STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARILYN MCMULKIN,

Petitioner,

vs.

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT and JAY AND LINDA GINN,

Respondents.

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) Case No. 02-1496

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DIANE MILLS, )

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Petitioner, )

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vs. )

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ST. JOHNS RIVER WATER ) MANAGEMENT DISTRICT and JAY AND ) LINDA GINN, )

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Respondents. )

Case No. 02-1497

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RECOMMENDED ORDER

On February 4-6, 10, and 18, 2004, final administrative hearing was held in this case in the St. Johns County Service Center in the northwest part of the County, near Jacksonville, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners Marilyn McMulkin and Diane Mills:

Deborah J. Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082-3625 For Respondents Jay and Linda Ginn:

Cindy L. Bartin, Esquire Post Office Box 861118

St. Augustine, Florida 32086-1118

For Respondent St. Johns River Water Management District: Vance W. Kidder, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177-2529 STATEMENT OF THE ISSUE

The issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and

Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.

PRELIMINARY STATEMENT

In 2001, the Ginns filed an application with the District for a Standard ERP (40-109-81153-1), seeking approval for construction and operation of a 136-unit single-family residential development on approximately 47 acres just west of

St. Augustine in St. Johns County, Florida. After review, on March 8, 2002, the District issued its Notice of Agency Action to approve the application, with conditions, through its Technical Staff Report (TSR) for ERP 40-109-81153-1.

On April 9, 2002, a Petition for Administrative Hearing (Petition) challenging the District's intended action was filed by Marilyn McMulkin; and on April 10, 2002, a second and almost identical Petition was filed by Diane Mills. On April 16, 2002, the District referred both Petitions to the Division of Administrative Hearings. The Petitions were consolidated and initially set for a final hearing in St. Augustine on August 21- 23, 2002. However, from May 2002 through November 2003, several continuances were requested for various reasons, mostly unopposed; and the final hearing was rescheduled several times, the last time for February 4-6, 2004, at the St. Johns County Service Center in the northwest part of the County, near Jacksonville, Florida (since no location in or closer to St.

Augustine could be secured). During this time of scheduling and rescheduling the final hearing, extensive discovery was conducted, and several prehearing motions were filed and ruled on.

An Amended Prehearing Stipulation was filed on January 26, 2004. On January 30, 2004, the District's Third Motion for Official Recognition (of its Applicant's Handbook, Management

and Storage of Surface Waters, November 11, 2003, and its Applicant's Handbook, Regulation of Stormwater Management Systems, April 10, 2002, which will be abbreviated ERP-A.H. and SW-A.H., respectively) was granted.

The final hearing could not be completed in the three days scheduled and had to be continued to February 10 and again to February 18, 2004.

During the final hearing, the Ginns called the following expert witnesses: Curt Wimpée, P.E., Project Engineer;

Jeff Jackson, P.E., Geotechnical Engineer (modeling);

Steve Weaver, P.E., Geotechnical Engineer (soil investigations); Jeff Foster, P.G., geologist; William Brown, biologist and environmental permitting consultant; Don Palmer of U.S. Fish and Wildlife Service; and Tony Steffer, eagle expert from Raptor Management Consultants, Inc. In addition, the applicant,

Mr. Jay Ginn, testified as a fact witness. Applicants' Exhibits (App. Ex.) 5A, 5B, 6A, 6B, 7-8, 10-15, 15A, 16, 19, 21-29, 30C,

30F, 30G, 30K, 32, 33, and 351 were admitted in evidence. The District called the following witnesses: Louis J.

Donnangelo, a fact witness; Michael A. Register, an expert in water resource engineering, surface water and stormwater management systems, and environmental resource permitting and regulation; Thomas Bartol, an expert in environmental site investigation and remediation; and Christine L. Wentzel, an

expert in wetlands and wildlife ecology, mitigation planning, and wetlands delineation. District Exhibits (Dist. Ex.) 1-3, 6- 7, and 10 were admitted in evidence.

Petitioners called the following witnesses: Lynda White, coordinator of Audubon’s Eagle Watch; Lucy Seeds, a volunteer with Eagle Watch; Stephen Boyes, hydrogeologist; Doug Tyus, Florida Fish and Wildlife Conservation Commission;

Robert Bullard, P.E., engineer; Marilyn McMulkin; Albert McMulkin; Gerald Mills; Cynthia Rogers, St. Johns County Health Department; Robert Burks, ecologist; and David Miracle, P.E., Director of the District’s Jacksonville Service Center.

Petitioners' Exhibits (Pet. Ex.) 1, 2, 4, 5, 17-20, and 27 were admitted in evidence.

After presentation of evidence, the Ginns requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs). The Transcript (nine volumes) was filed on March 8, 2004, and the parties' timely-filed PROs have

been considered.

FINDINGS OF FACT

1. The Parties and Proposed Project

   
   

   1. Respondent, the District, is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to

      administer and enforce the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.)

   2. Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest.

   3. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7.

   4. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This

      clearing and excavation was accomplished in the 1980’s for a project that was never completed.

   5. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility.

   6. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the

      central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1.

   7. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south.

   8. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood

      site and continues to flow south through ditches and culverts ultimately to the San Sebastian River.

   9. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project.

   10. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1.

   11. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property.

   12. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on

       Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north.

   13. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass.

   14. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds.

   15. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1.

2. Project Description

   
   

   1. As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels

      north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development).

   2. The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from

      DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1.

   3. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1.

   4. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River.

   5. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented.

   6. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30

      days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site.

3. Wetland Impacts

   
   

   1. Onsite Wetlands

      
      

      1. Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it.

      2. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions

         provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians.

         The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would

         be conducive to use by woodstorks, birds and small mammals do not forage there.

      3. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch.

      4. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value.

      5. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland

         4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland).

      6. A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it.

      7. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent.

      8. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland

         1. would not provide a significant food source for wading birds such as woodstorks.

      9. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf.

      10. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland

          1. and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low

          quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value.

      11. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots.

   2. Offsite Wetlands

   
   

   1. The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands.

   2. The seasonal high water (SHW) table in the area of DA-

      
      

      1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands.

   3. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on

      groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater.

   4. The seasonal high water table in the area of DA-2 is

      
      

      28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands.

   5. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet.

   6. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of

      0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall.

   7. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected.

4. Reduction and Elimination of Impacts

   
   

   1. The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1.

      The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to

      $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance.

   2. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First,

      Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be

      possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what

      Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal.

   3. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line.

   4. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed

      mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance.

   5. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6.

   6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and

      the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value.

   7. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a.

5. Secondary Impacts

   
   

   1. The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats.

   2. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted.

   3. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality.

   4. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields.

   5. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14).

   6. Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP.

6. Proposed Mitigation

   
   

   1. The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have

      proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4.

   2. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant

      72 trees, and monitor annually for 5 years to document success.

      
      

      Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start.

   3. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit.

   4. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas.

   5. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas.

   6. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP-

      A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated

      activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case.

      See Finding 44, supra.

      
      

   7. The cost of the proposed mitigation will be approximately $15,000.

7. Operation and Maintenance

   
   

   1. A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules.

8. Water Quantity

1. To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place.

2. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition

   included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions.

3. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream.

4. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the

   site using today’s conditions as pre-project conditions.

   
   

5. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street.

6. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square

   miles or more. The project is impounding water only for temporary storage purposes.

7. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer.

   1. Tailwater Elevations

      
      

8. First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was

   approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct.

9. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation.

   1. Watershed Criticism

      
      

10. The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem."

11. Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in

    size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site.

12. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County.

13. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1.

14. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post-

    development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite.

15. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive.

    1. Time of Concentration

       
       

16. Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post-

    development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis.

    1. Groundwater Infiltration in DA-2

    
    

17. One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of

    200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance.

18. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day

    residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time.

    1. Water Quality Criteria

       
       

       1. Presumptive Water Quality

          
          

19. The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of

    31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1.

20. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site,

    hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6,

    #10).

    
    

21. ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site.

22. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness.

    Those issues already have been addressed. See Findings 77-78, supra.

    1. Groundwater Contamination

    
    

23. Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1.

24. St. Johns County operated a landfill from the

    
    

    mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water.

25. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if

    Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond.

26. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site.

27. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level.

28. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards.

29. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site.

30. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations.

31. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located.

    Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards.

32. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See

    § 403.852(12) and (13), Fla. Stat.

    
    

33. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing.

34. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63

    semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus.

35. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards.

36. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management

    system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted.

    J. Fish and Wildlife

    
    

37. Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed.

38. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP.

39. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect

    the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented,

    Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP.

40. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle

    nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site.

41. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his

    29 years of experience with the USFWS in bald eagle and human interactions.

42. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project.

43. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time.

44. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along

    those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines.

45. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related

    less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle

    monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain

    Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively.

    K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k)

    
    

46. 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project.

47. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project.

48. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging.

49. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000

    so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.)

50. 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria.

    1. Public Interest Test in 40C-4.302

       
       

51. The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest.

52. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties.

53. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and

    wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species.

54. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See

    Findings 61-67, supra.

    
    

55. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site.

    Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain.

56. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts.

57. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources.

58. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project.

59. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest.

    1. Other 40C-4.302 Criteria

       
       

60. The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact.

61. The project is not located in or near Class II waters.

62. The project does not contain seawalls and is not located in an estuary or lagoon.

63. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District.

64. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.

    CONCLUSIONS OF LAW

    
    

    1. Burdens of Proof and Persuasion

       
       

65. A DOAH hearing held pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003), is not an administrative review of prior agency final action. This administrative hearing is a de novo proceeding designed to formulate final agency action, and the parties are allowed to present additional evidence on relevant matters not previously included in the application or in the notice of intent to issue or deny the permit. Hamilton County Board of County Commissioners v. State,

    Dept. of Envir. Reg., et al., 587 So. 2d 1378, 1387-88 (Fla. 1st DCA 1991); Dept. of Transportation v. J.W.C., Co., Inc., et al., 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981);

    § 120.57(1)(k), Fla. Stat. The issuance of a permit must be based solely on compliance with applicable permit criteria. Council of the Lower Keys v. Toppino, et al., 429 So. 2d 67 (Fla. 3d DCA 1983).

66. The burden of proof in the proceeding is on the party asserting the affirmative in the proceeding, here the Ginns. See J.W.C., supra at 787. If a regulatory agency gives notice of intent to grant a permit application, the applicant has the initial burden of going forward with the presentation of a prima

    facie case of the applicant's entitlement to a permit. In the context of this proceeding, the Ginns had the initial burden of

    showing that they provided reasonable assurance that their proposed project is consistent with the applicable statutes and rules.

67. Once the Ginns made their prima facie case that the proposed permit should be issued, Petitioners were required to rebut that prima facie case and support the allegations of their petitions challenging the proposed permit. Id. at 789. Unless Petitioners present "contrary evidence of equivalent equality" to the evidence presented by the Ginns and the District, the permit must be approved. Id. at 789-790. See also Ward v.

    Okaloosa County, 11 F.A.L.R. 217, 236 (DER June 29, 1989).

    
    

68. Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. Chipola Basin Protective Group Inc. v. Dept. of

    Environmental Reg., 11 F.A.L.R. 467 (DER Dec. 29, 1988).

    
    

69. The standard for an applicant's burden of proof is one of reasonable assurances, not absolute guarantees, that the applicable conditions for the issuance of a permit have been satisfied. ManaSota-88 Inc. v. Agrico Chemicals Co. and Dept. of Environmental Reg., 12 F.A.L.R. 1319, 1325 (DER Feb. 19, 1990). "Reasonable assurance" contemplates "a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644,

    648 (Fla. 3d DCA 1992). See also Hamilton County Board of County Commissioners, supra.

70. To meet their respective burdens of proof, the parties to this administrative proceeding must present a preponderance of competent and substantial evidence. See §§ 120.57(1)(j) and 120.57(1)(l), Fla. Stat.; Gould v. Division of

    Land Sales, 477 So. 2d 612 (Fla. 1st DCA 1985). 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). "Competent" evidence must be relevant, material, and otherwise fit for the purpose for which it is offered. Gainesville Bonded Warehouse v. Carter, 123 So. 2d 336 (Fla. 1960); Duval Utility Co. v. FPSC, 380 So. 2d 1028 (Fla.

    1980). "Substantial" evidence must be sufficient to allow a reasonable mind to accept the evidence 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).

    1. ERP Criteria Applicable to the Proposed Project

    
    

71. The District’s requirements applicable to the Ginns' ERP application are in Florida Administrative Code Rules 40C-

    4.301 and 40C-4.302, which are further explained in ERP-A.H. and SW-A.H.

    (i) 40C-4.301(1)(a), (b), and (c)

    
    

72. The Ginns have provided reasonable assurance that the project meets the requirements contained in Florida Administrative Code Rule 40C-4.301(1)(a), (b), and (c) because the project complies with the applicable presumptive criteria in ERP-A.H, 10.2.1, which provides the following:

    It is presumed that a system meets the standards listed in paragraphs 9.1.1.(a) through (c) [which are identical to 40C- 4.301(1)(a) through (c)] if the system meets the following criteria:

    
    

    1. The post-development peak rate of discharge must not exceed the pre- development peak rate of discharge for the storm event as prescribed in section 10.3.

       
       

    2. The post-development volume of direct runoff must not exceed the pre-development volume of direct runoff for systems as prescribed in subsections 10.4.2 and 10.4.3.

       
       

    3. Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other watercourses must not be altered so as to adversely impact the offsite storage and conveyance capabilities of the water resources (see section 10.5).

       
       

    4. Flows of adjacent streams, impoundments or other watercourses must not be decreased so as to cause adverse impacts (see section 10.6).

       
       

73. Because the post-development peak rate of discharge will not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event, the requirements of ERP-A.H.

    10.2.1(a) have been met. ERP-A.H. 10.2.1(b) does not apply to this project because the system will not be discharging to a landlocked lake and is not located in an area for which separate basin criteria have been established. See ERP-A.H. 10.4.2 and

    10.4.3. ERP-A.H. 10.2.1(c) does not apply to this project because the project is not located downstream of the point on a stream or watercourse where the drainage area is five square miles. See ERP-A.H. 10.5.3(a). ERP-A.H. 10.2.1(d) does not apply to this project because the system will not impound water for a purpose other than for temporary detention storage. See

    ERP-A.H. 10.6.2(a)1. In addition to meeting the presumption in ERP-A.H. 10.2.1, the Ginns further demonstrated compliance with 40C-4.301(1)(a), (b), and (c) by showing that the project will not cause an increase in the stage or duration of downstream flooding.

    (ii) 40C-4.301(1)(d)

    
    

74. Florida Administrative Code Rule 40C-4.301(1)(d) and ERP-A.H. 9.1.1(d) and 12.1.1(a) require that applicants provide reasonable assurances that the project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.

75. The Ginns propose to temporarily or permanently impact Wetlands 1, 2, 3, 4, 6, and 7. These impacts are initially considered adverse. ERP-A.H. 12.2.1.1 provides that

    the Ginns must have implemented practicable design modifications to reduce or eliminate these adverse impacts. The Ginns demonstrated that practicable design modifications were implemented for impacts to Wetland 1 and 4, as required.

76. Under the District's reasonable interpretations of its rules, the Ginns were not required to implement practicable design modifications to eliminate or reduce impacts to Wetlands 2, 3, 6, and 7. See Findings 44-46, supra.

77. In compliance with ERP-A.H. 12.2.2.4, the evidence showed that DA-1 and DA-2 will not adversely affect the nearby wetlands, especially considering the permit conditions proposed by the District. (Dist. Ex. 10). See Findings 33-39, supra.

78. As found, under the District's reasonable interpretations of its own rules, the Ginns do not have to comply with mitigation provisions in ERP-A.H. 12.3 through

    12.3.8 as to Wetlands 2 and 6 because those wetlands meet the criteria of ERP-A.H. 12.2.2.1. See Finding 58, supra.

79. The evidence showed that the mitigation more than replaces the functions provided by the wetlands and surface water to be adversely affected by the project. Therefore, the requirements of Florida Administrative Code Rule 40C-4.301(1)(d) have been met.

    (iii) 40C-4.301(1)(e)

    
    

80. Under Florida Administrative Code Rule 40C- 42.023(2)(a), it is presumed that the project will not violate water quality standards if the stormwater management system complies with the applicable criteria in Florida Administrative Code Rules 40C-42.024, 40C-42.025, 40C-42.026, and 40C-42.0265. The greater weight of the evidence shows that the stormwater management system complies with the applicable criteria, which are in Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4).

81. In addition, the Ginns have provided reasonable assurance that this requirement is met through the stormwater system design, the erosion and turbidity control measures that will be undertaken, the maintenance of construction equipment, and the dewatering plan that will be submitted for construction See ERP-A.H. 12.2.4.

82. The absence of violations of water quality standards in the groundwater beneath the project site provides reasonable assurance that the surface water management system will not adversely affect the quality of receiving waters such that state water quality standards will be violated.

83. For those reasons, the Ginns have provided reasonable assurance that the project will not adversely affect the quality

    of receiving waters and that state water quality standards will be violated.

    (iv) 40C-4.301(1)(f)

    
    

84. The first consideration for secondary impacts is that the applicant must provide reasonable assurances that the secondary impacts from construction, alteration, and intended or reasonably intended uses of a proposed system will not cause violations of water quality standards or adverse impacts to the functions of wetlands or surface waters. ERP-A.H. 12.2.7 (a) also provides in pertinent part that:

    Secondary impacts to the habitat functions of wetlands associated with adverse upland activities will not be considered adverse if buffers with a minimum width of 15' and an average width of 25’ are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat. The mere fact that a species is listed does not imply that all of its feeding habitat is critically important. Where an applicant elects not to utilize buffers of the above dimensions, buffers of different dimensions, measures other than buffers, or information may be provided to provide the required reasonable assurance. (Emphasis added.)

    
    

85. The evidence showed that the Ginns have proposed an adequate buffer area for Wetland 1 and Wetland 5. The conservation easement along with the permit conditions ensure that an adequate buffer will remain between the wetlands and the

    developed portion of the property to address secondary impacts. In addition, the Ginns propose to implement additional measures and the BEMP. The secondary impacts of the project will not cause violations of water quality standards or adverse impacts to the functions of wetlands or surface waters.

86. Under the second consideration for secondary impacts, the Ginns must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely impact the ecological value of uplands to aquatic or wetland dependent listed animal species for enabling existing nesting or denning by these species. Consideration for areas needed for foraging or wildlife corridors will not be required, except for limited upland areas necessary for ingress and egress to a nest or den site from the wetland or other surface water. ERP-A.H. Section 12.2.7(b). The evidence showed that none of the listed aquatic or wetland dependent species currently use uplands on the project site for nesting or denning. The eagle's nest is in the wetland portion of Wetland 1, and it was addressed under ERP- A.H. 12.2.7(a).

87. Under the third consideration for secondary impacts, the project will not cause impacts to significant historical and archaeological resources. ERP-A.H. 12.2.7(c).

88. Under the fourth consideration for secondary impacts, there will be no additional phases for the project. ERP-A.H. 12.2.7(d).

    1. Other Criteria in 40C-4.301

       
       

89. Because no minimum surface or groundwater levels or surface water flows in the project area have been established in Florida Administrative Code Chapter 40C-8, the project meets Florida Administrative Code Rule 40C-4.301(1)(g).

90. Because there are no works of the District in the project area, the project satisfies Florida Administrative Code Rule 40C-4.301(1)(h).

91. The Ginns have provided reasonable assurance that the project satisfies Florida Administrative Code Rule

    40C-4.301(1)(i) because the surface water management system is typical for a residential development, is based on generally accepted engineering practices, does not include atypical components, and is easily maintained.

92. The Ginns have provided reasonable assurance that the project satisfies Florida Administrative Code Rule 40C- 4.301(1)(j) because the project complies with the following presumptive criteria in ERP-A.H.10.2.2(a) through (d):

    Compliance with the following criteria shall constitute reasonable assurance that a proposed system meets the requirements of paragraphs 9.1.1 (d), (e), (f), (j) [which are identical to the requirements in 40C-

    4.301(1)(j)], and (k) and 10.1.1 (a) through (d):

    
    

    1. State water quality standards must not be violated, as set forth in subsections

       10.7 through 10.7.2 and 12.2.4 through 12.2.4.5.

       
       

    2. The applicant must establish financial responsibility and provide for an operation and maintenance entity, as set forth in subsections 10.8 through 10.8.3.

       
       

    3. The environmental criteria set forth in subsections 12.2 through 12.3.8, including mitigation and mitigation banking provisions, must be met.

       
       

    4. Applicable basin criteria set forth in section 11 and chapter 40C-41, F.A.C., must be met.

       
       

93. In addition to meeting this presumption, the Ginns have provided reasonable assurance that the project satisfies Florida Administrative Code Rule 40C-4.301(1)(j) by demonstrating that the Ginns own the project site free of mortgages and liens and that the stormwater management system will be operated and maintained by a homeowners association with sufficient powers to provide for the long-term operation and maintenance of the system. See Fla. Admin. Code R. 40C-42.027(3) and (4).

94. Because the project is not located in a special basin or geographic area as established in Florida Administrative Code Rules Chapter 40C-41, the project meets Florida Administrative Code Rule 40C-4.301(1)(k).

95. Petitioners did not raise 40C-4.301(2) as an issue of fact or law to be determined. No evidence was presented to demonstrate that the existing ambient water quality does not meet water quality standards. Therefore, the Ginns are not required to comply with ERP-A.H. 12.2.4.5.

    1. 40C-4.302(1)(a) and Applicant’s Handbook

       
       

96. The Ginns have provided reasonable assurance that the parts of the surface water management system located in, on, or over wetlands are not contrary to the public interest. See also ERP-A.H. 12.2.3. The evidence established that all of the public interest test factors to be balanced were determined to be at least neutral. The evidence showed that the project will not adversely affect public health, safety, or welfare or property of others; the conservation of fish and wildlife or their habitats; the flow of water; fishing or recreational values or marine productivity; and historical and archeological resources. The project will not cause harmful erosion. The project, including the mitigation, is designed to maintain the current condition and relative value of functions performed by wetlands and surface waters.

    1. Other Criteria in 40C-4.302

    
    

97. Because the mitigation offered for the project will be onsite and within the same drainage basin as the project and will offset the project's adverse impacts, the Ginns have

    provided reasonable assurance that Florida Administrative Code Rule 40C-4.302(1)(b) has been satisfied.

98. Because no part of the project is near or in shellfish waters, ERP-A.H. 12.2.5 and Florida Administrative Code Rule 40C-4.302(1)(c) are inapplicable.

99. Since the project does not include any vertical seawalls in estuaries or lagoons, ERP-A.H. 12.2.6 and Florida Administrative Code Rule 40C-4.302(1)(d) are not applicable to this project.

100. Under Florida Administrative Code Rule 40C-4.302(2), the District shall consider the applicant's violation of rules that the District had the responsibility to enforce in determining whether an applicant has provided reasonable assurances. The dredge and fill violation that occurred on the project site in 1989 was not the District's responsibility to enforce. Even so, the evidence was that the matter was resolved in a timely manner through a consent order, and there was no evidence that the Ginns subsequently violated rules falling under Florida Administrative Code Rule 40C-4.302(2).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10.

DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida.

S

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 16th day of April, 2004.

ENDNOTE

1/ Applicants' Exhibit 35, consisting of excerpts from the transcript of the deposition of one of Petitioners' witnesses,

Mr. Bullard, was offered by the Ginns during rebuttal. The parties were given 10 days to file memoranda regarding its admissibility.

After considering the memoranda, it is ruled that the deposition should be received in evidence for impeachment purposes as, arguably, prior inconsistent statements.

COPIES FURNISHED:

Deborah J. Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082-3625

Cindy L. Bartin, Esquire Post Office Box 861118

St. Augustine, Florida 32086-1118

Vance W. Kidder, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177-2529

Kirby Green, Executive Director

St. Johns River Water Management District Post Office Box 1429

Palatka, Florida 32178-1429

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.

Docket for Case No: 02-001496

Orders for Case No: 02-001496