STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY,
Petitioner,
vs.
ARTHUR WEISS, Trustee, and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents,
and
FLORIDA POWER AND LIGHT COMPANY,
Intervenor.
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RECOMMENDED ORDER
On April 17-19 and May 7, 2002, a final administrative hearing was held in this case in Fort Lauderdale, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner Broward County:
Paul Sexton, Esquire Williams, Wilson & Sexton
215 South Monroe Street Suite 600-A
Tallahassee, Florida 32301-1804
Melvin Wilson, Esquire Williams, Wilson & Sexton
110 East Broward Boulevard Suite 1700
Fort Lauderdale, Florida 33301-3503 For Respondent District:
Luna Ergas Phillips, Esquire
South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416-4680 For Respondent Arthur D. Weiss, Trustee:
William L. Hyde, Esquire Ausley & McMullen
227 South Calhoun Street Tallahassee, Florida 32301-1805
William S. Spencer, Esquire Gunster, Yoakley & Stewart, P.A.
500 East Broward Boulevard Suite 1400
Fort Lauderdale, Florida 33394-3076 For Intervenor:
Frank E. Matthews, Esquire Eric Olsen, Esquire Hopping, Green & Sams
123 South Calhoun Street Tallahassee, Florida 32301-1517
STATEMENT OF THE ISSUES
The ultimate issue in this case is whether the South Florida Water Management District (SFWMD) should grant Environmental Resource Permit (ERP) Application No. 970509-10 for conceptual approval of a surface water management system serving a 167.9-acre commercial development in Broward County known as Pembroke Center and issue ERP No. 0600095-S-15
(Permit) to Arthur D. Weiss, Trustee (Weiss). The primary contested sub-issues involve the extent of use of offsite mitigation of the project's wetlands impacts through purchase of credits purchased from Florida Power and Light Company (FPL's) Everglades Mitigation Bank (EMB) 40 miles away in southern Dade County.
PRELIMINARY STATEMENT
On August 24, 2001, SFWMD referred to DOAH the unverified Petition for Administrative Hearing on Intended Agency Action (Petition) filed by Broward County to challenge the issuance of the Permit. The referral included Weiss's Motion to Intervene and Motion for More Definite Statement; the former was granted, and the latter was denied. Final hearing was scheduled in Fort Lauderdale for January 23-25, 2002, and discovery commenced.
On November 9, 2001, FPL filed a Petition for Leave to Intervene as Additional Respondent. FPL was granted leave to intervene over Broward County's objection that FPL had no standing. The County's Motion to Dismiss FPL's intervention on the same ground was denied.
On December 20, 2001, Broward County filed a Joint Motion for Continuance of Final Hearing, which only FPL opposed; and FPL filed a Motion for Summary Recommended Order on the ground that no evidentiary hearing was warranted in view of court
decisions holding that sufficiency of mitigation of wetlands impacts is a conclusion of law within the exclusive authority of the agency with final order authority. On January 9, 2002, an Order Granting Continuance and Re-Scheduling Hearing for April 17-19, 2002, was issued. On January 17, 2002, an Order Denying Summary Recommended Order was issued.
On February 19, 2002, Broward County filed a Motion for Leave to Amend Petition. No response was filed except for Weiss's Motion to Strike Certain Allegations in Broward County's Amended Petition for Administrative Hearing on Intended Agency Action, in which both SFWMD and FPL concurred. On March 5, 2002, an Order Granting Leave to Amend was entered, and the County's unverified Amended Petition was filed on March 11, 2002. The County neither concurred nor filed a response in opposition to Weiss's motion to strike, but an Order Denying Motion to Strike was entered on March 12, 2002.
On March 12, 2002, Broward County filed a Motion for Continuance. Weiss and FPL filed responses in opposition, and a telephone hearing was held. On March 25, 2002, an Order Denying Continuance was entered.
On March 15, 2002, Weiss and FPL filed a Motion in Limine based on mitigation bank statutes and a settlement Agreement between the County and FPL in the EMB mitigation bank permit
proceeding. The Motion in Limine sought to preclude evidence on the offsite location of FPL's EMB as a factor in determining whether Weiss's application should be granted.
Based on the filings, an Order Denying Motion in Limine was entered on April 2, 2002.
On April 4, 2002, Broward County filed a Motion for Leave to File Second Amended Petition. Weiss filed a Response on April 10, 2002, stating no objection except as to paragraph 20 of the proposed Second Amended Petition. Broward County filed a Reply. The Second Order Granting Leave to Amend was entered on April 11, 2002; and the unverified Second Amended Petition was filed on April 15, 2002.
On April 8, 2002, SFWMD filed a Motion to Take Official Recognition, which was granted without objection the next day.
On April 10, 2002, the parties filed a Joint Prehearing Stipulation.
At final hearing beginning on April 17, 2002, Weiss called the following witnesses: Robert Higgins, P.E., Higgins Engineering, Inc., who was qualified as an expert in surface water engineering, wetlands resources (including both water quantity and quality), wetland hydrology, and environmental resource permitting; and W. Michael Dennis, Ph.D., Breedlove, Dennis & Associates, Inc., who was qualified as an expert in wetland ecology, wetland mitigation, wetland and aquatic
dependent wildlife, and application of ERP permitting criteria. SFWMD called Robert G. Robbins, Director of SFWMD's Natural Resource Management Department, who was qualified as an expert in interpretation and application of ERP criteria, wetlands ecology, wetland biology, wetland dependent wildlife ecology, wetlands mitigation, and wetlands delineation. FPL called the following witnesses: Steve Collins, FPL's Asset Manager, who was qualified as an expert in mitigation bank administration; Ann Redmond, Regional Manager of Ecological and Water Resources for the consulting firm WilsonMiller, who was qualified as an expert in mitigation, mitigation banking and environmental resource; and Donaldson Hearing, principal of the landscape architecture firm of Cotleur & Hearing, who was qualified as an expert in mitigation and environmental resource permitting. The County called the following witnesses: Eric Myers, Director of the Biological Resources Division of Broward County's Department of Planning and Environmental Protection (DPEP), who was qualified as an expert in areas of natural resource planning and regulation including development, interpretation and implementation of Broward County's wetland and upland regulatory programs, general ecological conditions in Miami-Dade County and Broward County, and large-scale ecological evaluation and mitigation planning projects; Kathryn Cartier, Natural Resource
Specialist IV/Engineer III in Broward County DPEP's Wetlands and Uplands Resources Program, who was qualified as an expert in Broward County wetlands regulation, including implementation and interpretation of Broward County Code, wetland delineation, wetland functional assessment, wetland mitigation design requirement and success criteria for wetland creation, restoration and enhancement, wetland mitigation success evaluation, including wetland hydrology and wetland plant communities; John Volin, Ph.D., Chair of and associate professor of plant physiological ecology in the Division of Biological Sciences, Florida Atlantic University, who was qualified as an expert in plant physiological ecology, functions and performance of plants in their environment, plant establishment, growth and reproduction, Everglades ecology, plant community ecology, and restoration ecology; and Thomas E. Lodge, Ph.D., Senior Ecologist and National Technical Director for the consulting firm of EA Engineering, Science and Technology, who was qualified as an expert in Everglades ecology, terrestrial, freshwater, estuarine, and shallow-marine environments, wetland hydrologic requirements, including local and federal regulatory procedures/requirements, water quality, threatened and endangered species and species of special concern, ichthyology, ERP regulations and SFWMD's Basis of Review (BOR)
for ERP permit applications. In rebuttal, FPL called Frederick Schanholtzer, Ph.D., Principal Biologist/Ecologist with the consulting firm of Foster Wheeler Corporation, who was qualified as an expert in wildlife ecology ornithology; and SFWMD recalled Robbins.
During final hearing, the following exhibits were admitted in evidence:
Ex. 1: Weiss ERP Application
Ex. 2: SFWMD Requests for Additional Information (RAIs) (a-l)
Ex. 3: Responses to SFWMD's RAIs (a-l)
Ex. 4: SFWMD Staff Report
Ex. 5: SFWMD Governing Board Backup Memo Ex. 7: Cumulative Impacts White Paper
Ex. 8: SFWMD's C-9 West Drainage Basin Map
Ex. 11: Location map identifying location of Weiss property, FPL's Everglades Mitigation Bank and Service Area
Ex. 13: August 9, 2001 ERP permit issued to Weiss Ex. 14: 1977 permit issued to Weiss
Ex. 15: 1988 permit for Weiss property, as modified Ex. 16: Development plan for Weiss property (drawings) (a&b)
Ex. | 17: | Wetlands mitigation plan for Weiss property |
(drawing) | ||
Ex. | 18: | Orthoquarterquad aerial photograph of Weiss |
property | ||
Ex. | 19: | Aerial photograph of C-9 West Basin |
Ex. | 21: | John Henry Davis map |
Ex. | 22: | Excerpt from John Henry Davis text |
Ex. | 24: | Broward County Soils map |
Ex. | 43: | Dade County Soils within the EMB Phase One |
Ex. | 49: | Curriculum Vitae of Kathryn Cartier |
Ex. | 50: | Curriculum Vitae of Steve Collins |
Ex. | 54: | Curriculum Vitae of W. Michael Dennis |
Ex. | 56: | Curriculum Vitae of Donaldson Hearing |
Ex. | 56: | Curriculum Vitae of Robert Higgins |
(a) | ||
Ex. | 57: | Curriculum Vitae of Thomas Lodge |
Ex. | 58: | Curriculum Vitae of Eric Myers |
Ex. 59: Curriculum Vitae of Ann Redmond Ex. 60: Curriculum Vitae of Robert Robbins Ex. 62: Curriculum Vitae of John Volin
Ex. 67: Letter from Dan Cary to Jeffrey Adair dated (i) 10/21/98
Ex. 78: Plant species list (a)
Ex. 81: Federal Mitigation Bank Instrument Ex. 82: Sketch of layout of EMB
Ex. 83: Sketch of location of EMB
Ex. 84: Photographs of portions of EMB (a-w)
Ex. 85: List of aquatic species that reside in EMB Ex. 86: WRAP and W.A.T.E.R. analyses
Ex. 87: WRAP and W.A.T.E.R. analyses
Ex. 88: Sketch showing where credits of EMB have been used
Ex. 89: Settlement agreement between Broward County & FPL
Ex. 90: Photographs of Weiss parcel (a-r)
Ex. 95: South Florida Wading Bird Colonies Ex. 96: Regional Wading Bird Colonies
Ex. 97: Wetlands area in C-9 West Basin (Current Conditions)
Ex. 98: Wetlands area in C-9 West Basin (Prospective Future Conditions)
Ex. 103: ERP Criteria Checklist
Ex. 104: Location and Distance of Impacts Offset at Florida Wetlands Bank
Ex. 105: Vegetation Zonation at EMB
Objections to the County's offer of Ex. 6 (OPPAGA Report) are sustained.
After presentation of evidence, a Transcript of the final hearing was ordered; and the parties requested and were given
30 days from the filing of the Transcript to file proposed recommended orders (PROs). The Transcript (1126 pages in eight volumes) was filed on June 6, 2002, making PROs due
July 8, 2002. Each party filed a PRO, and all PROs have been considered.
FINDINGS OF FACT
Some General Background on the Weiss Site
The Weiss project site, which includes wetlands and open-water ditches, is located immediately east of Interstate Highway 75 in Broward County, south of Pines Boulevard, and north of the planned Pembroke Road fly-over of I-75.
Before the drainage projects of the twentieth century, the Weiss site was a part of the Everglades having “ridge and slough" characteristics. The Atlantic Coastal Ridge extends along Florida's East Coast from Palm Beach County through Miami at a distance of some ten miles or so inland, then continues in a southwesterly direction, and ends in the vicinity of Homestead and Florida City. Before significant development of south Florida, the ridge acted as a dam to surface water flow, containing most of the interior waters of the Everglades. Lower elevations of the ridge, referred to as the “Transverse Glades,” allowed limited surface water to flow to the Atlantic Ocean, creating a southeasterly flow within the eastern portion of the Everglades.
The "ridge and slough" provided a complex community structure, varying from the longest hydroperiod wetlands in
the deepest sloughs to interspersed tree islands which provided habitat at or above the seasonal high water levels. In the deeper slough areas, vegetation would be predominantly floating and submerged. The deeper slough areas served to preserve aquatic organisms during periods of drought, allowing fish and other aquatic organisms to return to areas as they were re-hydrated. Progressing up the edges toward the ridge area, there would be emergent plants, such as Pontederia or pickerelweed, as well as some sawgrass. The ridges in the ridge and slough communities were primarily sawgrass.
Before development, much of the ridge and slough communities was characterized by relatively long hydroperiods. Peat soils accumulated because the long hydroperiod inhibited aerobic respiration, resulting in an accumulation of partially decomposed organic matter/peat soils. Due to the peat soils, the sawgrass in the ridge and slough communities was relatively tall, thick, and lush.
As drainage canals were constructed through these low-lying areas, the rate of drainage to the Atlantic Ocean increased, and the water regime changed. The South Broward Drainage District (SBDD) S-3 Basin was issued SFWMD Permit No. 06-00095-S on February 10, 1977, to construct a regional water management system to serve 5,500 acres of agricultural, recreational, residential, and undeveloped lands. SBDD's S-3
Basin includes an internal canal system and two 45,000 gallons per minute pumps discharging into C-9 canal. Both SFWMD's Western C-9 Basin and the Weiss site are within SBDD's S-3 Basin.
An east-west SBDD canal approximately bisects the Weiss site. Also receiving water from Century Village, a development of some 9,000 town homes and condominiums, this canal leads to the SBDD's main north-south canal, which leads to the pump station approximately four miles to the south, which drains the entire S-3.
East of the Weiss site has become very urbanized, with a nursery, a small office building, warehouses, shopping centers, Century Village, and the City of Miramar Sewage Treatment Plant. The land to the south of the site is undeveloped but is designated and zoned planned industrial.
The Weiss project site subject to this permit proceeding is part of a larger Weiss parcel that received a permit in 1988 for construction and operation of a 375-acre cattle ranch. As a result of that permit, ditches and dikes were constructed to interconnect with the backbone surface water management system operated by the SBDD. The Weiss site now consists of these previous agricultural drainage ditches and flood control canals. The onsite wetlands have been degraded by drainage by these ditches and canals, by being
actively mowed for cattle pasture, and by invasion of melaleuca, an undesirable invasive exotic species which dominates in the areas not regularly mowed for cattle pasture.
Modification Application
On May 9, 1997, R.J. Pines Corporation, on behalf of Weiss, submitted Application No. 970509-10 for modification of Permit No. 06-00095-S, to construct a surface water management system to serve 213 acres of residential and commercial development.
SFWMD submitted Requests for Additional Information (RAIs) on June 6, 1997, February 6, 1998, February 27, 1998, May 1, 1998, April 15, 1999, June 16, 1999, April 14, 2000, August 24, 2000, October 6, 2000, and February 22, 2001.
Responses to the RAI's were received on January 29, 1998, March 30, 1998, April 1, 1998, March 17, 1999, May 13,
1999, | May 14, 1999, May 18, | 1999, July 28, 2000, September 7, |
2000, | January 18, 2001, and | March 2, 2001. |
During approximately four years of application review (including RAIs and responses), changes were made to the original application. The overall size of the project was decreased, and various mitigation options were explored. From early on in the process, offsite mitigation was proposed.
Various possibilities for offsite mitigation were explored. Some were within SFWMD's Western C-9 Basin; others were outside but relatively close to the Western C-9 Basin.
One 86-acre parcel within the Western C-9 Basin known as the "Capeletti" parcel was rejected for having a less-than-ideal operational entity (as well as for being costly); yet, the majority of the Capeletti parcel has been sold to private parties for mitigation projects, and 14 acres remain available for purchase for mitigation.
Eventually, all offsite mitigation possibilities were rejected for various reasons except for one--FPL's Everglades Mitigation Bank (EMB), 40 miles to the south in southern Dade County. Ultimately, Weiss decided to purchase wetlands mitigation credits at the EMB for use as offsite mitigation. Different combinations of onsite mitigation and EMB credits were then proposed and considered.
At the conclusion of this phase of the application process, the total size of the proposed project was reduced to
167.9 acres. Of the total project, approximately 149 acres were jurisdictional wetlands; the rest was open water ditches and canals. Ultimately, Weiss proposed to preserve and enhance 24.4 acres onsite as partial mitigation; the balance of the proposed mitigation consisted of 50.25 wetlands credits at FPL's EMB, which Weiss agreed to purchase from FPL.
On April 25, 2001, SFWMD issued a notice of intent to issue the Staff Report recommending conceptual approval of the ultimately proposed surface water management system to serve the 167.9 acre commercial development known as Pembroke Center, Application No. 970509-10, ERP Permit No. 06-00095-S- 15.
Existing Onsite Wetlands
There are three classes of wetlands at the Weiss project site: sawgrass prairie; marsh wetlands; and remnant tree islands. The dominant wetland type is the sawgrass prairie. Sawgrass dominates in these areas, but some other wetland species like sedges and rushes and other grasses are mixed in. Marsh wetlands occur in places where elevations are somewhat (just inches) lower. Here are found wetland marsh species such as pickerelweed, duck potato and possibly spike rush (Eleocharis species). Small bay trees exist on the remnant tree islands, as well as wax myrtle.
The soils on the Weiss site have retained their hydric characteristics; muck soils exist throughout the site. The soils have enough muck to stay saturated and allow wetland vegetation to grow on the site. But the site has been impacted by drainage and use as a cattle pasture. The vegetation is impacted to varying degrees by cattle grazing. The more highly-disturbed portions of the site, such as those
adjacent to ditches, contain dense stands of melaleuca. Were it not for grazing and regular mowing, melaleuca would spread and probably out-compete the wetland vegetation.
While it once had a long hydroperiod, the Weiss property's hydroperiod is currently diminished. The depth of the hydroperiod has been most significantly altered by the pump stations operated by SBDD. Today, the depth and duration of the hydroperiod on the Weiss site has been diminished.
Proposed Onsite Mitigation
Weiss's proposed onsite mitigation consists of preservation and enhancement of 24.4 acres of wetlands. Muck and peat topsoil will be removed, lower soils will be excavated to achieve optimal elevations, and the topsoil will be replaced. By generally lowering elevations, a regular and deeper hydroperiod will be achieved; by choosing different elevations, different types of wetland habitats (cypress stands, marsh, and tree islands) will be produced; by replacing the topsoil, wetland plant species will be able to grow and thrive in the mitigation area. Exotic plants will be removed and minimized through ongoing management of the mitigation area. Water quality will improve when the cows are removed.
EMB
The EMB is a 13,455-acre wetland preservation, enhancement and restoration project consisting of herbaceous freshwater wetlands with tree islands, saltwater marsh with tree islands, mangrove wetlands with tree islands, and riverine depressional ecological communities. The EMB was undertaken to provide mitigation to offset adverse impacts to wetlands and other surface waters, and is being undertaken in phases. Phase I of the EMB consists of 4,212 acres of the overall project.
FPL’s EMB has been permitted under Section 373.4136, Florida Statutes, with a mitigation service area for non- linear projects covering Miami-Dade, Broward, and the southern portion of Palm Beach County south of Southern Boulevard. The Florida Department of Environmental Protection (DEP) issued permits numbered 132622449 and 132637449 in 1996 authorizing the establishment, construction, and operation of the EMB.
The U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and U.S. Fish and Wildlife Service issued a mitigation banking instrument authorizing the establishment, construction, and operation of the EMB in 1998. The U.S. Army Corps of Engineers also issued Permit No. 199500155(IP-GS) authorizing the EMB. The EMB is in full compliance with these
state and federal permits and the federal mitigation banking instrument.
The EMB has 50.25 mitigation credits available on its mitigation bank ledger to be used to offset wetland impacts on the Weiss property. The 50.25 credits equate to approximately 500 acres of EMB sawgrass, marsh, and tree islands.
The EMB Phase 1 is part of the marl prairie of the Southeastern Saline Everglades. The characteristics of Phase
1 of the EMB have not changed substantially from its historic condition. (The EMB's original hydroperiod would have been somewhat longer, but efforts are being made to lengthen the hydroperiod as part of the EMB mitigation project.)
The EMB Phase 1 is characterized by sawgrass- dominated marl soils, interspersed with depressional areas where peat soils typically occur. Plants in the marl areas are dominated primarily by sawgrass that is relatively short and sparse compared to a "ridge and slough" area, with other emergent and occasional floating plants in low ponded areas, and thicker sawgrass and tree islands in the areas of peat soils in low areas.
The predominance of marl in the EMB results from a historical hydroperiod (generally between one and a half and five months) that is shorter than in a "ridge and slough."
The shorter hydroperiod prevents the formation of peat soils through exposure to the air, allowing bacteria to break down the organic matter that is typical of peat soils. Marl forms on the soil when photosynthesis of algae during daylight hours pulls carbon dioxide out of the water and raises the water's pH to the point where calcium carbonate starts to come out of solution.
Compared to the structurally more complex peat-based wetland community of the "ridge and slough," the marl prairie of the EMB Phase 1 is a relatively simple community. The ridge and slough community's areas of deep water, marshes, and uplands supported a variety of aquatic organisms and wildlife in a manner that is distinct from that provided in the marl prairie of the EMB Phase 1. Marl prairie is not as conducive to rookeries as ridge and slough communities because the tree islands in marl prairies afford less protection from predation than is characteristic of the ridge and slough communities.
Despite these differences, the wetlands in the EMB are similar in many ways to the historic wetlands on the Weiss property. In addition, due to its size and location in relation to other undeveloped land, the EMB retains characteristics that appear to have been lost to the Weiss property, which is relatively isolated by surrounding development and urbanization.
The EMB is surrounded by public lands acquired for conservation and preservation including the Biscayne National Park, Everglades National Park, and the District's Southern Glades property. The EMB provides valuable habitat for a number of threatened or endangered species. The EMB also provides foraging, resting, and roosting opportunities for numerous wading birds including little blue herons, snowy egrets, white ibis, great blue herons, and great egrets. Because of the way it provides base flow and detrital export to Biscayne Bay, its connection and relationship to surrounding publicly-owned lands, and its integration into the Everglades Restoration Project, the EMB significantly contributes to a regional integrated ecological network. For example, the EMB can assist other key resources such as the Everglades National Park and provide habitat to some larger top-order consumers that historically also would have used the Weiss property--such as deer, bobcats, panthers, and even
bear--something onsite mitigation cannot do.
Application of SFWMD Policies and Interpretations
Wetland protection is one of three major components of the ERP Program. The intent of the wetlands protection criteria in the ERP Program is to ensure no net loss of wetland function. In other words, SFWMD determines what functions are provided by the wetlands to be developed, which
wetland-dependent wildlife benefits from those functions; then taking any proposed mitigation into consideration, SFWMD attempts to ensure that those functions are not diminished.
Reduction and Elimination of Wetlands Impacts
SFWMD's BOR 4.2.1. provides that design modifications to reduce or eliminate adverse impacts must be explored. After implementation of practicable design modifications, any adverse impacts must be offset by mitigation.
In this case, Weiss ultimately proposed to preserve and enhance 24.4 acres of onsite wetlands. This was a modification of earlier proposals for 11 acres of onsite mitigation and then for all offsite mitigation.
The evidence did not prove that there were no other practicable design modifications to reduce impacts to wetland functions. However, SFWMD does not necessarily require that all wetland impacts be reduced or eliminated when wetlands are of low quality and the proposed mitigation will provide greater long-term ecological value than the area of wetland to be adversely affected. See BOR 4.2.1.2(a).
BOR 4.2.2.3 balances five factors to determine the functional value of wetlands: condition; hydrologic connection; uniqueness; location; and fish and wildlife utilization.
The condition of the Weiss site's wetlands is low because past alterations in hydrology have been deleterious. Due to the ditches and canals, not much water quality treatment of the site's runoff occurs onsite. In addition, the Weiss site contains exotic vegetation, which would overrun the wetlands without regular mowing. Even the County's experts agree that the condition is at the high end of low.
In evaluating hydrologic connection, SFWMD considers the following parameters: (1) benefits to offsite water resources through detrital export; (2) base flow maintenance;
(3) water quality enhancement; and (4) nursery habitat. The Weiss property does not have much opportunity for detrital export, as it is not a saltwater system. The site does not maintain base flow, which is controlled by SBDD's pump station. Since little onsite water quality treatment occurs, neither onsite nor offsite water quality is enhanced; to the contrary, use of the wetlands as cow pasture would tend to reduce water quality both onsite and offsite. (Much greater reductions would be expected if the property were being used as a feed lot instead of for pasture.) There is not much opportunity for nursery habitat. In consideration of these parameters, the hydrologic connection is at least low; and some of the parameters are negative.
The County contends that the ditches and canals on the Weiss site provide nursery habitat and serve as refugia for aquatic species in times of drought. However, the ditches and canals themselves are not jurisdictional wetlands. There are some depressions in the wetlands that might stay wet during some drought conditions, but the evidence did not suggest that these areas would serve as significant nursery habitat or refugia.
SFWMD measures the uniqueness of wetlands by determining whether the wetland type is underrepresented in the basin or watershed--in other words, the relative rarity of the wetlands. The Weiss wetlands are not unique because drained wetlands converted to a cow pasture are not underrepresented in Broward County. While noting that cow pasture is decreasing in Broward County, even the County's expert agreed that the Weiss wetlands are not unique.
As the County points out, the Weiss wetlands have some opportunity to interact with the other water resources in this basin, particularly the other mitigation sites. The County owns conservation easements on mitigation sites in the vicinity and has attempted to work with SFWMD and developers to group mitigation projects near each other to achieve greater benefits. Nonetheless, the opportunity for interaction is limited due to the surrounding development,
which includes Interstate Highway 75 and other barriers to land animals. As a result, the parties agree that the location is in the low-to-moderate range.
Fish and wildlife utilization of the Weiss wetlands is low. A wetland typically provides the following functions or benefits to wildlife: resting; feeding; breeding; and nesting or denning, particularly by listed species. Due to reduced hydrology and the presence of exotic species, the Weiss wetlands cannot provide this entire suite of functions; instead, it only provides resting and limited foraging for wading birds.
SFWMD's determination as to fish and wildlife utilization of the site was based on personal site visits by SFWMD staff and in-house knowledge of the Western C-9 Basin. During the site visits, wading birds were not seen foraging onsite, and there was little evidence of successful foraging or actual use of the Weiss site by wading birds.
Even if wading birds attempted to use the site for foraging and were successful to an extent, no witnesses testified to abundant food sources. Most saw no crayfish, a good food source, or any signs of crayfish, such as "chimneys" of tunnels leading into the water table. Several witnesses questioned whether there was enough relatively soft soil over many portions of the site to allow for tunnels into the water
table. One Broward County witness testified to seeing limited evidence of crayfish at the site. But overall the evidence was persuasive that the site probably does not have enough food to make it worthwhile foraging for large numbers of birds.
Ironically, most foraging on the site would be expected to occur in ditches not actually part of the jurisdictional wetlands. The evidence suggested that relatively little foraging would be expected to occur in the wetlands themselves. In addition, the wetlands would be less suitable for foraging if the cattle pastures were not grazed and mowed on a regular basis.
Broward County criticizes SFWMD for not conducting lengthy wildlife surveys and for not visiting the site during the dry season when wading birds might be more likely to use the site for foraging. But SFWMD's review for fish and wildlife utilization on the Weiss site was consistent with the customary review conducted in nearly all ERP applications. A wildlife survey was not necessary to analyze the fish and wildlife utilization of the Weiss wetlands.
It should be noted that SFWMD does not use the Wetland Rapid Assessment Procedure (WRAP), the Wetland Benefit Index (WBI), or the Wetland Quality Index (WQI) indices to determine the functional value of wetlands. There was some
evidence that the overall quality of the Weiss wetlands could have been rated as high as moderate using some of these methods. But these methods do not necessarily attempt to make the same determination required under BOR 4.2.2.3. In addition, while these methods purport to objectively quantify wetlands evaluations, the evidence was that they are not easily understood or uniformly applied; as a result, they do not eliminate subjectivity and possible manipulation.
Giving deference to SFWMD's interpretation of the parameters of BOR 4.2.2.3, it is found that SFWMD correctly assessed the function of the Weiss wetlands as being low.
The proposed onsite mitigation clearly would improve the ecological value of the currently low-functioning wetlands on those 24.4 acres. In particular, better foraging opportunities for wading birds as well as other wetland- dependent species will be made available there for a greater portion of the year. However, the evidence also was clear that preservation and enhancement of the 24.4 acres would not replace the wetland function of the entire 149 acres of impacted wetlands.
The proposed offsite mitigation through purchase of
50.25 credits at the EMB will be an additional improvement in ecological value over the existing wetlands on the Weiss site. The EMB is managed for exotic species control, has a greater
opportunity for wildlife utilization, and has offsite hydrologic connections, both in receiving waters and downstream.
Taken together, the proposed onsite and offsite mitigation would be an improvement in ecological value from the current, low-functioning wetlands on the Weiss site.
Offsite Mitigation Provides Greater Improvement In Long-Term Ecological Value Than Onsite Mitigation (BOR 4.3.1.2)
Due to its location, size, and prospects of effective long-term management, mitigation at the EMB probably has higher likelihood of success than mitigation on the Weiss site. But the evidence was clear that onsite mitigation also has good likelihood of success, comparable to mitigation at the EMB.
Onsite mitigation will provide better forage habitat for some of the wading birds than the Weiss wetlands do today, but it is limited by size and location and will never be able to provide all of the functions that the Weiss wetland provided historically. It will provide some forage habitat for wading birds, but not for some of the larger consumers that historically used the site, such as deer, bobcats, panther and bear. No matter how perfect onsite mitigation is, its function still is limited.
By comparison, mitigation at the EMB has greater opportunity for improvement and ecological value than mitigation at the Weiss site. The EMB is connected to other water resources, and it is not limited by lack of size or location. For this reason, the purchase of 50.25 credits at EMB has an opportunity to result in greater improvement in ecological value than just onsite mitigation.
Unacceptable Cumulative Impacts (BOR 4.2.8)
In this case, Robert Robbins conducted SFWMD's cumulative impacts analysis; Weiss and FPL relied on Robbins's analysis. In conducting his analysis, Robbins relied on his knowledge of the Western C-9 Basin, his staff's knowledge of the Basin, aerial pictures of the Western C-9 Basin, and County Exhibits 97 and 98. Robbins also interpreted and applied SFWMD's statutes, rules, and BOR 4.2.8. His interpretations were guided by the "Cumulative Impacts White Paper" ("White Paper"), a memorandum authored by representatives of Florida’s Water Management Districts, including Robbins.
Since other rules and regulations require that all wetland impacts be fully mitigated, the cumulative impact analysis only applies when an applicant proposes mitigation outside of a drainage basin.
In the context of impacts to wetland functions, SFWMD's cumulative impacts analysis presumes that a particular basin (in this case the Western C-9 Basin) can only tolerate so much loss of wetland function before there is a significant adverse impact on the basin overall; if cumulative impacts reach that point, they are considered unacceptable. The "White Paper" analogizes such a cumulative impact to "the straw that breaks the camel's back." If cumulative impacts of a proposed project would be unacceptable, they would have to be reduced so that impacts would be equitably distributed among the applicant and prospective developers, and there would not be a significant adverse or unacceptable cumulative impact when the basin is fully developed.
The cumulative impact analysis presumes that development will continue to the extent that land use and planning and zoning allow such development to continue. It also presumes that how SFWMD permits a development today will set the precedent for like applicants in the future.
SFWMD's cumulative impacts analysis does not focus on how much wetland acreage is leaving the basin; rather, it is concerned with the wetland functions that are being lost. In this case, the only functions being lost at the Weiss site are opportunities for resting and limited foraging for wading birds.
Neither the statutes, rules, BOR 4.2.8., nor the White Paper further defines unacceptable or significant adverse cumulative impact on wetland functions. Robbins interpreted the terms in the context of this case as being a cumulative impact that would place the wading bird population in a basin in jeopardy of collapse. Collapse would occur when the population no longer is sustainable. Collapse could lead to extirpation of the population from the Basin.
In this case, 124.9 acres of low-functioning wetlands will be impacted, and 24.4 acres of higher- functioning mitigation will remain in the basin. The evidence was that the 24.4 of higher-functioning mitigation onsite would not offset all of the feeding and resting functions lost to the Western C-9 Basin by 124.9 acres of impacts. But Robbins expressed the opinion that there would not be a significant adverse impact to the wading bird population which relies on the feeding and resting functions within the Western C-9 Basin if the relatively few remaining wetlands in the Western C-9 Basin are developed in a fashion similar to the Weiss proposal because the wading bird population that utilizes the basin would not be placed in jeopardy.
However, the evidence was clear that Robbins viewed 25% in-basin mitigation as the minimum required to avoid unacceptable cumulative impacts and that Robbins based his
opinion on an assumption that, under Weiss's mitigation proposal, 25% of the total wetland mitigation required to offset impacts to wetland functions would remain within the Western C-9 Basin. But the evidence also is clear that Robbins's assumption was incorrect.
Robbins began to explain his assumption by referencing an earlier proposal by Weiss to mitigate entirely offsite through purchase of 67 credits at the EMB. Robbins testified that he accepted 67 EMB credits as enough to offset wetland impacts. However, in applying his cumulative impacts analysis, Robbins rejected the proposal for all mitigation to be offsite at the EMB; instead, Robbins and SFWMD decided to let Weiss use 75% of the 67 EMB credits but required the balance of the "credit-equivalents" of mitigation to occur onsite. Eventually, Weiss made the proposal eventually accepted by Robbins and SFWMD: 149 acres of impact; 24.4 acres of mitigation onsite; and 50.25 credits of mitigation at the EMB.
In further explanation, Robbins later responded to
the following questions:
THE COURT: So the 24 acres of on-site you said that is equivalent of about 48 credits?
THE WITNESS: No, 12. The on-site is the ecological value of about half a credit, so it takes twice as much on-site
mitigation to offset one acre of impact as it would take in the bank.
THE COURT: So 12 of the 67 leaving
55?
THE WITNESS: No, that mixes up apples
and oranges.
If I can back up, from the starting point of 67 credits that were being proposed, and I said 75 percent of that they could do, 75 percent of 67 is 50.25 credits and that's where the 50.25 comes from and that offsets about 100 acres of impact and that leaves about 24 and half acres of impact to be mitigated and that is the 24.4 acres on-site. (TR454, L25 – TR455, L21 [Robbins]).
As the County states in its PRO, Robbins himself "was mixing apples and oranges, by switching between credits and acres, and by subtracting the product of one denominator (75 percent of 67 credits) from a smaller denominator (62.45 credits), he apparently assumed that the resulting product (24.4 acres [or 12.2 credits]) was 25 percent of the denominator (124.9 acres), when it was only 19.5 percent." (County's PRO, p. 8)
While the County's math terminology may not be correct, it does appear that Robbins indeed "mixed apples and oranges" by confusing two earlier Weiss mitigation proposals. An earlier SFWMD RAI, dated June 16, 1999, referenced an "overall requirement for 67 credits of wetland mitigation for the 135 acres of proposed wetland impact." Weiss's subsequent
application amendment dated March 2, 2001, stated that the wetlands impact would be 124.9 acres, and that the total mitigation credits for the project would be 62.45 mitigation credits. (Exh. 2G, p. 2; Exh. 3L, p. 2). In his analysis, Robbins appear to have taken the number of mitigation credits from the first proposal and the acreage of wetland impacts from second.
Under both the proposal referenced in the SFWMD RAI, dated June 16, 1999, and Weiss's subsequent application amendment dated March 2, 2001, EMB mitigation credits were assigned to the wetland impacts of the project on a 0.5:1 ratio; in other words, one EMB credit (which represented ten acres of the EMB Phase 1) offsets the impacts of two acres of wetlands lost through impact. As a result, 50.25 EMB credits offset 100.5 acres of wetlands lost through impact. In addition, each acre of onsite mitigation counted as half an EMB credit and would offset one acre of wetlands lost through impact. As a result, the 24.4 acres of onsite mitigation was the equivalent of 12.2 EMB credits of mitigation and offset
24.4 acres of wetlands lost through impact. As the County asserts, using these numbers, whether credits of impact and offset or acres of impact and offset are compared, only 19.5% of the proposed mitigation appears to be occurring onsite and in-basin.
Expressed another way, 62.45 EMB credit equivalents was found by Robbins to be necessary to offset impacts to wetland functions from the Weiss project. To achieve the 25% in-basin mitigation found by Robbins to be the minimum, 15.61 EMB credit equivalents would have to remain in-basin, according to Robbins. Yet under the Weiss's current proposal, only 12.2 EMB credit equivalents remain in-basin (in this case, onsite).
To meet the minimum requirement testified to by Robbins, Weiss would have to increase onsite mitigation by approximately 6.8 acres or otherwise increase in-basin mitigation. It should be noted in this regard that the "White Paper" would count as in-basin mitigation "outside the impact basin, but close enough to the impact basin that certain functions 'spill over' and offset impacts in the impact basin to an acceptable level."
The County also disputed Robbins's opinion that 25% in-basin mitigation was the minimum required to avoid unacceptable cumulative impacts. The County contended that the percentage of in-basin mitigation would have to be much higher to avoid unacceptable cumulative impacts, at least 50%. In part, the County based its position on the regulatory history in the Western C-9 Basin. The evidence was that approximately 33% of project wetlands remained after
development in the County's portion of the Western C-9 Basin and that approximately 85% of the wetland functions remained onsite after mitigation.
Robbins explained adequately why 25% in-basin mitigation is enough under current circumstances. The Western C-9 Basin is now largely urbanized and developed with limited potential for new development. The Basin has approximately 4,500-5,000 acres of already preserved, relatively highly functioning wetlands. There remains approximately 250 to 450 (worst case scenario) acres of somewhat degraded wetlands that are yet to be developed. Robbins testimony is accepted that, if at least 25% of mitigation for wetland impacts from future development remains in the Western C-9, adverse cumulative impacts can be avoided.
The County also questions the assumption that all 4,500-5,000 acres of relatively highly functioning wetlands in the Western C-9 Basin will be preserved to provide for resting and foraging for wading birds. In support of its position, the County presented evidence that consideration is being given to using the Buffer Strip to the east of U.S. Highway 27 for conveyance and using the Water Preserve Area (WPA) to the west of U.S. Highway 27 for impounding and stacking water up to four feet high for water management purposes, without regard for wildlife or wetland functions. However, Robbins
believes, logically, that even if the decision-making authorities (SFWMD, DEP, and the United States Army Corps of Engineers) were inclined to use wetlands to impound water for storage purposes, they would try not to sacrifice highly- functioning wetlands for this purpose, if at all possible. He pointed out that, also militating against use of highly- functioning wetlands in such a way, the relatively high east- to-west transmissivity of groundwater in western Broward County would limit the amount of water that could be "stacked" in the area for any significant length of time. He pointed out that some wetlands in western Broward County have been rejected for use to impound and store water for these reasons. Robbins thinks it is more likely that the Buffer Strip and a good part of the WPA will be restored to marsh-type wetlands and that highly-functioning wetlands will be preserved.
Robbins also assumed that, even if highly-
functioning wetlands in the WPA were used to impound water, the decision-making authorities would have to obtain a permit from SFWMD, which would require mitigation for impacts to wetlands and require at least 25% of the mitigation to remain in the Western C-9 Basin. As a practical matter, Robbins questioned the feasibility of meeting such a requirement.
Finally, the County questions Robbins's definition of unacceptable cumulative impacts. Based on the testimony of
several of its witnesses, the County took the position that it is imprudent and risky to set the threshold of unacceptable cumulative impacts at the point where the wading bird population that utilizes the Western C-9 Basin would be placed in jeopardy of collapse. Indeed, such a high threshold is not without risk. The County urges a lower threshold--namely, the point where the ability of the local wildlife population to maintain its current population would be negatively impacted. But such a low threshold would have the effect of allowing practically no cumulative impacts.
It is found that, under these circumstances, deference should be given to Robbins's interpretation. His interpretation was reasonable, and none of the County's witnesses had anywhere near Robbins's experience and expertise in interpreting SFWMD's rules and BOR provisions.
Secondary Impacts (BOR 4.2.7)
Almost the entire Weiss site (except for the proposed onsite mitigation area) will be directly impacted. There is little opportunity for secondary impacts.
Construction methodologies for the proposed project do not have an opportunity to cause any secondary impacts to wetland functions. In any event, Weiss will construct a minimum 15-foot, average 25-foot, wide buffer around the proposed onsite wetlands mitigation area to protect wetland
functions there. To ensure no adverse impacts to wetland functions after construction, the buffer will be planted with tree species to provide a buffer between the onsite mitigation and the future proposed development.
The Weiss project site has only 19 acres that are "nonwetlands." Those are mainly deepwater canals, not uplands. None of the 19 acres are used by wetland-dependant species for nesting or denning.
The only archeological site on the Weiss project site is a small one along I-75, and it is being preserved.
SFWMD's Staff Report is for a conceptual ERP which covers the entire project site. There will not be additional phases of development. In addition, a conservation easement will ensure against the expansion or phases encroaching into the preserved wetland areas.
The evidence was that there will be no adverse secondary impacts from the Weiss project. There was no evidence to the contrary.
Public Interest Test (BOR 4.2.3)
Prongs (a), (c), and (d) of the "public interest test" (dealing with adverse effects on the public health, safety or welfare or the property of others, navigation, and fishing, recreational values or marine activities) do not apply in this case.
Prong (b) of the public interest test deals with the wetland functions relative to fish and wildlife. Due to the mitigation proposed in this case, there will not be a net adverse impact to fish and wildlife or listed species. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse impact to fish and wildlife or listed species.
Prong (e) considers whether the regulated activity will be of a temporary or permanent nature. The permit at issue in this case is a conceptual approval only and does not authorize any construction. However, it is anticipated that any future construction would be of a permanent nature.
Prong (f) considers adverse effects on historical or archeological resources. As indicated under secondary impacts, the only archeological site on the Weiss project site is a small one along I-75, and it is being preserved.
Prong (g) considers the current condition and relative value of functions being performed by the areas affected by impacts. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of
onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse affect in those functions.
Standing of Broward County and FPL
The evidence was that, in part as a result of the County's work with SFWMD and developers over the years, mitigation projects in Broward County have been grouped so as to coordinate and achieve greater benefits. Collocation and proximity of mitigation areas makes the whole of them function better than the sum of their parts through coordination and interactive effect. Collocation and proximity of mitigation areas helps the mitigation areas to be more easily recognized and utilized by wading birds. Weiss's use of EMB credits for over 75% of the total required mitigation affects the County's substantial interest in the effectiveness of mitigation areas in the County.
There also was evidence that mitigation areas within Broward County provide benefits to the citizens of Broward County in terms of improved environmental quality, water quality, wildlife, and quality of life. But as explained in the Conclusions of Law, the County's standing cannot be based on that evidence.
CONCLUSIONS OF LAW
Standing of Broward County and FPL
In its PRO, the County asserted for the first time that it has citizen standing under Section 403.412(5), Florida Statutes. But none of the petitions filed by the County were verified, a requirement for citizen standing. (It is not necessary to decide whether Section 9, Chapter 2002-261, Laws of Florida (2002), applies to the County's Second Amended Petition.)
Section 120.52(12)(b), Florida Statutes, defines a "party" to include "[a]ny person . . . whose substantial interests will be affected by proposed agency action "
(Other parts of the definition are not applicable.) It was held in Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478, 482 (Fla. 2nd DCA 1981):
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect.
See also Ameristeel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997).
The County asserts that it has standing under Section 120.52(12)(b), because mitigation areas within Broward
County provide benefits to the citizens of Broward County in terms of improved environmental quality, water quality, wildlife and quality of life. But a governmental entity must demonstrate that its interest in a proceeding exceeds that of its citizens. See City of Panama City v. Bd. of Trustees, 418 So. 2d 1132 (Fla. 1st DCA 1982); Hamilton County and City of Jasper v. TSI Southeast, Inc. and Dept. of Environmental Reg., 12 F.A.L.R. 3774, 1990 WL 282353 (DER 1990), aff'd 587 So. 2d
1378 (Fla. 1st DCA 1991).
The County also asserts standing under Section 120.52(12)(b), based on Finding of Fact 86, supra. It is concluded that those facts are sufficient to establish both "injury in fact which is of sufficient immediacy" and "substantial injury [that] is of a type or nature which the proceeding is designed to protect." This is sufficient proof of standing.
FPL also has proved standing to be a party in this case under Section 120.52(12)(b). The evidence proved that FPL probably will lose the full benefit of its mitigation credit agreement with Weiss if more onsite mitigation is required. It is concluded that this interest not only "is of sufficient immediacy," it also is "substantial injury [that] is of a type or nature which the proceeding is designed to protect." See Sections 373.4135 and 4136, Florida Statutes,
and SFWMD's BOR, which serve to distinguish FPL from Freeport Sulphur in Agrico.
I. Burden of Proof and Persuasion
As applicant, Weiss has the ultimate burden of proof and burden of persuasion. See Florida Department of Transportation v. J.W.C., Inc., 396 So. 2d 778, 786-789 (Fla. 1st DCA 1981). However, if Weiss presents a prima facie case of credible evidence of reasonable assurances and entitlement to the permit, the burden of presenting evidence can be shifted to the County, as permit challenger, to present evidence of equivalent quality to refute the applicant's evidence of reasonable assurances and entitlement to the permit. Id. Ward v. Okaloosa County, 11 F.A.L.R. 4217, 4236 (DER 1989). The permit challenger's burden cannot be met by mere speculation on what "might" occur. Citizens Against Blasting, Inc. v. Dept. of Environmental Protection and Angelo’s Aggregate Materials, Ltd. 23 F.A.L.R. 2463, 2001 WL 1190935 (DEP 2001); Chipola Basin Protective Group Inc., et al. v. Dept. of Environmental Reg., et al., 11 F.A.L.R. 467, 480-481, 1988 WL 185574, at *3-7 (DER 1988). But if the challenger presents evidence of equivalent quality, the question becomes whether, taking all the evidence into consideration, the applicant has proven reasonable assurances and entitlement to the permit by a preponderance of the
evidence. A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indemnity Co. v.
Perry, 5 So. 2d 862 (Fla. 1942). Findings must be supported by competent and substantial evidence-i.e., evidence a reasonable mind would accept as adequate to support a conclusion. See Degroot v. Sheffield, 95 So. 2d 912 (Fla.
1957); Agrico Chemical Co. v. Dept. of Environmental Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978).
Issuance of an ERP must be based solely on compliance with applicable permit criteria. Council of the Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983). Reasonable assurances contemplates a substantial likelihood that the project will be successfully implemented. Metropolitan Dade Co. v. Coscan Florida, Inc., 609 So. 2d 644 (Fla. 3rd DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian Trace Community Development District, 14
F.A.L.R. 866, 869 (SFWMD 1992); Manasota-88 Inc. v. Agrico Chemical Co. and Dept. of Environmental Reg., 12 F.A.L.R. 1319, 1990 WL 128587 (DER 1990); Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972, 1990 WL 282370 (DER 1990).
It has been held that the agency having final order authority has exclusive authority to determine the sufficiency of the proposed mitigation; and findings related to the sufficiency of mitigation have been held to be essentially conclusions of law and not binding. See Save Anna Maria, Inc. v. Dept. of Transp., et al., 700 So. 2d 113, 116 (Fla. 2d DCA 1997); 1800 Atlantic Developers v. Dept. of Environmental Reg., 552 So. 2d 946, 955 (Fla. 1st DCA 1989). But a DOAH ALJ has limited authority to resolve "factual disputes on mitigation." Collier Develop. Corp. v. Dept. of Environmental Reg., 592 So. 2d 1107, 1109 (Fla. 2d DCA 1991).
H. Application of ERP Criteria
SFWMD has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria under Part IV, Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code. Sections 373.413 and 373.416, Florida Statutes, authorize SFWMD to require ERP permits and impose such reasonable conditions as are necessary to ensure that the construction, operation or maintenance of any stormwater management system will comply with Part IV, Chapter 373, Florida Statutes, and the rules promulgated under those statutes, and will not be harmful to the water resources of SFWMD.
The three major components in the review of an ERP application are flood protection, water quality, and wetland protection. This case centers around the wetland protection criteria within the ERP program and the sufficiency of the proposed mitigation to offset the proposed impacts.
The statutory provisions governing this application are found in Chapter 373, Florida Statutes, particularly in Sections 373.413 and 373.414. The applicable ERP rule criteria are set forth in Florida Administrative Code Rule Chapter 40E-4. The conditions for issuance of an ERP Permit are set forth in Rule 40E-4.301 and 40E-4.302 and in SFWMD's BOR, which has been incorporated by reference into Rule 40E- 4.091(1)(a). The BOR references and elaborates on the provisions of Rules 40E-4.301 and 40E-4.302.
The pertinent portions of BOR 4.1.1 require Weiss to provide reasonable assurances that the proposed project (including its associated mitigation): (a) will not adversely impact the value of wetland functions provided to fish and wildlife and listed species; (b) will not be contrary to the public interest; (f) will not cause adverse secondary impacts to the water resources; and (g) will not cause unacceptable cumulative impacts upon wetland functions.
Requirement to Eliminate and Reduce Wetlands Impacts (BORs 4.2.1., et seq.)
BOR 4.2.1. provides that "the practicability of design modifications . . . which could eliminate or reduce impacts" is a factor to be considered in determining whether to approve an ERP. Such design modifications "must be explored, as described in subsections 4.2.1.1." BOR 4.2.1.1 states that, except as provided in subsection 4.2.1.2, if a proposal will result in adverse impacts to wetland functions, SFWMD "shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts." BOR 4.2.1.1 also defines "modification" as not to include "the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function." It also provides:
A proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable". A proposed modification need not remove all economic value to the property in order to be considered not "practicable". Conversely, a modification need not provide the highest and best use of the property to be "practicable". In determining whether a proposed modification is practicable, consideration shall also be given to the cost of the modification compared to the environmental benefit it achieves.
In this case, the evidence was that Weiss modified his proposal at least twice, once proposing 11 acres of onsite mitigation, then proposing all offsite mitigation, and finally proposing 24.4 acres of onsite mitigation. But there was no evidence to prove that there were no other practicable design modifications to reduce impacts to wetland functions under the definitions in BOR 4.2.1.1.
BOR 4.2.1.2(a) provides that SFWMD "will not require the applicant to implement practicable design modification to reduce or eliminate impacts when: (a) the ecological value of the function provided by the area of wetland . . . to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected "
BOR 4.2.2.3 describes five factors to be considered in assessing "impacts expected as a result of proposed activities on the values of functions that any wetland . . .
provides to fish, wildlife, and listed species . . . ." They are: condition; hydrologic connection; uniqueness; location; and fish and wildlife utilization. Applying these factors, it was found that the "ecological value of the function provided by the area of wetland . . . to be adversely affected is low."
It is noted that, in finding the ecological value of the Weiss wetlands to be impacted to be "low," deference has been given to SFWMD's interpretation of BOR 4.2.2.3. It has been held that an agency's interpretation of its own statutes and rules is entitled to great deference; such agency interpretations will not be overturned unless clearly erroneous or otherwise unsupported by substantial, competent evidence. See Dept. of Environmental Protection v. Goldring,
477 So. 2d 532, 534 (Fla. 1st DCA 1986); Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So. 2d 987 (Fla. 1985).
As found, Weiss's proposed mitigation would "provide greater long term ecological value than the area of wetland or other surface water to be adversely affected
. . . ." BOR 4.2.1.2(a).
Offsite Mitigation Provides Greater Improvement In Long-Term Ecological Value Than Onsite Mitigation (BORs 4.3.1. et seq.)
BOR 4.3.1.1. states:
In general, mitigation is best accomplished through creation, restoration, enhancement or preservation of ecological communities similar to those being impacted. However, when the area proposed to be impacted is degraded compared to its historic condition, mitigation is best accomplished through creation, restoration, enhancement or preservation of the ecological communities which were historically present. Mitigation involving other ecological communities is acceptable if
impacts are offset and the applicant demonstrates that greater improvement in ecological value will result.
BOR 4.3.1.2. states in pertinent part:
Mitigation is best accomplished when located in site or on close proximity to the area being impacted. Offsite mitigation will only be accepted if the adverse impacts are offset and the applicant demonstrates that:
onsite mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing land uses or future land uses identified in a local comprehensive plan adopted according to Chapter 163, Fla.
Stat.; or
offsite mitigation would provide greater improvement in ecological value than onsite mitigation.
BOR 4.3.1.3 provides that mitigation using a mitigation bank is governed by BOR 4.4. Subsection 4.4.2.1. contains the identical test as BOR 4.3.1.2 without the prefatory guidance language regarding mitigation being on-site or in close proximity to the project.
Unfortunately, as reflected in the findings, it is impossible to return the Weiss wetlands to their historical condition. The proposed onsite mitigation may result in some attributes of a "ridge and slough" wetland community but will not result in a return to the site's true historic "ridge and
slough" wetland community. Even if it were possible to achieve a perfect "ridge and slough" wetland community in the onsite mitigation area, historic conditions in their entirety would not be achieved due to the relatively small size of the mitigation area in the midst of urbanized development.
Meanwhile, as found, the EMB wetlands are similar if not identical to the historic condition of the Weiss wetlands. In addition, as found, the proposed mitigation, combining onsite mitigation with offsite mitigation at the EMB, would provide a greater improvement in ecological value than a vain and doomed attempt to restore true historic conditions to part of the Weiss site. These facts meet the requirements of BORs
4.3.1.1. and 4.3.1.2.
Unacceptable Cumulative Impacts (BOR 4.2.8)
Addressing itself to water management districts and DEP, Section 373.414(8), Florida Statutes, states:
The governing board or the department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:
The activity for which the permit is sought.
Projects which are existing or activities regulated under this part which are under construction or projects for which permits or determinations pursuant to s. 373.421 or s.
403.914 have been sought.
Activities which are under review, approved, or vested pursuant to s. 380.06, or other activities regulated under this part which may reasonably be expected to be located within surface waters or wetlands, as delineated in s. 373.421(1), in the same drainage basin as defined in s. 373.403(9), based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations.
Section 373.403(9) defines drainage basin as a subdivision of a watershed; the pertinent drainage basin in this case being SFWMD's Western C-9 Basin.
In compliance with these statutory mandates, SFWMD adopted Florida Administrative Code Rule 40E-4.302(1)(b), which adds as a condition for issuance of an ERP that the applicant provide reasonable assurances that the proposed project:
Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District.
In part, BOR 4.2.8 essentially reiterates Section 373.414(8) and Rule 40E-4.302(1)(b); in addition, it states:
Only those activities listed in paragraphs
and (b) which have similar types of
adverse impacts to those which will be caused by the proposed system will be considered. . . . The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications.
BOR 4.2.8.1 provides in pertinent part:
Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities as described in 4.2.8, as set forth in subsection 4.1.1(c), would result in . . . significant adverse impacts to functions of wetlands or other surface waters, identified in subsection 4.2.2, within the same drainage basin when considering the basin as a whole.
As found, deference has been given to SFWMD's interpretations of the statutes, rules, and BOR provision on cumulative impacts--in particular, as to the terms "unacceptable cumulative impacts" and "significant adverse impacts." But even applying those interpretations, the evidence was clear that at least 25% of the mitigation required to offset the Weiss project's wetland impacts must remain within the Western C-9 Basin or outside it but close enough that wading bird resting and foraging functions would "spill over" and offset impacts in the Western C-9 Basin. Weiss's proposed mitigation fails to meet this requirement.
More onsite mitigation or qualifying offsite mitigation is required.
As found, SFWMD's cumulative impacts evaluation assumed that, if the highly-functioning wetlands in the WPA and Buffer Strip in the Western C-9 Basin are to be developed for water storage, their development would be subject to SFWMD statutes, rules, and BOR provisions (and that, for that reason, at least 25% of the mitigation for impacts to those wetlands would have to remain onsite, be in the Western C-9 Basin, or be close enough to offset impacts to the Western C-9 Basin.) But the County argued for the first time in its PRO that Section 373.1502(3)(a), Florida Statutes, adopts a unique regulatory program for all Comprehensive Everglades Restoration Plan (CERP) projects, including the WPA, and that subsection (3)(b) of that statute provides substitute regulatory standards for permits obtained for CERP projects, including a standard for mitigation "as appropriate." None of the other parties had an opportunity to address this argument, or how it would affect the cumulative impact analysis for the Weiss project; and those questions need not be decided at this time. However, they may have to be considered and addressed in further permit proceedings in this and other cases.
Mitigation Offsets Adverse Impacts to the Wetlands and Provides Viable Ecological Functions
(BOR 4.3.3.1)
BOR 4.3.3.1 provides that applicants shall provide reasonable assurances that proposed mitigation will offset adverse impacts due to regulated activities. As already indicated in addressing, Weiss's proposed combination of onsite and offsite mitigation meets this requirement. The problem with the proposal is in its cumulative impacts.
Secondary Impacts (BOR 4.2.7)
The secondary impacts test is located in Rule 40E- 4.301(1)(f) and is further discussed in BOR 4.2.7. The County raised all prongs, (a)–(d), of the secondary impacts test.
Courts have interpreted the secondary impacts as impacts that occur outside the direct footprint of the project, but which are very closely linked and causally related to the activity to be permitted. Conservancy Inc. v. A. Vernon Allen Builders, Inc., 580 So. 2d at 777, rev. denied., 591 So. 2d 631 (Fla. 1991). A close cause and effect relationship must exist between alleged adverse impacts and the project in order to be considered during the permit review process as adverse secondary impacts. There must be a "but for" relationship"--"but for" the proposed project, the adverse impacts would not occur. Florida Bay Initiative v.
Florida Department of Transportation, 19 F.A.L.R. 3712, 3720,
1997 WL 1052403, at *22 (SFWMD 1997).
The evidence was clear that the Weiss project would not result in secondary impacts under any of the prongs in BOR 4.2.7.
Public Interest Test (BOR 4.2.3)
The public interest test is found in Section 373.414(1)(a), Rule 40E-4.302(1), and BOR 4.2.3. Since the Weiss project does not significantly degrade and is not within an Outstanding Florida Water, Weiss is required to provide reasonable assurances that his project will not be contrary to the public interest.
In determining whether the project is contrary to the public interest, seven criteria must be considered and balanced. In this case, only four are applicable: whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species; whether the regulated activity will be of a temporary or permanent nature; whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources; and the current condition and relative value of functions being performed by the areas affected by the proposed regulated activity.
As found, in this case, except for cumulative impacts, Weiss provided reasonable assurances that the project would not be contrary to the public interest.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the South Florida Water Management District enter a final order denying Application No. 970509-10 for modification of Permit No. 06-00095-S, as amended to date.
DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida.
________________________________
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2002.
COPIES FURNISHED:
Paul Sexton, Esquire Williams, Wilson & Sexton
215 South Monroe Street Suite 600-A
Tallahassee, Florida 32301-1804
Melvin Wilson, Esquire Williams, Wilson & Sexton
110 East Broward Boulevard Suite 1700
Fort Lauderdale, Florida 33301-3503
William L. Hyde, Esquire Ausley & McMullen
227 South Calhoun Street Tallahassee, Florida 32301-1805
William S. Spencer, Esquire Gunster, Yoakley & Stewart, P.A.
500 East Broward Boulevard Suite 1400
Fort Lauderdale, Florida 33394-3076
Frank E. Matthews, Esquire Eric Olsen, Esquire Hopping, Green & Sams
123 South Calhoun Street Tallahassee, Florida 32301-1517
Luna Ergas Phillips, Esquire
South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416-4680
Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416-4680
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 2002 | Agency Final Order | |
| Aug. 27, 2002 | Recommended Order | Applicant for surface water management ERP proposed more than 75% of mitigation required to offset impacts to wetland functions out-of-basin through purchase of credits at mitigation bank 40 miles away--too far to avoid unacceptable cumulative impacts. |
