STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIP PROPERTIES LIMITED PARTNERSHIP,)

)

Petitioner, )

)

vs. ) CASE NOS. 93-2950RU

) 93-3367

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

FINAL ORDER (#93-2950RU)

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled consolidted cases on August 9, 10 and 11, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald M. Schirtzer, Esquire

Martha H. Formella, Esquire

R. Duke Woodson, Esquire FOLEY & LARDNER

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

For Respondent: Douglas H. MacLaughlin, Esquire

John L. Chaves, Esquire

Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2449

STATEMENT OF THE ISSUES

The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.

PRELIMINARY STATEMENT

This final order is entered in DOAH #93-2950RU, a case arising from the Department of Environmental Protection's (DEP) May 17, 1993 notice of denial of Petitioner's application for dredge and fill permit, and Petitioner's timely request for a formal hearing on that denial.

Along with a request for formal hearing pursuant to section 120.57(1), F.S., Petitioner filed on May 28, 1993, a petition for administrative determination of violation of rule making requirement pursuant to section 120.535(2), F.S. The section 120.57(1), F.S., case was assigned DOAH #93-3367. At the parties' request, the two cases were consolidated for hearing. The recommended order in #93-3367 is being issued this same date.

At the hearing, Petitioner presented the testimony of William F. Grey (qualified as expert in assessment and evaluation of wetlands) and Farid J. Tawill, P.E. (qualified as an expert in civil engineering, including stormwater and mitigation design). The following exhibits were offered by Petitioner and were received in evidence: Petitioner's #2, 13, 14 a) and b), 15-19, 21, 28,

29, 34, 39, 43, 44, 46, 51, 57, 63-66, 69, 77, 78, 80, 85, 88-91, 97, 101-103,

109, 112, 113, 115, 118, and 121-127. Exhibits #121-127 are depositions respectively, of John Abendroth, Richard Cantrell, Terrance Zabel, Barbara Bess, Leila Nordase, Edwin Bridges and Don Medellin. Petitioner's exhibits #3 and 4, pleadings and orders from two Central Florida Wetland Society civil actions, were marked for identification but were rejected as irrelevant.

The DEP presented testimony of (designated area of expertise in which witness was qualified): Edwin Bridges (botany and wetland jurisdiction), Don Medellin (dredge and fill impacts and wetland mitigation), Terrance John Zabel (environmental impacts of dredge and fill), Ann Redmond (wetland ecology and mitigation), Richard Cantrell (wetland jurisdiction determination), and John Abendroth (environmental effects of dredge and fill). Petitioner objected to the tender of any Department witnesses as expert since they had not been so designated as required by the prehearing order dated June 11, 1993. The Petitioner's objection was obviated by the opportunity given by the Hearing Officer to present additional witnesses later if Petitioner determined it was actually prejudiced by the lack of notice as to areas of expertise. This opportunity was not invoked. Petitioner's other objections as to the expertise of Terry Zabel and John Abendroth were overruled, but were considered in the weighing of those witnesses' testimony.

DEP's five exhibits, marked "DEP #1-5" were received in evidence.

The transcript of hearing was prepared and filed, and on September 22, 1993, both parties submitted proposed final orders. The findings of fact proposed by each are substantially adopted here.

FINDINGS OF FACT

1. Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida.

   
   

2. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will

   act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP.

   
   

3. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department.

   
   

4. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C.

   
   

5. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition.

   
   

6. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success.

   
   

7. DEP is presently in the process of developing rules to further address most aspects of mitigation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.535(2), F.S. (1992 Supp.)

   
   

9. Section 120.535(1), F.S. (1992 Supp.) provides that rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under section 120.52(16) shall be adopted by the rulemaking procedure provided in section 120.54 as soon as feasible and practicable. Section 120.535(2)(a), F.S. (1992 Supp.) provides:

   
   

   (2)(a) Any person substantially affected by an agency statement may seek an administrative determination that the statement violates subsection (1). A petition for an administrative determination of an agency statement shall be in writing and shall state with particularity facts sufficient to show:

   1. That the person is substantially affected by the statement.

   2. That the statement constitutes a rule under s. 120.52(16), in which case the petition shall include the text of the statement or a description of the statement.

   3. That the agency has not adopted the statement by the rulemaking procedure provided in s. 120.54.

      
      

10. Although the petition at issue here properly pled the standing of SIP as an applicant for dredge and fill permit, that standing was not proven. The evidence instead reflects that the policy statements in the memoranda attached to the petition have been primarily embodied in rules legally promulgated to guide the agency's discretion in reviewing mitigation proposals. SIP failed to prove that the agency actually relied on the memoranda at issue.

ORDER

Based on the foregoing, it is hereby, ORDERED:

The Petition in case #93-2950RU is DISMISSED.

DONE AND ORDERED this 11th day of January, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire

R. Duke Woodson, Esquire FOLEY & LARDNER

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire

Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIP PROPERTIES LIMITED PARTNERSHIP,)

)

Petitioner, )

)

vs. ) CASE NOS. 93-2950RU

) 93-3367

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER (DOAH CASE #93-3367)

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled consolidated cases on August 9, 10 and 11, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald M. Schirtzer, Esquire

Martha H. Formella, Esquire

R. Duke Woodson, Esquire FOLEY & LARDNER

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

For Respondent: Douglas H. MacLaughlin, Esquire

John L. Chaves, Esquire

Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2449

STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner is entitled to a dredge and fill permit. Disposition of this general issue requires a determination of certain ancillary issues such as the appropriate extent of agency wetlands jurisdiction, the function of those wetlands, the likely impact by the proposed project, and the adequacy of mitigation proposed by the Petitioner.

PRELIMINARY STATEMENT

This recommended order is entered in DOAH #93-3367, a case arising from the Department of Environmental Protection's (DEP) May 17, 1993 notice of denial of Petitioner's application for dredge and fill permit, and Petitioner's timely request for a formal hearing on that denial.

Along with a request for formal hearing pursuant to section 120.57(1), F.S., Petitioner filed on May 28, 1993, a petition for administrative determination of violation of rule making requirements pursuant to section 120.535(2), F.S. That case was assigned DOAH #93-2950RU. At the parties' request, the two cases were consolidated for hearing. The final order in #93- 2950RU is being issued this same date.

At the hearing, Petitioner presented the testimony of William F. Grey (qualified as expert in assessment and evaluation of wetlands) and Farid J. Tawill, P.E. (qualified as an expert in civil engineering, including stormwater and mitigation design). The following exhibits were offered by Petitioner and were received in evidence: Petitioner's #2, 13, 14 a) and b), 15-19, 21, 28,

29, 34, 39, 43, 44, 46, 51, 57, 63-66, 69, 77, 78, 80, 85, 88-91, 97, 101-103,

109, 112, 113, 115, 118, and 121-127. Exhibits #121-127 are depositions respectively, of John Abendroth, Richard Cantrell, Terrance Zabel, Barbara Bess, Leila Nordase, Edwin Bridges and Don Medellin. Petitioner's exhibits #3 and 4, pleadings and orders from two Central Florida Wetland Society civil actions, were marked for identification but were rejected as irrelevant.

The DEP presented testimony of (with area of expertise in which witness was qualified): Edwin Bridges (botany and wetland jurisdiction), Don Medellin (dredge and fill impacts and wetland mitigation), Terrance John Zabel (environmental impacts of dredge and fill), Ann Redmond (wetland ecology and mitigation), Richard Cantrell (wetland jurisdiction determination), and John Abendroth (environmental effects of dredge and fill). Petitioner objected to the tender of any department witnesses as expert since they had not been so designated as required by the prehearing order dated June 11, 1993.

Petitioner's objection was obviated by the opportunity given by the Hearing Officer to present additional witnesses later if Petitioner determined it was actually prejudiced by the lack of notice as to areas of expertise. This opportunity was not invoked. Petitioner's other objections as to the expertise of Terry Zabel and John Abendroth were overruled, but were considered in the weighing of those witnesses' testimony.

DEP's five exhibits, marked "DEP #1-5" were received in evidence.

The transcript of hearing was prepared and filed, and on September 22, 1993 both parties submitted proposed recommended orders. The findings of fact proposed by each are addressed in the attached Appendix.

FINDINGS OF FACT

Petitioner

1. Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida.

   
   

   The Site

   
   

2. Once part of a large forested wetland system, the site itself and surrounding areas have been severely impacted by urban development. The subject site, commercially zoned, is at the southeast corner of the intersection of Kirkman Road (State Road 435, a four-laned major thoroughfare with a wide median strip) and L.B. McLeod Road. Commercial, industrial and residential development surround most of the site.

3. The site is bounded on the east by Shingle Creek Canal. Turkey Lake lies to the west, across Kirkman Road. The site is bisected at its lower third by an east-west, man-made canal, Turkey Lake Feeder Canal, which connects Turkey Lake to Shingle Creek. There is an old drainage ditch in the northeast corner of the property with spoil berms which sever the wetlands in that corner from any connection with waters of the state.

   
   

4. Most of the site north of the Turkey Lake Feeder Canal is vegetated; the southern portion of the site, south of the canal, has been cleared and cut and remains mostly unvegetated.

   
   

   The Project

   
   

5. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP.

   
   

6. SIP also proposes to preserve one acre of wetlands north of the canal and to create 7.21 acres of forested wetlands south of the canal. The preserved acre and a portion of the created wetlands are functional elements of SIP's stormwater management plan.

   
   

   The Process

   
   

7. In 1985, SIP or the site's then-owner contacted the agency regarding development of the site. As a result of that contact, Barbara Bess, a staff person from the agency's district office, visited the site, and from the vantage of the south bank of the Turkey Lake Feeder Canal determined that there did not appear to be a continuum of vegetation from the waterline up and into the wetlands to the north of the canal. From that cursory examination and from information on water levels from Dr. William Grey, SIP's environmental consultant, Ms. Bess determined that the department's jurisdiction did not extend beyond the waters of the canal.

   
   

8. Ms. Bess reiterated her determination in a letter to Dr. Grey dated February 16, 1989. She also provided the caveat that her determination was simply an informal jurisdictional determination and was non-binding.

   
   

9. In 1990, the Central Florida Wetlands Society sued the agency pursuant to section 403.412, F.S., alleging that it was remiss in its administration and enforcement of the Warren S. Henderson Wetlands Protection Act of 1984. In preparation for defense of that action, the agency's jurisdictional evaluation section conducted a broad field inspection of sites in southwest Orlando, including the SIP parcel.

   
   

10. Edwin Bridges spent about thirty minutes on the site in December 1990. From the culverts under Kirkman Road eastward along Turkey Lake Feeder Canal he noted a solid berm separating wetlands on the south side of the canal and no berm on the north side. He found wetland vegetation extending from the edge of the canal landward. He determined the wetlands immediately north of Turkey Lake Feeder Canal were contiguous to the canal along most of its length.

11. In order to proceed with development, on March 26, 1991, SIP submitted a short form dredge and fill permit application to the agency's district office in Orlando. A short-form application is generally appropriate when the maximum wetland impact does not exceed 10 acres.

    
    

12. SIP considered that it was safe to assume less than 10 acres impact because it had already, on March 1, 1991, received its permit from the U.S. Army Corps of Engineers (ACOE) for development based on the same project and mitigation described in the DEP application. ACOE typically has broader jurisdiction than the department because it has a more extensive plant list and does not require a connection to waters of the state to assert jurisdiction over wetlands.

    
    

13. On May 8, 1991, agency staff from Tallahassee and from the Orlando district office went back to the site. Edwin Bridges and others spent about three hours on the property. Based on the vegetation, Mr. Bridges determined that DEP's jurisdiction extended beyond the 9.68 acres already flagged, and from that it was assumed that more than ten acres of wetlands jurisdiction were at issue. A letter dated May 9, 1991, from Barbara Bess to SIP's consultant informed the applicant that a standard form and additional processing fee were required. The letter also suggested that the applicant seek a binding jurisdictional statement from the agency since there were some "major discrepancies concerning the wetland boundary" (Pet. Ex. #77).

    
    

    Jurisdiction Determined

    
    

14. Binding jurisdictional statements are not required, and SIP chose to resubmit its application on the standard form, on January 27, 1992. It provided substantially the same information as provided in the short form, including its contention that the ACOE jurisdictional limit of 9.07 acres was the maximum potential wetland area which was affected by the proposed improvements.

    
    

15. One final and much more thorough jurisdictional inspection was completed on August 25, 1992. Representatives of the applicant and the department participated. In preparation for the inspection, Dr. Grey set out preliminary flags in accordance with DEP's instruction regarding jurisdictional analysis, using vegetation dominance pursuant to chapter 17-301, F.A.C., the "A" test.

    
    

16. Turkey Lake Feeder Canal was determined to be the waters of the state to which the wetlands were connected. There was no physical separation between the vegetation of the forested wetland on the north side and the canal. A substantial berm on the south side blocked any connection between the canal and the wetlands south of the canal. There were some minor adjustments to the flagged line, but the DEP staff basically accepted the line as the agency's jurisdictional boundaries. The determination resulted in a meandering line between the old ditch in the north end and the canal to the south. The jurisdictional wetlands lie primarily within the west and central portion of that area, and comprise approximately ten acres.

    
    

17. While the primary component of the inspection involved vegetation analysis, at various points soils probes were taken by the DEP staff. Those probes found heavily saturated hydric soils. One area included standing water, possibly because August is generally considered a wet month. With the exception of a small area, a dominance of wetland species was found in the canopy. Those

    species included cypress, sweetbay, dahoon holly, loblolly bay, swamp bay and red maple. In the small area of pine and oak canopy, the agency "dropped strata" and found primarily ferns in heavily saturated hydric soils.

    
    

18. The jurisdictional determination made in August 1992 was appropriate and was the proper basis for review of SIP's application. Although SIP acceded to the line for purpose of that review it was not precluded from presenting evidence to contest the extent of claimed jurisdiction. That is, no "binding" statement was sought nor issued.

    
    

19. During the application review process SIP never submitted a modified proposal for the jurisdictional line established in August 1992. It did, however, submit groundwater table readings taken in 1990 and in July 1993, shortly before the hearing. The 1990 report by Jammal and Associates, Inc., observes:

    
    

    The 100-year floodplain for this area is at elevation +97.5 feet NGVD and encompasses the majority of the site. The groundwater levels initially measured during the course of our study were at depths of about 3 feet below ground surface. However, the Standard Penetration Test borings which were performed one week later after heavy rainfall, measured the groundwater table much nearer to the ground surface.

    (Pet. Ex. #57, p.4)

    
    

    The July 1993 study by L.J. Nodarse and Associates found the groundwater table at depths varying from 12 to more than 48 inches depth below ground surface at

    28 test locations within the jurisdictional boundaries claimed by DEP. (Pet. Ex. #14a)

    
    

20. The scant evidence of groundwater table is insufficient to overcome DEP's jurisdictional determination as, at most, it indicates that the level fluctuates. Fluctuation in hydric soils is common. Daily or weekly readings over a period of time and modeled with rainfall data would be necessary to establish inundation or lack thereof.

    
    

21. Invasion by blackberry and grape vines (both upland species), some evidence of soil oxidation and some canopy loss are also insufficient to deny wetland jurisdiction. Oxidation of the hydric soils on site is common with the water table fluctuation. There is substantial evidence that an equilibrium has been reached; that is, the hydric soils are being formed at the same rate they are oxidizing. Soils can be regularly and periodically inunated and still show signs of oxidation. The upland invasive species of vegetation can survive in jurisdictional wetlands, and their presence in the quantities described by witnesses for both parties does not evidence lack of jurisdictional wetlands.

    
    

    Functions of the Wetlands and Impact by the Project

    
    

22. The extensive development of the once large forested wetlands in the subject area has negatively affected the meager wetlands remaining. Turkey Lake, the original source of water, now lies across a four-laned highway. The connection with Turkey Lake, the Turkey Lake Feeder Canal, constructed approximately thirty years ago, serves to divert water from the site. The

    channelization of Shingle Creek, to the east of the site serves a similar function. Although the invasive species described above are not so prevalent as to preclude jurisdiction, their presence is evidence of the reduced functions of the remaining wetlands at this site.

    
    

23. The ditches and canals have virtually eliminated flood storage functioning. The old ditch in the north of the site effectively prevents stormwater runoff from McLeod Road into the jurisdictional wetlands. Another ditch along the right of way diverts runoff from Kirkman Road into the Turkey Lake Feeder Canal. No competent evidence established that the canal overflows its northern banks into the jurisdictional area. The water level in the canal has remained constant for the last five to ten years. There is evidence that water flows from the site into the canal.

    
    

24. The diversion of stormwater from the site by the existing ditches and canal prohibit the jurisdictional wetlands from providing water quality enhancement for runoff from the roads.

    
    

25. The site also provides little or no functional value as wildlife habitat. An eagles' nest is located approximately one-half to three-quarter miles to the northeast. It is not known if the eagles use the site for foraging or roosting. The eagles have not been observed on the site; neither have migratory waterfowl been observed. Some use of the area by reptiles and amphibians is expected, but the primary use of the site is by urban-adapted species (song birds, raccoons, opossums, and squirrels) which exist as well in upland sites.

    
    

26. The functions which the site provides as to storm water storage, improvement of water quality and wildlife habitat are generalized functions performed by any wetlands. Nothing in the evidence provided by the applicant or by the agency distinguishes this site as unique. The agency, itself, admits that the wetlands at issue are marginally effective. Other agencies involved in permit review, the City of Orlando and the South Florida Water Management District have characterized the site as unworthy of protection or enhancement strategies and nonfunctional.

    
    

27. Even the minimal functions being performed will be eliminated on 7.89 acres of the site when the proposed dredging and filling is completed. The applicant intends to preserve one acre and has incorporated its function in its stormwater management plan. That one acre will be severed from connection to the Turkey Lake Feeder Canal and therefore will no longer be considered a jurisdictional wetland. The incorporation of that acre in the stormwater management plan and its severance from waters of the state, DEP argues, should place the acre on the debit, not credit side. That is, it should be calculated in the total acreage impacted rather than in the total acreage provided in mitigation.

    
    

28. No evidentiary basis was provided for that argument by DEP. As part of the stormwater management system, the hydrological function of that one acre wetland is enhanced, not diminished. If it is not severed from the canal directly, it could degrade, not improve water quality. The fact that it is no longer a jurisdictional wetland does not remove DEP's monitoring jurisdiction; so long as the mitigation plan is part of the application approval, DEP still exercises enforcement authority with regard to that acre.

    The Proposed Mitigation

    
    

29. The mitigation plan submitted by the applicant to DEP is the same plan approved by the ACOE and South Florida Water Management District for those parties' separate permit jurisdiction.

    
    

30. The mitigation plan describes the enhancement of the one acre of existing forested wetland north of Turkey Lake Feeder Canal discussed above. In addition, the applicant proposes to create wetlands south of the canal including the planting of 5.82 acres of red maple, loblolly bay, water oak, cypress and gum trees. Two open ponds, .50 acres and .89 acres, with a center depth of 15 feet each, will be dug within the planted wetland. A berm will separate the created wetlands from a dry retention and compensating storage pond which is part of the stormwater management plan. The created wetlands will be connected to Turkey lake Feeder Canal and Shingle Creek with culverts that are fifty feet long and fifteen inches in diameter.

    
    

31. The creation of mature forested wetlands takes a long time, several decades, and recent studies reflect a disappointing trend for success. Still, the mitigation plan proposed by the applicant has a greater chance of success because of these factors:

    
    

    1. Muck soils already exist at the site;

    2. the creation area is hydrologically connected to waters of the state;

    3. the planted area is designed to be continually saturated; and

    4. the consultant involved is experienced and has a good "track record".

       
       

32. DEP's concerns with the mitigation plan are that the ratio of mitigation acres to acres of wetlands eliminated is less than 2:1 (actually, it is closer to 1:1); the creation wetlands will take a long time to mature, if they are successful at all; and the 15 foot depth in the two ponds may create water quality problems (dissolved oxygen problems generally occur at greater than 8 foot depths).

    
    

33. The applicant's mitigation plan is part of its stormwater management plan. The applicant has provided adequate evidence that the stormwater system will perform as intended and that it will provide equal or greater storage capacity and treatment of run-off and flood waters than that which presently exists on the site.

    
    

34. Agency staff never reviewed the stormwater management plan. While its concerns about water quality problems in deep ponds are generally valid, the system is designed to avoid those problems. Farid Tawill, SIP's engineer consultant, designed the stormwater management system and worked with Dr. Grey in designing the mitigation plan. He designed and placed the culverts to create circulation, and in response to a request from the agency, moved the one culvert further down to coincide with the deepwater location to contribute better circulation in that area. Under the two-pond system, also called off-line treatment, clean water will be entering the newly-created wetland.

35. DEP has no rule specifically prohibiting ponds greater than eight feet deep; nor does it have a rule prohibiting the inclusion of isolated wetlands (for example, the one preserved acre being severed from connection to the Turkey Lake Feeder Canal) in a mitigation plan. The rules require that water quality standards be met and provide that mitigation must offset the identified adverse impacts of the project which impacts would make it otherwise unpermittable.

    
    

    Summary of Findings

    
    

36. Using the vegetative index or "A" test, the department properly asserted jurisdiction over approximately one-third of the project site. Its earlier determinations of lack of or more limited jurisdiction were not binding on it or the applicant. Nor was the August 1992 determination binding, even though both parties proceeded through the review process based on the lines established in that inspection visit. The evidence presented by the agency in the final hearing adequately justified its assertion. The applicant's evidence was insufficient to overcome the presumption created by the "A" test and described in the conclusions of law, below. The applicant has not submitted to the department or at the hearing evidence of the one-in-ten-year flood line which might entitle it to the "ten year backstop" limit. Nor has the applicant submitted adequate evidence that a depressed water table consistently exists so as to prevent regular and periodic inundation of the area claimed to be jurisdictional.

    
    

37. Even though the jurisdictional wetlands exist now, they are only barely functional. Development occurring in the area, including dramatic alteration of the natural hydrology, has devalued the relatively small patch of wetlands remaining at the subject site.

    
    

38. The project's impact on those remaining wetlands is absolute. They will be mostly replaced by small commercial establishments and their appurtenances such as parking lots.

    
    

39. However, the functions destroyed by the elimination of those wetlands will be replaced by the mitigation proposed by the applicant, if the stormwater system and the wetland creation plan function as intended. SIP provided competent expert testimony and evidence that they would be successful and the general concerns by DEP's staff have been overcome by SIP's more specific and more credible evidence.

    
    

40. The agency's policies with regard to its disfavor of deep water ponds and a preference of preservation of wetlands over creation as a mitigation strategy were explicated and justified as reasonable, common sense applications of the agency's statutory responsibilities. For example, deep ponds generally do experience dissolved oxygen problems; wetland creation is a long-term and risky approach to mitigation. As general policies, they may be valid; as applied in this specific case, they cannot control, as Petitioner has provided the specific, competent evidence needed to address the concerns reflected in those policies.

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction in this proceeding, pursuant to Section 120.57(1), F.S. SIP, as the permit applicant, has standing to initiate this administrative proceeding, and timely initiated the proceeding.

42. SIP's dredge and fill permit application is subject to the requirements of Part VIII of Chapter 403, F.S. (1991), specifically Sections 403.918 and 403.919, and the rules adopted pursuant to these statutes, specifically Chapter 17-312, F.A.C. Although the 1993 Legislature transferred the statutes essentially intact to section 373.414, the new statute allows consideration of the SIP permit application to be reviewed under Part VIII of Chapter 403, which was in existence at the time the application was complete. See Sections 30 and 45 of Chapter 93-213, Laws of Florida.

    
    

    Wetland Jurisdiction

    
    

43. Dredging or filling in or on surface waters of the state requires a permit from DEP. Section 403.913, F.S. and rule 17-312.030(1), F.A.C. Surface waters of the state are natural water bodies (lakes, rivers, streams, bays, etc.) or excavated water bodies which connect to natural water bodies. Rule 17- 312.030(2), F.A.C. It is uncontested in this case that the Turkey Lake Feeder Canal is a surface water of the state for dredge and fill regulatory purposes.

    
    

44. The landward extent of surface waters of the state is determined in accordance with Chapter 17-301, F.A.C. The line demarcating the landward extent of the surface water of the state is established by dominant plant species.

    Rule 17-301.400(1), F.A.C. Dominance is determined in a plant stratum (canopy, subcanopy, or ground cover). The top stratum is to be used in determining plant dominance, i.e. extent of wetland jurisdiction, unless the top stratum contains less than 10 percent aerial extent, or unless a preponderance of the evidence establishes that the top stratum is not indicative of the normal hydrologic conditions. The burden of proof is on the party asserting that a stratum other than the top stratum should be used to determine dominance. Rule 17-301.400(1), F.A.C.

    
    

45. There are two tests which identify the landward extent of state surface waters. Rule 17-301.400(1)(a), referred to as the "A" test, sets forth a formula considering percentages of submerged and transitional plants. These submerged and transitional plants are listed in rule 17-30.400(2). Rule 17- 301.400(1)(b), or the "B" test, is to be used to determine the landward extent of wetland jurisdiction when the "A" test is not met. The "B" test includes a consideration of a formula involving transitional and submerged plants, and also includes consideration of such factors as hydrology, swollen buttresses, lichen lines, and other indicators of regular and periodic inundation.

    
    

46. At the SIP site, the canopy (larger trees) constituted more than 10 percent of the aerial extent in the area north of the Turkey Lake Feeder Canal that was inspected on August 25, 1992, by representatives of DEP and SIP. Therefore, it was appropriate to use the top stratum when determining plant dominance. Rule 17-301.400(1).

    
    

    Most of the canopy layer in the area identified as jurisdictional in the August 25, 1993 inspection consisted of plants listed as wetland species. This area met the "A" test in rule 17-301.400(1)(a), F.A.C., and therefore must be considered a jurisdictional wetland.

    
    

    The canopy which met the "A" test for jurisdictional wetlands was contiguous with the north bank of the Turkey Lake Canal, and therefore those wetlands north of the Turkey Lake Canal are connected to the "surface water of the state".

47. A small portion of the canopy in the northwest corner area identified as jurisdictional (approximately 1/4 acre or less) did not contain wetland listed plant species. However, the area was shown to contain heavily saturated hydric soils, with saturation to the surface. When the soils assessment indicates the presence of hydric soils in conjunction with dominant wetland vegetation, the area is presumed to be a jurisdictional wetland. Section 403.913(3), F.S. This, plus the evidence of inundation (heavy soil saturation to the surface), provides a preponderance of the evidence that the top stratum was not representative in this location, and therefore, pursuant to rule 17- 301.400(1), a lower stratum was appropriate for determination of plant dominance. In this area, the lower stratum consisted of wetland listed species, and the area was properly designated as a jurisdictional wetland.

    
    

48. Even if all of the evidence SIP submitted at the hearing in their attempt to "lower the strata" is considered, SIP has not provided a preponderance of evidence as required under Rule 17-301.400(1) that the top stratum (canopy) is not indicative of normal hydrologic conditions.

    
    

    SIP's evidence of two or three water table analyses over the past several years done for one day at each testing is not enough information to show that the area is not inundated regularly and periodically, and is therefore not indicative of the wetland vegetation on site. Competent expert testimony established that water table data taken on a daily or at weekly basis over a long period of time, to be considered with rainfall data, would be needed for meaningful evidence.

    
    

    Additionally, evidence submitted about soil oxidation and subsidence and the presence of certain non-wetland plants, grapevines and blackberries, is not conclusive that the dominance of wetland plants on site are not indicative of normal hydrologic conditions. All of these factors can exist in jurisdictional wetlands. Rule 17-301.400(1) does not require that the plants used in the top stratum to determine jurisdiction must be indicative of the historical hydrology of an area. Only if it is established that the plants are not indicative of normal hydrologic conditions is the test from the top stratum overcome. In this case, the "normal" hydrology on this site may still support a jurisdictional wetland, but it may be different than the historical hydrology that existed on site before development, roads, and canals invaded the area.

    
    

49. The greater weight of evidence supported the agency's jurisdictional finding using the canopy. There was evidence of inundation in many areas of the site. The site contained hydric soils throughout, which combined with the fact that the canopy vegetation was jurisdictional, results in a presumption that the site is jurisdictional. Section 403.913(3), F.S.

    
    

50. Rule 17-301.400(6), F.A.C., provides, in pertinent part:

    
    

    In no case shall the landward extent of waters of the state extend above the elevation of the one in 10-year recurring flood event or the area of land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward. The extent of the flood line shall be developed by appropriate engineering techniques, and a description of the surveyed line shall be prepared and certified by a professional land surveyor registered in this state. The

    burden for determining the surveyed flood line shall be with the party wishing to use this alternative.

    (emphasis added)

    * * *

    
    

    Despite several references by SIP in the hearing to 10 year flood events and whether water stands for 30 consecutive days on the site, no specific evidence was presented by SIP to activate this rule. SIP made no determination where the one in 10-year recurring flood event line is. No engineering plans with certified survey lines was submitted with a request for DEP engineers to review this alternative method of determining jurisdiction. No studies have been done to show where there would not be standing or flowing water for 30 consecutive days calculated on an average annual basis. Clearly, the location of both areas would have to be determined, since wetland jurisdiction is whichever area is more landward. Since the required information requesting use of this alternative was not submitted, the use of this "ten year backstop" is not appropriate here. Evidence presented by SIP as to the 1-in-25 year flood elevation was too vague and tentative to be reliable as a substitute for the specifics required by the rule.

    
    

    Impacts and Mitigation

    
    

51. For its permit approval, the applicant must provide the agency with reasonable assurance that the project is not "contrary to the public interest". Section 403.918(2), F.S. The only relevant criteria in this proceeding, among the statutory criteria to be considered and balanced by the department, are:

    
    

    * * *

    2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    * * *

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

    * * *

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

    subsection 403.918(2)(a), F.S.

    
    

    If the applicant is unable to otherwise meet the criteria, the department must consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project. Subsection 403.918(2)(b), F.S.

    
    

52. The requirement for reasonable assurance is not a requirement for an absolute guarantee. Manasota-88 v. Agrico Chemical Co., 12 FALR 1319, 1325 (DER OGC No. 87-0664, Feb. 19, 1990); McCormick et al v. City of Jacksonville, 12 FALR 960 (DER OGC No. 88-0389, Jan. 22, 1990). Reasonable assurance does not require an applicant to perform every known test. Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10, 13 (Fla. 1st DCA 1986). Rather reasonable assurance means "substantial likelihood". Metropolitan Dade County

    v. Coscan Florida, Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992).

53. As described in the findings of fact above, the existing site is not a haven for endangered or threatened species and most of the wildlife habitat that will be affected can be established elsewhere in upland areas. The effect of the project on wildlife, even though the elimination of jurisdictional wetlands is permanent, is minimal. The hydrological function of the wetlands is also very limited due to the stress of surrounding development and the ditches and channels.

    
    

54. Since even the minor impacts will be permanent, it is incumbent upon the applicant to mitigate those impacts.

55. Rule 17-312.300(6), F.A.C., provides:

(6) The Department recognizes that other agencies are concerned with adverse impacts on waters of the state and may require mitigation for such impacts. Mitigation or reclamation required by other agencies will be acceptable to the Department to the extent that such mitigation or reclamation fulfills the Department's statutory requirements. If not, additional measures shall be necessary to fulfill the Department's requirements. It is the intent of the Department to reduce duplication of regulatory requirements. To that end, inspections, reports or other similar reviews of mitigation projects by the Department of Natural Resources or other agencies will be used to augment the Department's determination of compliance with permit requirements.

In this case at least two other agencies made extensive studies of the site and the proposed project. Although the agency is not required to accept those agencies' determination, this rule indicates that DEP should at least review those determinations to avoid duplication of effort. This was not done in this case, but even if it had been done, there is no clear evidence that DEP's determination would have been different.

1. It should have been different, however, as the mitigation proposed by the applicant does adequately offset the project's adverse effects. The agency must be guided by its own rules found in Part III of Chapter 17-312, F.A.C.

   
   

   The starting guideline for mitigation ratios for created waters is two acres created for each acre adversely impacted. Rule 17-312.340(2), F.A.C. That rule goes on to state that:

   
   

   This [2:1] guideline is for preliminary planning purposes only [e.s.], and the actual extent of creation may be more or less [e.s.] based on a consideration of the factors listed in subparagraphs below:

   1. The length of time that can be expected to elapse before the functions of the waters

      of the state identified during the permitting process as being adversely affected have been restored or offset.

      * * *

      1. The type of water to be created and the likelihood of success creating the type of waters.

      2. Whether or not the waters of the state to be affected by the proposed dredging and filling are functioning as natural, healthy waters of the state of that type, and the current condition of the relative value and functions being performed by the areas affected by the proposed activities compared to the proposed character and quality of the wetlands to be created.

      3. Whether the waters of the state are unique for that geographical area.

      * * *

      1. The presence or absence of exotic or nuisance plant species within the waters of the state to be disturbed or altered.

      2. Whether the project eliminates waters or changes waters from one type to another. (Inapplicable factors have been omitted.)

      
      

      Permit applicants are also required to provide the department with reasonable assurance that the mitigation will be successful.

      
      

2. The agency's refusal to accept a lower than 2:1 mitigation ratio is based primarily on subparagraph (a), set forth above. It is the department's contention that since forested wetlands take a long time to mature, it will take a substantial length of time before the functions of the waters of the state being adversely affected will be restored. The department fails, however, to give proper consideration to the fact the existing wetlands serve little or no function. While it is true that it may take decades to replace the functions being performed by a healthy, viable forested wetland, wetland functions being performed by this site cannot only be quickly restored through the stormwater management system, but also enhanced under the proposed mitigation plan. The creation of a viable wetland, which will experience regular and periodic inundation and exchange waters with the Turkey Lake Feeder Canal, will immediately provide superior stormwater and flood storage, enhance water quality in the Canal, and provide a viable habitat for aquatic and other wildlife indigenous to wetlands. Therefore, refusal to reduce the acceptable mitigation ratio below 2:1 was improper in this instance, where the factors in subparagraphs (d) and (g) outlined above weigh strongly in favor of reducing the acceptable ratio.

   
   

3. SIP has provided reasonable assurance that the proposed mitigation will be successful. The uncontradicted evidence establishes that the necessary hydrological factors, soils conditions, and monitoring programs are in place to provide a reasonable likelihood of success, and that other creation projects of similar design with which Dr. Grey was involved are tending towards success (a "good track record"). Rule 17-312.340 requires that each mitigation proposal be evaluated on a case by case basis. The department's determination that success

   was not likely due to low success rate of other forested wetland creation projects which were not proven to be similar to the project at issue was therefore improper.

   
   

   Consideration of Subsection 120.57(1)(b)15., F.S.

   
   

4. Subsection 120.57(1)(b)15., F.S., provides:

   
   

   15. Each agency statement defined as a rule under s. 120.52 and not adopted by the rulemaking procedure provided by s. 120.54 which is relied upon by an agency to determine the substantial interests of a party shall be subject to de novo review by a hearing officer. A statement shall not enlarge, modify, or contravene the specific provision of law implemented or otherwise exceed delegated legislative authority. The statement applied as a result of a proceeding pursuant to this subsection shall be demonstrated to be within the scope of delegated legislative authority. Recommended and final orders pursuant to this subsection shall provide an explanation of the statement that includes the evidentiary basis which supports the statement applied and a general discussion of the justification for the statement applied.

   
   

5. Petitioner claims that certain non-rule policies were improperly applied in the department's review of its application and mitigation proposal. As stated in the findings of fact, these policies standing alone have some common sense and evidentiary basis. That is, deep ponds generally invite water quality problems; forested wetlands are difficult to create; preservation or wetland enhancement are less risky methodologies and provide quicker results. These policies, notwithstanding their validity in the abstract, were not properly applied in this case.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C.

DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1.-3. Adopted in paragraph 2.

4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary.

9. Adopted in paragraph 8.

10.-11. Adopted in substance in paragraph 9.

12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary

1. Adopted in paragraphs 11 and 12.

2. Rejected as unnecessary.

19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15.

1. Adopted in paragraph 16.

2. Rejected as contrary to the weight of evidence.

3. Adopted in paragraph 16.

4. Substantially rejected as contrary to the greater weight of evidence.

5. Adopted in part in paragraph 17, otherwise rejected as immaterial.

6. Rejected as immaterial.

7. Adopted in paragraph 18.

8. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal.

9. Rejected as unsubstantiated by reliable competent evidence.

10. Adopted in substance in paragraph 22.

36.-40. Rejected as unsupported by reliable competent evidence.

1. Rejected as immaterial.

2. Rejected as unsupported by the weight of evidence.

3. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence.

4. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence.

contrary to the greater weight of evidence.

62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26.

1. Rejected as unnecessary.

2. Adopted in paragraph 30.

3. Adopted in paragraph 34.

4. Adopted in substance in paragraph 31.

5. Adopted in substance in paragraphs 30 and 34.

6. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35.

1. Rejected as unnecessary.

2. Adopted in paragraph 33. 84.-90. Rejected as unnecessary.

   
   

   Respondent's Proposed Findings

   
   

   1. Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17.

1. Adopted in paragraph 15.

2. Adopted in paragraph 17.

3. Adopted in paragraph 16.

4. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence.

5. Adopted in paragraph 19.

11.-15. Adopted in substance in paragraph 21.

16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal.

17.-18. Adopted in substance in paragraphs 21 and 23.

19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21.

1. Adopted in paragraph 27.

2. Adopted in substance in paragraphs 1 and 2.

3. Adopted in paragraph 2.

4. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence.

5. Adopted in substance in paragraph 17.

6. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence.

33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence.

35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary.

44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions.

45.-47. Adopted in substance in paragraph 30.

1. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact).

2. Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence.

3. Rejected as unnecessary.

51.-52. Adopted in summary in paragraph 31.

53.-54. Rejected as cumulative and unnecessary.

55. Rejected as contrary to the greater weight of evidence.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire

R. Duke Woodson, Esquire FOLEY & LARDNER

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire

Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

SIP PROPERTIES LIMITED PARTNERSHIP,

Petitioner,

OGC Case No. 93-1866

vs. DOAH Case Nos. 93-3367

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On January 11, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted her Recommended Order to the Petitioner, SIP Properties Limited Partnership (hereafter "SIP"), and to the Respondent, State of Florida Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department"). A copy of the Recommended Order is attached hereto as Exhibit A.

On January 26, 1994, SIP filed its Exceptions to the Recommended Order and furnished the Department with a transcript of the formal hearing before the DOAH Hearing Officer. On February 4, 1994, the Department served its "Response to Recommended Order." The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

SIP is the record owner of the parcel of land (hereafter "site") at issue in this proceeding. The site is approximately thirty-five (35) acres in size and is located in the southwest area of Orlando, Orange County, Florida. The site is at the southeast corner of the intersection of L.B. McLeod Road and State Road 435 (Kirkman Road). Kirkman Road is a four-laned thoroughfare with a median strip.

It is undisputed that the site was once part of a large forested wetland system, but that the surrounding area and the site itself have been significantly impacted by urban growth. The site is zoned commercial and is surrounded by commercial, industrial and residential development.

The southern portion of the site is bisected by an east-west canal, known as Turkey Lake Feeder Canal (hereafter "TLF Canal"). The TLF Canal connects Turkey Lake with Shingle Creek Canal. Turkey Lake is located to the west, across Kirkman Road, and the Shingle Creek Canal is situated at the eastern boundary of the site.

Approximately one-third of the site lies south of the TLF Canal. This southern portion of the site has been cleared and cut and remains primarily unvegetated. Most of the site north of the TLF Canal is vegetated. However, an old drainage ditch with spoil berms is located in the northeast corner of the site, severing the wetlands in that corner from any connection with waters of the State.

A series of meetings and correspondence transpired between representatives of SIP (or the predecessor land owner) and the Department concerning development of the site, going back to the year 1985. Department staff made visits to the site on at least three occasions prior to 1992. SIP was notified by a Department representative in the Orlando district office in 1985 and again in 1989 of her informal determination that the Department's wetlands jurisdiction did not extend beyond the waters of the TLF Canal. (SIP Exs. 29, 46) However, SIP was advised that this informal determination was non-binding. (SIP Ex. 46)

The potential wetlands impact of the proposed project was also reviewed by the South Florida Water Management District, who issued a stormwater management permit (No. 48-00506-S) to SIP. In addition, SIP received a dredge and fill permit (No. 901PI-04169) from the Army Corps of Engineers (Corps) to develop the site on March 1, 1991. The Corps permit contained a federal wetlands jurisdiction determination of 9.68 acres. (SIP Ex. 66)

On March 26, 1991, SIP submitted a short-form dredge and fill application to the Department's district office in Orlando containing the same proposed development and mitigation data submitted to and approved by the Corps. (SIP Ex. 69) A short- form application is generally deemed appropriate when the maximum wetland impact does not exceed 10 acres.

Despite the prior informal representations to the contrary concerning the issue of the extent of claimed wetlands jurisdiction, Department staff sent a letter to SIP's consultant in May of 1991 advising that a standard form application and additional processing fees would be required. (SIP Ex. 77) On January 27, 1992, SIP resubmitted its application to the Department on the standard form. (SIP Ex. 85)

A final and more thorough wetlands jurisdiction inspection of the site was conducted on August 25, 1992, involving representatives of SIP and the Department. (Dept. Exs. 2, 5) In preparation for this inspection, SIP's consultant set out preliminary wetlands boundary flags using vegetation dominance (the "A" test) in accordance with instructions received from the Department concerning wetlands jurisdictional analysis. (T. 119)

The jurisdictional wetlands boundary was at least informally agreed to by SIP and the Department representatives as the result of this final site inspection in August of 1992. (Dept. Exs. 2 and 5) These claimed jurisdictional wetlands comprise approximately ten acres. (Dept. Ex. 2) They are located within the western and central portion of the site north of TLF Canal. (SIP Ex. 13)

SIP plans to develop the site by dividing it into parcels or lots with proposed uses such as restaurants or fast food establishments, retail stores and offices. Development of the site will require the construction of retention/detention ponds and the filling of a portion of the site. The

proposed development will result in the filling of 7.47 acres and the dredging of 0.42 acres claimed by the Department to be jurisdictional wetlands. (SIP Ex. 85)

SIP's proposed development of the site includes a mitigation plan. (SIP Exs. 16, 85) One basic component of SIP's proposed mitigation is to preserve one acre of wetlands north of TLF Canal, which will be incorporated into its stormwater management plan. That one acre will be severed from connection to the TLF Canal and will no longer be considered a "jurisdictional wetland."

The other major element of mitigation is SIP's proposal to create in excess of seven acres of forested wetlands south of TLF Canal. This element of the mitigation plan includes the planting of 5.82 acres of red maple, loblolly bay, water oak, cypress and gum trees. In addition, SIP proposes to construct two open ponds having a center depth of fifteen (15) feet each. These two ponds will comprise .50 acre and .89 acre, respectively. The proposed created wetlands will be connected to TLF Canal and Shingle Creek Canal by culverts.

The Department contended during the permit application review process and at the DOAH hearing that SIP's mitigation plan was inadequate. The concerns of Department staff with the mitigation plan are that the ratio of mitigated acres to acres of wetlands eliminated is less than 2:1, the creation of mature forested wetlands takes many years and is often unsuccessful and the depth of the two ponds may create oxygen deficiency related water quality problems.

On May 17, 1993, the Department issued its Notice of Permit Denial pertaining to SIP's application for a dredge and fill permit pertaining to the site. (SIP Ex. 118) The reasons given for the denial were that the proposed project would result in the permanent loss of approximately nine acres of mature forested jurisdictional wetlands and that the proposed mitigation plan was not sufficient to offset this loss. The denial notice also stated that the project would adversely affect fish and wildlife and would diminish the condition and value of functions being performed by areas affected by the proposed activity.

On May 28, 1993, SIP filed its Petition for Formal Administrative Hearing challenging the Department's notice of denial of the requested permit. SIP's petition challenging the denial of the permit was forwarded to DOAH and was assigned Case No. 93-3367. SIP also simultaneously filed a related Petition for Determination of Violation of Rulemaking Requirements, which was forwarded to DOAH and assigned Case No. 93-2590RU. 1/ The two cases were consolidated for hearing at the request of the parties.

A formal hearing was held in Tallahassee on August 9, 10 and 11, 1993, before DOAH Hearing Officer, Mary Clark. Testimony of expert witnesses and documentary evidence were presented at the hearing on behalf of SIP and the Department. The key issues before the Hearing Officer were:

1. Whether reasonable assurances had been provided that the proposed project would comply with the applicable water quality standards and public interest requirements set forth in sections 403.918(1) & (2) and 403.919, Florida Statutes (1991), 2/ and the Department's implementing rules.

   
   

2. The propriety of the wetlands jurisdiction determination made by the Department.

   
   

3. The adequacy of the the mitigation plan proposed by SIP.

The cumulative effect of the various findings of fact and conclusions of law in the Recommended Order establish a determination by the Hearing Officer that SIP had provided the necessary reasonable assurances that its proposed project would comply with the applicable water quality standards and public interest requirements. The Hearing Officer also concluded in paragraphs 49 and

50 that the Department's wetland jurisdiction determination was supported by the greater weight of evidence presented at the hearing.

In paragraphs 56-58 of the Recommended Order, the Hearing Officer further concluded that SIP's mitigation plan was adequate to offset the potential adverse effects of the proposed development at the site. The Hearing Officer ultimately recommended that the Department grant the requested dredge and fill permit with the mitigation proposed by SIP, and establishing an expiration date and monitoring and evaluation plan for determining the success of the mitigation.

RULINGS ON SIP's EXCEPTIONS

Preface

SIP filed its Exceptions to the Recommended Order disputing portions of the Hearing Officer's Findings of Fact and Conclusions of Law. As a preface to my rulings on the various exceptions, it is appropriate to comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.

Under s. 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Department is bound by such finding. Florida Department of Business Regulation v. Bradley, supra, at page 1123.

However, at the agency review level the Department is free to exercise its judgment and reject the Hearing Officer's conclusions of law. See, e.g., MacPherson v. School Bd. of Monroe County, 505 So.2d 682 ( Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); and Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla.

5th DCA 1982).

Exception No. 1

In this Exception, SIP takes issue with the Hearing Officer's Finding of Fact 10. In paragraph 10 of the Recommended Order (hereafter "RO"), the Hearing Officer summarizes the field activities, observations and related conclusions of Edwin Bridges, a biologist, pertaining to his inspection of the site in December of 1990. At that time, Mr. Bridges was employed by the Department as a specialist in wetlands jurisdiction. (T. 364-365) Mr. Bridges was qualified at the hearing as an expert in the fields of botany and wetlands jurisdiction and gave extensive testimony. (T. 364-443) The Hearing Officer's summation of Bridges' field observations and conclusions appears to be supported by competent, substantial evidence of record. (T. 372-375, 409-411; SIP Ex. 63) Consequently, SIP Exception No. 1 is denied.

Exception No. 2

SIP takes exception here to the Hearing Officer's Finding of Fact 13.

Paragraph 13 of the RO summarizes the evidence presented at the hearing concerning the actions of Mr. Bridges and other Department personnel relating to an inspection of the site on May 8, 1991. SIP's reference to the purported impropriety of the use of the vegetation dominance ("A" test) set forth in Rule 17-301.400(a), F.A.C., is hereby rejected as extraneous. There is no discussion or citation of this test or rule in Finding of Fact 13. However, the portion of this exception asserting that "[i]t is uncertain how much area was flagged" prior to May 8, 1991, appears to be well-taken. A review of the record does not reflect any competent, substantial evidence to support the Hearing Officer's reference to the "9.68 acres" as having been flagged on the ground as jurisdictional wetlands claimed by the Department prior to this site inspection in May of 1991. 3/ The remainder of the findings in paragraph 13 of the RO appear to be based on competent, substantial evidence and are hereby adopted. (T. 375-378; SIP Ex. 77)

Exceptions No. 3 and 4

SIP's purported "exceptions" to Findings of Fact 14 and 17 do not, in substance, constitute exceptions. There are no factual findings in paragraphs

14 and 17 of the RO that appear to be contradictory to the assertions set forth by SIP in these exceptions. SIP is seemingly attempting to clarify and/or supplement the Hearing Officer's findings, rather than contending they are in error. Exceptions No. 3 and No. 4 are denied.

Exceptions No. 5, 6, 7, 8 and 9

These exceptions are directed to the Hearing Officer's Findings of Fact 18, 20, 21, 22, 23, 36, 37 and to Conclusion of Law No. 50. 4/ The subject factual findings primarily relate to the issue of the propriety of the Department's wetlands jurisdiction determination made after the final inspection of the site on August 25, 1992.

A basic flaw in Sip's analysis of the correctness of the Hearing Officer's subject factual findings is evidenced by Exception No. 5 directed to Finding of Fact 18. In Exception No. 5, SIP contends that the "Department failed to take into account other information submitted by Petitioner" during the review process. (emphasis supplied) However, the critical test on agency review of a DOAH Recommended Order is not what the Department allegedly failed to do during the permit review process, but rather whether the Hearing Officer's Findings of Fact are based on substantial, competent evidence presented at the hearing.

A section 120.57 formal hearing is not merely an administrative review of prior agency action, but is a de novo proceeding intended to formulate final agency action. See, , Florida Dept. of Transportation v. J.W.C. Company Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981); and McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

It was entirely appropriate for the Hearing Officer to have considered additional evidence at the hearing concerning the extent of the Department's wetlands jurisdiction at the site. Neither the Department nor SIP was precluded from presenting additional testimony or documentary evidence at the hearing on matters not previously submitted with the application or included in the notice of intent to deny the permit. Hamilton County Commission v. State, 587 So.2d 1378, 1387 (Fla. 1st DCA 1991); and DeCarion v. Dept. of Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984).

SIP's burden of proof as the permit applicant at the de novo DOAH formal hearing below is measured by the sufficiency of the evidence presented at the hearing supporting the propriety of granting the requested dredge and fill permit. J.W.C. Company, Inc., supra, at 788-789. Thus, SIP's critical emphasis on the adequacy of the data it previously submitted to the Department in conjunction with the filing of the permit application is not supported by the controlling case law of this state as cited above. 5/

These exceptions of SIP cite the portions of the transcript containing the expert testimony of its witnesses, William Grey and Farid Tawill. These two expert witnesses disagreed with the Department's experts as to the correctness of the wetlands jurisdiction determination made by the Department after the final site inspection in August of 1992.

The decision to accept one expert's testimony over that of another is a matter within the sound discretion of the hearing officer and cannot be altered absent a complete lack of competent, substantial evidence of record from which the finding could be reasonably inferred. See, Collier Medical Center v. State, Dept. of HRS, 446 So.2d 83, 85 (Fla. 1st DCA 1985); and Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Furthermore, the sufficiency of the facts required to form the opinion of an expert must normally reside with the expert and any purported deficiencies in such facts relate to the weight of the evidence, a matter within the province of the Hearing Officer. Gershanik v. Dept. of Professional Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984), rev. den. 462 So.2d 1106 (Fla. 1985).

The Hearing Officer's factual findings in paragraphs 18, 20, 21, 22, 23, 36 and 37 of the RO appear to be supported by substantial, competent evidence of record. The Department presented the expert testimony at the hearing of Edwin Bridges and Richard Cantrell, who both had been qualified as experts in wetlands jurisdiction determination. These two expert witnesses concurred with the propriety of the wetlands jurisdiction determination made by the Department as the result of the final inspection of the site in August of 1992. (T. 364-443, 568-597)

In view of the above, SIP's Exceptions No. 5, 6, 7, 9 and that portion of Exception No. 8 pertaining to Findings of Fact 23 and 36 are denied.

Exception Nos. 8, 10, 11, 12 and 13

These exceptions by SIP, directed to the Hearing Officer's Conclusions of Law 45, 46, 47, 48, 49 and 50, are consolidated for review. All of the subject exceptions essentially take issue with the Hearing Officer's conclusions approving the Department's interpretation and implementation in this case of the applicable statutes and rules dealing with the procedure for determining the landward extent of surface waters of the state.

The basic determination that the TLF Canal is a "surface water of the state" for dredge and fill application purposes was not contested by SIP during the permit review process or at the DOAH hearing. Thus, the critical point at issue in this proceeding is the extent of the Department's wetlands jurisdiction at the site beyond the banks of the TLF Canal.

Section 403.817(2), Florida Statutes (1991) 6/ directs the Department to establish by rule the method for determining the landward extent of waters of the state for regulatory purposes. The basic guidelines set forth in this statute are that:

Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species.

The Department rules implementing these statutory provisions of section 403.817(2) are Rules 17-301.100, 17-301.200 and 17-301.400, F.A.C. Rule 17-

301.400(1) provides that the line demarcating the landward extent of surface waters of the state is established by dominant plant species. Dominance is determined in a plant stratum (canopy, subcanopy or ground species). Under Rule 17-301.400(1), the top stratum has priority in determining plant dominance and the burden of proof is on the party asserting that a stratum other than the top stratum should be used to determine dominance.

Rule 17-301.400(1) sets forth two tests or procedures to establish the line marking the landward extent of state surface waters. Rule 17-301.400 (1)(a), referred to as the "A" test, utilizes a formula considering the areal extent and percentages of submerged and transitional plant species. The specific submerged and transitional plants to be considered are listed in Rule 17-301.400(2).

Rule 17-301.400(1)(b), referred to as the "B" test, is to be utilized when the "A" test criteria are not met. The "B" test not only considers wetland plant dominance, but also includes consideration of other factors such as hydrology, swollen buttresses, lichen lines and other indicators of regular and periodic inundation.

SIP seems to contend in these exceptions that the Department is required to consider criteria other than the dominance of submerged and transitional plants, even under the "A" test. However, such contention appears to be patently inconsistent with the plain language of Rule 17-301.400(1)(a) expressly limiting the "A" test to only the consideration of the dominance of the listed wetland plants. Thus, this contention is rejected.

SIP also cites the provisions of Rule 17-312.045, F.A.C., as authority for its contention that the Hearing Officer erred by approving the jurisdictional determination of the Department staff based primarily on the use of the "A" test set forth in Rule 17-301.400(1)(a). Rule 17-312.045 does provide that

"[i]solated areas that infrequently flow into or otherwise exchange waters with a described water body are not intended to be included within the dredge and fill jurisdiction of the department."

The Hearing Officer, however, found that the area of the site claimed by Department staff to be jurisdictional contained heavily saturated hydric soil and that one portion was even inundated at the time of the site inspection in August of 1992. (RO, paragraph 17) This finding of the presence of hydric soils, in conjunction with the Hearing Officer's findings of the dominance of wetland plant species (RO, paragraphs 46, 47), creates a presumption of the Department's jurisdiction under section 403.913(3), Florida Statutes (1991). 7/

The Hearing Officer also made a factual finding that there was evidence of water flow from the portion of the site claimed by the Department as jurisdictional wetlands into the TLF Canal. (RO, paragraph 23) Thus, SIP's contention of the applicability of the "isolated areas" language of Rule 17-

1. to this proceeding appears to be without merit.

   
   

   SIP's further reliance on the case of Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985) appears to be misplaced. In the Goldring case, the Florida Supreme Court quashed the district court of appeal decision and expressly approved a more expansive interpretation by the Department of its rules dealing with the determination of the landward extent of state waters for the purpose of dredge and fill jurisdiction. In fact, Goldring is a leading case affirming the proposition that an exchange of waters need not be a two-way flow, and that a flow of waters from the landward side into state waters is sufficient to establish Department wetlands jurisdiction. Id. at 534.

   
   

   In the Conclusions of Law to which SIP takes exception here, the Hearing Officer concluded that:

   
   

   1. The "B" test set forth in Rule 17-301.400(1)(b) is to be used only when the "A" test is not met. (RO, paragraph 45)

      
      

   2. The canopy (larger trees) at the site constituted more than 10 percent of the areal extent of the area north of the TLF Canal inspected by representatives of SIP and the Department on August 25, 1992. Therefore, it was appropriate for the Department to have used the top stratum in determining plant dominance under the "A" test. (RO, paragraph 46)

      
      

   3. Most of the canopy layer in the area identified by the Department as jurisdictional wetlands as the result of the August 25, 1992, inspection of the site consisted of plants listed as submerged and transitional species. Thus, this area met the "A" test criteria and should be considered jurisdictional wetlands. (RO, paragraph 46)

      
      

   4. A small portion of the area in the northwest corner (approximately 1/4 acre or less) did not contain plants listed as wetlands species. However, the area was shown to contain hydric soils, with saturation to the surface, and is presumed to be jurisdictional wetlands under section 403.913(3), Florida Statutes (1991). Furthermore, the lower stratum was appropriate for determining plant dominance in this small area and the lower stratum consisted of plants listed as wetlands species. (RO, paragraph 47)

   5. That SIP's attempt to "lower the strata" over the entire area claimed by the Department staff as jurisdictional wetlands was not supported by a preponderance of the evidence at the hearing. Thus, SIP had not fulfilled its burden of proving that the top stratum (canopy) was not indicative of normal hydrologic conditions as required by Rule 17-301.400(1). (RO, paragraph 48)

      
      

   6. The greater weight of evidence at the hearing supported the wetlands jurisdiction determination of the Department staff primarily using the top stratum (canopy) or "A" test set forth in Rule 17-301.400(1)(a). The Hearing Officer cited the evidence of inundation in many areas of the site and the soils findings indicating the existence of hydric soils throughout the area of the site claimed by the Department staff to be jurisdictional wetlands. (RO, paragraph 49)

These determinations of the Hearing Officer in "Conclusions of Law" 45, 46, 47, 48, 49 and 50 actually appear to consist of a mixture of pure legal conclusions and reiterations of factual findings previously made. As noted in the preface above, the Department is free to exercise its judgment at the agency review level and reject those portions of the Recommended Order consisting of pure conclusions of law. See, e.g., Siess v. Dept. of Health and Rehabilitative Services, supra. Furthermore, as to those paragraphs of the Recommended Order actually consisting of "mixed questions of law and fact", the Department has the authority at the agency review level to substitute its judgment concerning the ultimate determination as to whether the particular facts establish reasonable assurances of compliance with the governing permitting law. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991).

A scrutiny of the governing law and the record on review reflects that the Hearing Officer's subject legal conclusions substantially comply with the law as applied to the underlying factual findings based on competent, substantial evidence. Consequently, these Conclusions of Law of the Hearing Officer are hereby adopted and SIP's Exceptions No. 8, 10, 11, 12 and 13 are denied.

CONCLUSION

This proceeding came on for agency review in a rather unusual posture. The DOAH Hearing Officer approved SIP's mitigation plan and recommended that the Department issue the requested dredge and fill permit. Notwithstanding these critical rulings of the Hearing Officer in its favor, SIP filed various exceptions to the Recommended Order.

On the other hand, the Department staff issued a notice of denial of the requested permit and vigorously opposed the adequacy of SIP's mitigation plan and the granting of the permit at the DOAH formal hearing. However, no exceptions to the Recommended Order were filed on behalf of the Department despite the Hearing Officer's adverse critical rulings approving the mitigation plan and recommending that the requested dredge and fill permit be granted to SIP.

In connection with the issue of the impact of the proposed project on water quality standards, it is notable that even two of the Department staff members who were involved in the SIP permit review process did not have a high opinion of the functional value of the existing wetlands. (SIP Ex. 121, p. 67; SIP Ex. 123, p. 92) In addition, it is conspicuous that no exceptions were filed on behalf of the Department to the Hearing Officer's findings that the site

provides little or no functional value as a wildlife habitat and that the existing jurisdictional wetlands are "only barely functional." (RO, paragraphs

25 and 37)

The transcript of the hearing reveals a classic case of a "battle of the experts." The Hearing Officer ruled in favor of the Department's expert witnesses on the issue of the extent of the Department's wetlands jurisdiction at the site. However, the Hearing Officer ruled with SIP's expert witnesses on the adequacy of the mitigation plan and the fundamental issue of whether the proposed project would comply with applicable water quality standards and other public interest requirements.

As discussed above, the Department is not authorized on agency review of a Recommended Order to reject a Hearing Officer's decision accepting one expert's testimony over that of another unless there is a complete lack of competent, substantial evidence of record from which the propriety of the decision could be reasonably inferred. See, e.g., Collier Medical Center, supra. A review of the expert testimony in the transcript does not reflect a "complete lack of competent, substantial evidence" to authorize the rejection here of the Hearing Officer's decisions pertaining to the conflicting expert testimony presented on behalf of SIP and the Department at the hearing.

It is thereupon ORDERED that:

1. The third sentence in Finding of Fact 13 is modified to read that:

   
   

   Based on the vegetation, Mr. Bridges determined that DEP's jurisdiction extended beyond the area already flagged and from that it was assumed that more than ten acres of wetlands jurisdiction were at issue.

   
   

2. The Recommended Order of the Hearing Officer, as modified in paragraph A above, is adopted and is incorporated by reference herein.

   
   

3. The Department's Central District Office is directed to issue dredge and fill permit number 48-2086169, subject to the conditions set forth in SIP's mitigation plan and subject to conditions to be drafted by the Central District Office for establishing a mitigation completion date and a plan for monitoring and evaluating the success of the mitigation as provided in Rules 17-312.320 and 17-312.350, F.A.C.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 25th day of February, 1994, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

ENDNOTES

1/ On January 11, 1994, the Hearing Officer entered a Final Order in DOAH Case No. 93-2950RU dismissing SIP's rule challenge petition.

2/ The provisions of ss. 403.918 and 403.919 were repealed effective July 1, 1993, pursuant to Ch. 93-213, s. 44, Laws of Florida. These provisions were incorporated in substantial form into the provisions of s. 373.414, Florida Statutes (1993), pursuant to s. 30 of Ch. 93-213. The "grandfather" provisions of s. 43 of Ch. 93-213, state that the "repeal of any statutory sections under this section shall not be grounds for dismissal or amendment of and shall have no effect on any administrative or judicial proceeding pending on the effective date of the act."

3/ Figure 3 in the Department's Interoffice Memorandum dated 12/13/90 (SIP Ex.

63) consists of a sketch of the site on which is drawn the "extent of DER jurisdiction determined." However, there appears to be no specific reference in this exhibit or any other evidence of record to the fact that 9.68 acres of claimed jurisdictional wetlands had been "flagged" on the ground at the site prior to May 8, 1991, in connection with the Department's permit review.

4/ SIP's Exception to the Hearing Officer's Conclusion of Law 50 will be dealt with below.

5/ This contention could be a "two-edged sword" for SIP. Its consultant wrote two letters to the Department during the review process apparently agreeing to the Department's wetlands determination made as a result of the site inspection in August of 1992. (Dept. Exs. 2 and 5)

6/ These statutory provisions were repealed effective July 1, 1993, by Ch. 93- 213, Laws of Florida. However, see the comments in footnote 1 concerning the continuing applicability of these statutory provisions to this administrative proceeding.

7/ See footnote 1 concerning the continuing applicability of these statutory provisions to this proceeding.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by U.S. Mail to:

Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire

R. Duke Woodson, Esquire Foley & Lardner

111 N Orange Ave Ste 1800 Orlando Florida 32801

and by hand delivery to:

Mary Clark Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Bldg.

The DeSoto Bldg 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee Florida 32399-1550

Tallahassee Florida 32399-1550

Doglas H. MacLaughlin, Esquire John L. Chaves, Esquire

Department of Environmental Protection

2600 Blair Stone Rd Tallahassee Florida 32399-2400 this 25th day of February, 1994.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Bldg 2600 Blair Stone Rd

Tallahassee Florida 32399-2400 Telephone: 904/488-9314

Docket for Case No: 93-002950RU

Orders for Case No: 93-002950RU