acceptable to Symonds. On May 13, 1991, ESU, on Symonds' behalf, filed a request for a 60 day extension to file a petition for hearing "so that we may adequately work out specific conditions of the modification with the permitting staff." Symonds' agents, ESU, continued negotiating with DER to try to agree on mutually acceptable specific conditions for inclusion in the modification.
On July 31, 1991, Symonds, ESU, and the DER permitting staff met in Tallahassee and discussed resolution of the matter and modification of the language of the specific conditions set forth in the proposed modification.
On September 27, 1991, the DER received a letter, dated September 24, 1991, from ESU with a revised plan to clear Melaleuca and Schinus from a 16 acre area of the Six-Mile Cypress Slough Preserve, with a six month follow up treatment. Although the letter clearly indicates it is the result of the earlier meeting, there is no evidence that the proposal set forth in the letter reflects any agreement between the parties.
The 16 acre mitigation site addressed by the September 24 letter is immediately south of Penzance Road at the intersection of Penzance Road and Six Mile Cypress Parkway. According to the letter, heavily invaded areas would be cleared with equipment intended to minimize soil impaction and disturbance, less heavily invaded land would be hand treated and cleared, and a single six month follow-up would be performed.
Symonds has not provided reasonable assurances that the mitigation plan related to the 16 acre area of the Six-Mile Cypress Slough Preserve will be successful. The evidence fails to establish reasonable assurances that the suggested mitigation will become self-sustaining or will successfully replace the former function of the lost wetlands on the project site.
The evidence fail to establish that an appropriate hydroperiod to rehydrate the wetlands will be sustained. Although the installation of weirs at Daniels Road and in the area of Six Mile Cypress Slough and Ten Mile Canal is allegedly producing a hydroperiod of about 250-260 days, the weirs are located south of the proposed 16 acre mitigation area. The evidence fails to establish that the weirs will beneficially impact the relevant site in such manner as to increase the opportunity for success of the plan.
The Lee County Board of County Commissioners and the Florida Department of Agriculture, Division of Forestry, on April 18, 1991, executed a management agreement providing for the restoration and maintenance of certain lands within the Six Mile Cypress Slough Preserve for a period of five years. This agreement fails to provide reasonable assurances that the functions of the wetlands lost through development of the Symonds project will be mitigated. Symonds is not party to the agreement and is without authority to control or influence the execution, continuance, or extension of the agreement.
Maintenance and monitoring of the 16 acre site would require at least a period of two to seven years. Symonds declines to commit to the time period which would be required. There is no reliable evidence which would establish that the long term maintenance and monitoring required for successful enhancement of the 16 acre site would be provided.
Symonds asserts that the letter dated September 24, 1991, constitutes a separate application for modification of the permit, and that the DER's failure to grant or deny the "application" must result in default approval of the "application".
The evidence fails to support the assertion. The letter of September
24 is clearly a follow-up letter based upon continuing negotiations between the DER and ESU as to the October 12, 1990 modification request. The letter references the previous meeting between the DER staff and ESU personnel. Further, Symonds has submitted none of the fees which are required upon the filing of such an application for modification of a permit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
In permit proceedings, including variance, exception, exemption, site specific alternative criteria, or other similar proceedings, the applicant shall have the burden of establishing, by a preponderance of the evidence, entitlement to the requested licence, permit, or relief. Rule 17-103.130, Florida Administrative Code. Department of Transportation v. J.W.C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.
Mitigation is a method by which applications, otherwise unpermittable under the provisions of Section 403.918, Florida Statutes, may be permitted. The goal of mitigation is to offset expected adverse impacts of the project. Rule 17-312.330, Florida Administrative Code.
In determining whether a mitigation proposal is acceptable, it is necessary to first determine the probability that the proposed mitigation will offset the actual adverse impacts of the dredging and filling. In making this determination, the Department must consider the likelihood that the mitigation will be successful. Rule 17-312.340, Florida Administrative Code. The permit applicant shall provide the DER with reasonable assurances that the mitigation shall meet the success criteria in Rule 17-312.350, Florida Administrative Code.
As to the terms and conditions of the mitigation proposal set forth in the request for permit modification submitted by Symonds, the evidence is insufficient to provide reasonable assurances that the mitigation proposal will be successful. Accordingly, the request to modify the permit should be denied.
