Ub 04 St. Johns River Water Management District Kirby B. Green Ill, Executive Director « David W. Fisk, Assistant Executive Director 4049 Reid Street » P.O. Box 1429 » Palatka, FL 32178-1429 » (386) 329-4500 On the Internet at www.sjrnwmd.com. May 12, 2004 Hon. J. Lawrence Johnston Division of Administrative Hearings Ad The DeSoto Building 1230 Apalachee Parkway . Tallahassee, FL_ 32399-3060 TiJ- (lib RE: Marilyn McMulkin and Diane Mills v. SJRWMD and Jay and Linda Ginn (Ravenswood Subdivision) SJRWMD F.O.R. Nos. 2002-24 and 2002-25 Permit No. 40-109-81153-1 DOAH Case Nos. 02-1496 and 02-1497 Dear Judge Johnston: In accordance with subsection 120.57(1)(m), Florida Statutes, enclosed please find a copy of the Final Order approved by the Governing Board of the St. Johns River Water Management District on May 11, 2004, wherein the Governing Board issued the environmental resource permit. Also enclosed for your convenience is an electronic copy of the District's Final Order. The electronic version of the Final Order was created in MS Word 2000 format. Sincerely, M en Jones As: eneral Counse Office of General Counsel ME):kic Enclosures GOVERNING BOARD Ometrias D. Long, CHAIRMAN David G. Graham, viCE CHAIRMAN R. Clay Albright, SECRETARY Duane Ottenstroer, TREASURER APOPKA JACKSONVILLE OCALA JACKSONVILLE W. Michael Branch John G. Sowinski William Kerr AnnT. Moore Susan N. Hughes FERNANDINA BEACH ORLANDO MELBOURNE BEACH BUNNELL JACKSONVILLE DR acod-//4 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Sy MARILYN McMULKIN, Petitioner, V. Case No. 02-1496 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT and JAY and LINDA GINN, Respondents. DIANE MILLS, Petitioner. Case No. 02-1497 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT and JAY and LINDA GINN, Respondents. FINAL ORDER Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, the Honorable J. Lawrence Johnston, held a formal administrative hearing in the above-styled case on February 4-6, 10, 18, 2004, in the St. Johns County Service Center in the northwest part of the county near Jacksonville, Florida. A. APPEARANCES For Petitioners Debra Andrews, Esquire Diane Mills and 11.N. Roscoe Blvd. Marilyn McMulkin Ponte Vedra Beach, FL 32082 For Respondents Jay Cindy Bartin, Esquire And Linda Ginn P. O. Box 861118 St. Augustine, FL 32086 For Respondent St. Johns River Tara Boonstra, Esquire Water Management District: Vance Kidder, Esquire 4049 Reid Street Palatka, FL 32177 On April 16, 2004, the Honorable J. Lawrence Johnston (“Administrative Law Judge” or “ALJ”) submitted to the St. Johns Water Management District and all other parties to this proceeding a Recommended Order, a copy of which is attached hereto as Exhibit “A”. Petitioners, Marilyn McMulkin and Diane Mills (“Petitioners”), timely filed Joint Exceptions to the Recommended Order. Respondent St. Johns River Water Management District (“District”) timely filed Exceptions to the Recommended Order. Respondent St. Johns River Water Management District and Respondents Jay and Linda Ginn timely filed Responses to Exceptions. This matter then came before the Governing Board on May 11, 2004, for final agency action. B. STATEMENT OF THE ISSUES The issues to be resolved in this proceeding concern whether environmental resource permit (ERP) number 40-109-81153-1 should be issued to allow construction and operation of a surface water management system (project) for a residential development project known as “Ravenswood” in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code. C.__ STANDARD OF REVIEW The rules regarding an agency’s consideration of exceptions to a Recommended Order are well established. The Governing Board is prescribed by section 120.57(1)(I), Florida Statutes, Fla. Stat. (2003), in acting upon a Recommended Order. The ALJ, not the Governing Board, is the fact finder. Goss v. Dist. Sch. Bd. of St. Johns County, 601 So.2d 1232 (Fla. 5'" DCA 1992); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277 (Fla. 18* DCA 1997). A finding of fact may not be rejected or modified unless the Governing Board first determines from a review of the entire record that the findings of fact are not based upon competent substantial evidence or that the proceedings on which the findings of fact were based did not comply with essential requirements of law. § 120.57(1)(I), Fla. Stat, Goss, supra. “Competent substantial evidence” is such evidence as is sufficiently relevant and material that a reasonable mind would accept as adequate to support the conclusion reached. Perdue v. TJ Palm Associates, Ltd., 755 So.2d 660 (Fla. 4°" DCA June 16, 1999). | If a finding is supported by any competent substantial evidence from which the finding could be reasonably inferred, the finding cannot be disturbed. Freeze v. Dep't of Business Regulation, 556 So.2d 1204 (Fla. 5" DCA 1990); Berry v. Dep't of Envtl. Regulation, 530 So.2d 1019 (Fla. 4" DCA 1998). The Governing Board may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown v. Criminal Justice Standards & Training Comm'n., 667 S0.2d 977 (Fla. 4" DCA 1996). The issue is not whether the record contains evidence contrary to the findings of fact in the Recommended Order, but whether the finding is supported by any competent substantial evidence. Florida Sugar Cane League v. State Siting Bd., 580 So.2d 846 (Fla. 1 DCA 1991). The term “competent substantial evidence” relates not to the quality, character, convincing power, probative value or weight of the evidence, but refers to the existence of some quantity of evidence as to each essential element and as to the legality and admissibility of that evidence. Scholastic Book Fairs v. Unemployment Appeals Commission, 671 So.2d 287, 289 (Fla. 5th DCA 1996). The Governing Board need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record. § 120.57(1)(k), Fla. Stat. The Governing Board in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction, provided the reasons for such rejection or modification is stated with particularity and the Governing Board finds that such rejection or modification is as or more reasonable than the ALJ's conclusion or interpretation. § 120.57(1)(I), Fla. Stat. Furthermore, the Governing Board’s authority to modify a Recommended Order is not dependent on the filing of exceptions. Westchester General Hospital v. Dept. Human Res. Servs, 419 So.2d 705 (Fla. 1st DCA 1982). In interpreting the "substantive jurisdiction" amendment as it first appeared in the 1996 changes to the Administrative Procedures Act, courts have continued to interpret the standard of review as requiring deference to an agency in interpreting its own statutes and rules. See, e.g., State Contracting and Engineering Corporation v. Department of Transportation, 709 So.2d 607, 608 (Fla. 1st DCA 1998). D. RULINGS ON EXCEPTIONS Petitioners jointly filed 53 exceptions to the ALJ's findings of fact and conclusions of law. The District filed 12 exceptions to the ALJ’s findings of fact and conclusions of law. The parties’ exceptions to the Recommended Order have been reviewed and are addressed below. Hereinafter, references to testimony will be made by identifying the witness by surname, followed by the volume and transcript page number (e.g., Wentzel Vol. IV: 609). References to exhibits received by the ALJ will be designated “Petitioners” for Petitioners Marilyn McMulkin and Diane Mills; “District” for Respondent, St. Johns River Water Management District; and “Applicants” for Respondents Jay and Linda Ginn, followed by the exhibit number, then page number, if appropriate (e.g., Applicants 14: 2). Other references to the transcript will be indicated with a “T” followed by the page number (e.g., T. Vol. 1: 84). Reference to the Prehearing Stipulation will be designated by “Prehrg. Stip.” followed by the paragraph number (e.g., Prehrg. Stip.: ]10). References to the Recommended Order will be designated by “R.O.” followed by the page number (e.g., R.O.: 13). E. RULINGS ON EXCEPTIONS Petitioners’ Exception No. 1. Petitioners take exception to finding of fact no. 21 stating the ALJ relied on the Applicants’ intent to retain dewatering from construction onsite and on a dewatering plan to be submitted to the District. The exception characterizes the District's dewatering plan requirement as the Applicants’ failure to provide reasonable assurances that the project meets applicable criteria and characterizes the Applicants’ intentions for its dewatering plan as not being competent substantial evidence. In the remainder of the exception, Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. First, from reading finding of fact number 21, it is not clear what Petitioners mean by taking exception to the ALu’s reliance on some fact in arriving at a particular finding of fact. Finding of fact no. 21 simply states that the Districts Technical Staff Report imposed a permit condition requiring a dewatering plan and that the Applicants intend to retain dewatering onsite. This finding of fact is supported by competent substantial evidence. (Wimpee Vol. |: 82, 89; District Ex. 1, p.10, #10). See also, § 120.57(1)(I), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club v. Orlando Util. Comm'n, 436 So.2d 383, 389 (Fla. 5" DCA 1983). Second, failure to provide all of the details of a proposed project at hearing is not fatal to permit issuance provided that there is competent substantial evidence explaining how the project could be designed to meet legal requirements and the permit is appropriately conditioned to insure compliance. Kralik v. Ponce Marina, Inc. and Dep’t of Envil. Regulation., 11 F.A.L.R. 669, 672 (Dep't of Envtl. Regulation 19889), affd 545 S0.2d 882 (Fla. 5" DCA 1989) (agency concluded that reasonable assurance is given provided that the applicant submitted design and operation specifications prior to construction with notice of submittal to petitioners); Manasota, 88, Inc. v. Agrico Chemical Co., 12 F.A.L.R. 1319 (Dep’t of Envtl. Regulation 1990), affd 576 So.2d 781, Fla. 2" DCA 1991) (hearing officer's summary of the details in the recommended order that are necessary to provide an adequate plan deemed to be sufficient regardless that the specific design was not provided at hearing); Hamilton County Bd. of County Commissioners v. Dep't of Envitl, Regulation, 12 F.A.L.R. 3774 (Dep't of Envtl. Regulation 1990), affid 587 So.2d 1388 (Fla. 1% DCA 1991) (absence of specific engineering drawings and other design details is not fatal to a showing of reasonable assurance if other evidence which describes the nature and performance of the design is presented to show reasonable assurance). The provision of a dewatering plan in this case relates to providing reasonable assurance that the project will not result in short term water quality impacts. See §§ 12.2.4.1, ERP-A.H. There is competent substantial evidence in the record to show that the Applicants will provide erosion and sedimentation controls to prevent water quality impacts during construction. (Applicants Ex. 5A, sheet 5 of 17) Furthermore, pursuant to Florida Administrative Code Rule 40C-4.381(2), the Governing Board “shall impose on any permit granted under this chapter [40C-4] and chapter 40C-40, F.A.C., such reasonable project-specific conditions as are necessary to assure that the permitted system will not be inconsistent with the overall objectives of the District or be harmful to the water resources of the District as set forth in District rules.” [Emphasis added.} The condition to which Petitioners object is an example of a project-specific condition that District staff believe should be placed on the permit for this project, and this condition is supported by competent substantial evidence. (Wimpee Vol. 1:82; District Ex. 1, p.10. #10). In the Technical Staff Report, District staff recommended a number of permit conditions that require the Applicant to perform certain activities in the future. See, e.g., District Ex. 1, p. 9-10, #4, 5, 7, 8, 12, 13, 14 as well as additional permit conditions in District Ex. 2 (as indicated on District Ex. 1, p.8). Petitioners have taken exception to only two permit conditions (this exception and Petitioners’ exception no. 6). For the foregoing reasons, Petitioners’ exception no. 1 is rejected. Petitioners’ Exception No. 2 Petitioners take exception to last sentence of finding of fact no. 23 wherein the ALJ finds that “birds and small mammals do not forage” in Wetland 2. The last sentence of the paragraph is the sentence that expresses a conclusion reasonably inferred from the preceding findings of the paragraph. The Administrative Law Judge may reasonably infer from the evidence a factual finding. Freeze v. Dep’t of Bus. Regulation, 556 So.2d 1204, 1206 (Fla. 5" DCA 1990). The Petitioners do not take issue with any other findings in paragraph 23. The finding may reasonably be inferred from the evidence discussed below and it is certainly in keeping with the rest of the findings in the paragraph that the Petitioners have conceded are based on competent substantial evidence. The entirety of paragraph 23 prior to that portion of the last sentence finds that the value of the wetland is minimal or low; its vegetation is sparse providing little refuge and nesting; its hydroperiod does not allow for breeding of most amphibians; and the vegetation and hydroperiod do not foster lower trophic animals. Competent substantial evidence exists in the record to support these findings. (Brown Vol. Il: 277-78; Wentzel Vol. IV; 622-23). Therefore, there is evidence in the record from which the ALJ could reasonably infer that birds and small animals do not forage in Wetland 2. Accordingly, Petitioners’ exception no. 2 is rejected. Petitioners’ Exception No. 3. Petitioners take exception to a portion of finding of fact no. 28 wherein it states that “[t]he gopher frog is not a listed species...” As addressed below in the ruling on St. Johns River Water Management District exception number 8, this statement actually involves a legal conclusion because listed species are determined by law. Rule 40C- 4.021(20), Fla. Admin. Code; ERP-A.H. §§ 2.0 (q), (cc), (bbb). Accordingly, as a matter of law, the gopher frog is listed as a species of special concern. Rule 68A- 27.005(1)(b)10, Fla. Admin. Code. Therefore, the exception is granted. This legal conclusion involves the substantive regulatory jurisdiction of the St. Johns River Water Management District and is more reasonable than the erroneous legal statement contained in the finding. The granting of this exception does not alter any legal conclusions since species of special concern are not subject to ERP Applicant's Handbook 12.2.2.1 and gopher frogs are not aquatic or wetland dependent species, as identified in Applicant's Handbook Table 12.2.7-1, for purposes of ERP Applicant's Handbook 12.2.7. Accordingly, Petitioners’ exception no. 3 is granted and the last sentence of finding of fact no. 28 is modified as follows: The gopher frog is listed by the State of Florida as a species of special concern Fhe-gopher frog_is-net-_asted_spesies; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Petitioners’ Exception No. 4 Petitioners take exception to finding of fact no. 31 to the extent that the ALJ finds that Wetland 6 is of low quality and not more than minimal value to fish and wildlife. Petitioners contend that because, in paragraphs 28 and 29, findings are made that the gopher frog and woodstork could use Wetland 6, the ALJ cannot make the finding in paragraph 31 that Wetland 6 is of low and not more than minimal value to fish and wildlife. Petitioners further contend that such a finding is “illogical” and, therefore, an elimination and reduction analysis is required. First, pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception and does not include appropriate and specific citations to the record. Second, this finding is supported by competent substantial evidence. The gopher tortoise burrows, with which gopher frogs are associated, are nearest Wetland 1 and next closest to Wetland 2, not Wetland 6. (Burks Vol. IX: 1325-26). Gopher frogs are more associated with cypress and pines than this type of wetland area. (Wentzel Vol. IV: 642. With the limited number of gopher tortoise burrows on the project site, use of Wetland 6 by gopher frogs is not anticipated. (Wentzel Vol. IV: 642). In finding of fact 29, the ALJ found that Wetland 6 could be used by woodstorks, however, it would not be a significant food source for woodstorks. Furthermore, although woodstork use of wetlands is strongly influenced by the openness of tree canopy, it is the presence of prey that attracts them and non-isolated Wetland 1 is the most productive wetland (Burks Vol. IX: 1326; Wentzel Vol. IV: 617). Because this finding of fact is supported by competent substantial evidence, it may not be disturbed. See § 120.57(1)(I), Fla. Stat.; Freeze, supra; Berry, supra; Fla. Sugar Cane Leaque, supra. Accordingly, Petitioners’ exception no. 4 is rejected. Petitioners' Exception No. 5 Petitioners take exception to finding of fact no. 35. Specifically, Petitioners state that the “ALJ fails to address the influence of the ponds on the groundwater by having the control structures below the seasonal groundwater levels ...”_ In the remainder of the exception, Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. Pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception. Nevertheless, this finding of fact is supported by competent substantial evidence. (Register Vol. V: 799-802; Applicants Ex. 10E, App. B, Fig.1). See also, § 120.57(1)(I), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club, supra. The issue is not whether the record contains evidence contrary to the ALJ’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane League, supra. Furthermore, Petitioners’ exception is misleading for several reasons. First, contrary to Petitioners’ second sentence in their exception no. 5, finding of fact no. 35 specifically addresses the influence of pond DA-1 on the groundwater and specifically references the control elevation of the pond. (R.O. 16-17). Second, finding of fact no. 35 relates to pond DA-1, not pond DA-2. Pond DA-2 is the subject of finding of fact 36, to which Petitioners did not take exception. (R.O. 17). Third, most of Petitioners’ exception no. 5 is related to the upwelling issue, which the ALJ addressed in other portions of the recommended order, such as findings of fact numbers 77 and 78, to which Petitioners did not take exception. (R.O. 34-35). Petitioners additionally argue that because water level monitoring for wetlands on the project site is not being required, then reasonable assurance is lacking. Under subsection 12.2.2.4(c), ERP-A.H.: Whenever portions of a system could have the affect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. We find that based upon the reasonable assurance provided pursuant to subsection 12.2.2.4(a), ERP-A.H., and finding of fact numbers 35 and 36, no additional monitoring is required under subsection 12.2.2.4(c), ERP-A.H., in this instance. For the reasons set forth above, Petitioners' exception no. 5 is rejected. Petitioners’ Exception No. 6 Petitioners take exception to finding of fact no. 38 stating that the “ALJ found that it will be determined in the future whether the hardpan at DA-2 has the requisite permeability.” Petitioners mischaracterize the finding, which states, in part, the following: 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 iength 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. (R.O. 18). In the remainder of the exception, Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. Pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception. Nevertheless, this finding of fact is supported by competent substantial evidence. (Register Vol. V: 787-88, 824-25; Jackson Vol. |: 102-03; Applicants Ex. 10E, p.3-4; District Ex. 10). See also, § 120.57(1)(I), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club, supra. As noted above, the issue is not whether the record contains evidence contrary to the ALu’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane League, supra. To the extent that this exception objects to the permit condition, pursuant to Florida Administrative Code Rule 40C-4.381(2), the Governing Board “shall impose on any permit granted under this chapter [40C-4] and chapter 40C-40, F.A.C., such reasonable project-specific conditions as are necessary to assure that the permitted system will not be inconsistent with the overall objectives of the District or be harmful to the water resources of the District as set forth in District rules.” [Emphasis added.] The condition to which Petitioners object is an example of a project-specific condition that should be placed on the permit for this project to verify the data and soil information regarding the design of the cutoff wall, and this condition was supported by competent substantial evidence. (Register Vol. V: 787-88, 824; District Ex. 10). In the Technical Staff Report, District staff recommended a number of permit conditions that require the Applicant to perform certain activities in the future. See, e.g., District Ex. 1, p. 9-10, 13 #4, 5, 7, 8, 12, 13, 14 as well as additional permit conditions in District Ex.2 (as indicated on District Ex. 1, p.8). Petitioners have taken exception to two of those permit conditions (this exception and Petitioner's exception no. 1). Most of Petitioners’ exception no. 6 is related to the cutoff wall and liner, which the ALJ also addressed in findings of fact 36 and 37, to which Petitioners did not take exception. (R.O. 17-18). Furthermore, in their exception, Petitioners misunderstand the liner as an alternative to the cutoff wall. Finding of fact 38 states that “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.” (R.O. 18). Therefore, the use of the liner is not dependent on the presence of hardpan. (Register Vol. V: 788-89, 816, 837- 38; Jackson Vol. |: 98-99, 104-07; District Ex. 10). For the foregoing reasons, Petitioners’ exception no. 6 is rejected. Petitioners’ Exception No. 7 Petitioners take exception to finding of fact no. 39. Specifically, Petitioners take exception to the ALu’s finding that “the partial liner will negate the groundwater influence of DA-2” because the ALJ “failed to address the groundwater elevations and the low level of the control structure ...” Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. Pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception and does not include appropriate and specific citations to the record. Nevertheless, this finding of fact is supported by competent substantial evidence. (Register Vol. V: 788; Jackson 14 Vol. |: 98-99; Boyes Vol. VI: 968, 972, 978). See also, § 120.57(1)(), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club, supra. In addition, most of Petitioners’ exception no. 7 is related to the upwelling issue, which the ALJ addressed in other portions of the recommended order, such as findings of fact 77 and 78, to which Petitioners did not take exception. (R.O. 34-35). For the foregoing reasons, Petitioners’ exception no. 7 is rejected. Petitioners’ Exception No. 8 Petitioners take exception to recommended finding of fact number 40 wherein the ALJ makes certain findings regarding the reduction and elimination analysis for Wetland 1. Petitioners contend that the ALJ’s findings were based on hearsay as to cost, ignored the competent evidence of Petitioners and that the last sentence of the paragraph is merely a recitation of the criteria and that more is required. First, the exception asserts that the evidence regarding the cost of the lift stations should be rejected as hearsay. The Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ. See § 120.57(1)(I), Fla. Stat.; Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1® DCA 2001) (the department lacks substantive jurisdiction to overrule the judge’s evidentiary ruling regarding hearsay). Second, this finding of fact is supported by competent substantial evidence. (Wentzel Vol !V: 620-21; Brown Vol. Ill: 315-18, 388-90; District Ex. 1.) As noted above, the Governing Board may not reweigh evidence submitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise 15 interpret evidence anew. Goss, supra; Heifitz, supra; Brown, supra. The issue is not whether the record contains evidence contrary to the ALJ’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane Leaque, supra. Third, Petitioners assert that this finding should be rejected as being contrary to section 120.569(2)(m), Florida Statutes, because the finding is a “mere recitation of one single rule criteria.” Contrary to section 120.57(1)(k), Petitioners fail to identify the statute the finding allegedly duplicates. However, the finding tracks no statutory language. Even so, section 120.569(2)(m) is inapplicable to a finding that paraphrases rule language since the statute applies only to “statutory” language and not to rule language that implements a statute. Petitioners reference their exception no. 41 as a basis for this exception. Based on the foregoing and the grounds set forth in the ruling on Petitioners exception no. 41, Petitioners’ exception no. 8 is rejected. Petitioners’ Exception No. 9 Petitioners take exception to finding of fact no. 41 wherein the ALJ states that “it appears that his [Mills] 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.” Petitioners assert that this finding is not supported by competent substantial evidence. This finding of fact is supported by competent substantial evidence. This finding is based upon the distances for the proposed water/sewer route though Wetland 1, as compared to the distance for the alternative route along the south side of Ravenswood Drive and Mr. Mills’ testimony that “a gravity sewer will cost three times more than a | sewer line.” (Applicants Ex. 5A, sheet 4 of 17; Mills Vol. Vil: 1079). With the aforementioned information, the Administrative Law Judge quite reasonably determined that the Petitioners suggested route was approximately three times as long and the total cost of laying the pipeline would be approximately equal under either proposal. Fila. Chapter of Sierra Club, supra. Based on the foregoing, Petitioners’ exception no. 9 is rejected. Petitioners’ Exception No. 10 Petitioners take exception to finding of fact no. 42 wherein the ALJ found that although there was a possibility that an emergency repair of the water/sewer line may be necessary during the eagle nesting season, it is speculative. The finding that this evidence was speculative is a determination by the ALJ as to its weight. The Governing Board may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown, supra. The decision to believe one witness over another is left to the ALJ as a fact finder and cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra. Accordingly, Petitioners' exception no. 10 is rejected. 17 Petitioners' Exception 11 _ Petitioners take exception to recommended finding of fact number 44 wherein the ALJ concluded that the Applicants were not required to perform an elimination and reduction analysis pursuant to section 12.2.1.1, ERP-A.H., for Wetland 6. Petitioners contend that because the ALJ makes findings in paragraphs 28 and 29 regarding potential use of Wetland 6 by gopher frogs and woodstorks, the District’s rules require an elimination and reduction analysis. This finding, more in the nature of an ultimate finding of fact, necessarily involves an interpretation and application of the District's rules and is, therefore, a mixed question of law and fact. Whether a finding of fact should be treated as a conclusion of law instead of a finding of fact is not a basis for rejecting it, but rather determines the Governing Board's ability to modify it. See, Berger v. Dep't of Professional Regulation, 653 So.2d 479, 480 (Fla. 3d DCA 1985) (a finding which involves both a factual and legal conclusion cannot be rejected where there is competent substantial evidence to support the factual conclusion and where the legal conclusion necessarily follows). Section 12.2.2.1, ERP-A.H., provides: Compliance with subsections 12.2.2 - 12.2.3.7, 12.2.5 - 12.3.8 will not be required for regulated activities in isolated wetlands less than one half acre in size, unless: (a) the wetland is used by threatened or endangered species, (b) the wetland is located in an area of critical state concern designated pursuant to chapter 380, FLA. STAT., (c) the wetland is connected by standing or flowing surface water at seasonal high water level to one or more wetlands, and the combined wetland acreage so connected is greater than one half acre, or 18 (d) the District establishes that the wetland to be impacted is, or several such isolated wetlands to be impacted are cumulatively, of more than minimal value to fish and wildlife based on the factors in subsection 12.2.2.3. [emphasis added] In recommended finding of fact numbers 27, 29 and 58, the ALJ finds that Wetland 6: is isolated and less than one half acre in size; is not used by threatened or endangered species; is not located in an area of critical state concern; is not connected at seasonal high water level to other wetlands; and is not more than minimal value, singularly or cumulatively, to fish and wildlife. (Wentzel Vol. IV: 624-25, 640-41, District Ex. 1). Thus, we find there is competent substantial evidence in the record to support the factual underpinnings for the ALJ’s conclusion that no elimination and reduction analysis pursuant to section 12.2.1.1, ERP-A.H., is required for Wetland 6. Petitioners argue that an elimination and reduction analysis is required because gopher frogs and woodstorks could use the wetland. It is actual use by a threatened or endangered species that triggers such an analysis under section 12.2.2.1(a), ERP-A.H. Further, the gopher frog is listed as a species of special concern. Rule 68A- 27.005(1)(b)10, Fla. Admin. Code. Even if the gopher frog used Wetland 6, subsection 12.2.2.1(a), ERP-A.H., would not be triggered because the gopher frog is listed as a species of special concern rather than a threatened or endangered species. Petitioners also argue as they did in their Exception no. 4 that it is “illogical to conclude that Wetland 6 . . . of not more than minimal value to fish and wildlife. Based on the foregoing and the grounds set forth in our ruling on Petitioners exception no. 4, Petitioners’ exception no. 11 is rejected. 19 Petitioners’ Exception No. 12 Petitioners’ exception to finding of fact no. 46 merely contains a brief conclusory legal statement and fails to comply with section 120.57(1)(k), Fla. Stat., by identifying the legal basis for such statement. This exception is therefore rejected on that basis as well as the grounds set forth in our rulings on exceptions numbers 3 and 4. Petitioners’ Exception No. 13. Petitioners assert finding of fact no. 47 should be rejected as contrary to section 120.569(2)(m), Fla. Stat., because the finding merely tracks statutory language without a supporting statement of underlying facts of record. Contrary to section 120.57(1)(k), Petitioners fail to identify the statute the finding allegedly duplicates. However, the finding tracks no statutory language. Even so, the statute is inapplicable to a finding that paraphrases rule language since the statute applies only to “statutory” language and not to rule language that implements a statute. The exception is therefore rejected. Moreover, the finding is best characterized as a legal conclusion or ultimate fact that is otherwise supported by findings of fact 48-52. Accordingly, Petitioners’ exception no. 13 is rejected. Petitioners' Exception No. 14 Petitioners take exception to finding of fact no. 51 which merely states that a Bald Eagle Management Plan (BEMP) was submitted to avoid secondary impacts to the eagles’ nest in Wetland 1. Essentially, Petitioners argue that because the BEMP did not strictly comply with Habitat Management Guidelines for Bald Eagle in the Southeast 20 (Management Guidelines) and Bald Eagle Monitoring Guidelines (Monitoring Guidelines) the Applicants failed to provide reasonable assurance that secondary impacts to the eagle’s nest would not occur. The ALJ’s finding of fact no. 51 is supported by competent substantial evidence. (Applicants Ex. 14; Palmer Vol. Ill: 433-34; Steffer Vol. IV: 510) Furthermore, nothing in the District's requirements requires strict adherence to these publications. See ERP- AH. 12.2.7. Indeed, ERP-A.H. 12.2.7 (b), the provision of the Applicant's Handbook that mentions the publications, specifically states that applicants may propose measures inconsistent with the guidelines. Throughout the remainder of this exception, it appears that Petitioners are attempting to re-litigate the case. However, the Governing Board may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses, or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown, supra. The issue is not whether the record contains evidence contrary to the findings of fact in the recommended order, but whether the finding is supported by any competent substantial evidence. Fla. Sugar Cane League, supra. Accordingly, Petitioners’ exception no. 14 is rejected. Petitioners' Exception 15 It is not clear as to what the Petitioners are taking exception. Finding of fact no. 52 states what activities the BEMP will limit within 750 feet and between 750 and 1500 feet of the eagles’ nest during the nesting season. Petitioners again appear to reargue exception no. 14 that because the BEMP did not strictly comply with the Management 21 Guidelines and the Monitoring Guidelines, the Applicants failed to provide reasonable assurance that secondary impacts to the eagle’s nest would not occur. First, pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception and does not include appropriate and specific citations to the record. Nevertheless, this finding of fact is supported by competent substantial evidence. (Applicants Ex. 14). The issue is not whether the record contains evidence contrary to the ALu’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane Leaque, supra. Based on the foregoing and the grounds set forth in the ruling on Petitioners exception no. 14, Petitioners’ exception no. 15 is rejected. Petitioners' Exception No. 16 Petitioners take exception to finding of fact no. 57 wherein the ALJ finds that the preservation of wetlands will prevent activities that are unregulated from occurring there. Petitioner asserts that because unregulated activities have occurred in the past there is no competent substantial evidence to support this finding. However, the District finds competent substantial evidence to support this finding of fact. (Wentzel Vol. V: 663-66, Applicants Ex. 16; Applicants Ex. 5b, Sheet 8). Thus, this finding of fact is supported by competent substantial evidence and it may not be disturbed. See, § 120.57(1)(I), Fla. Stat. Freeze, supra; Berry, supra; Fla. Sugar Cane Leaque, supra. Accordingly, Petitioners’ exception 16 is rejected. 22 Petitioners' Exception No. 17 Petitioners take exception to recommended finding of fact no. 58 wherein the ALJ found that mitigation for impacts to Wetlands 2 and 6 was not required. Specifically, Petitioners argue that mitigation should be provided for impacts to Wetland 6. Section 12.2.2.1, ERP-A.H., provides: Compliance with subsections 12.2.2 - 12.2.3.7, 12.2.5 - 12.3.8 will not be required for regulated activities in isolated wetlands less than one half acre in size, unless: (a) the wetland is used by threatened or endangered species, (b) the wetland is located in an area of critical state concern designated pursuant to chapter 380, FLA. STAT., (c) the wetland is connected by standing or flowing surface water at seasonal high water level to one or more wetlands, and the combined wetland acreage so connected is greater than one half acre, or (d) the District establishes that the wetland to be impacted is, or several such isolated wetlands to be impacted are cumulatively, of more than minimal value to fish and wildlife based on the factors in subsection 12.2.2.3. [emphasis added] in recommended finding of fact no. 58, the ALJ finds that Wetland 6: is isolated and tess than one half acre in size; is not used by threatened or endangered species; is not located in an area of critical state concern; is not connected at seasonal high water level to other wetlands; and is not more than minimal value, singularly or cumulatively, to fish and wildlife. (Wentzel Vol. IV: 624-25, 640-41, District Ex. 1). Thus, there is competent substantial evidence in the record to support the factual underpinnings for the ALJ’s conclusion that no mitigation, pursuant to sections 12.3 through 12.3.8, ERP-A.H., was required for impacts to Wetland 6. 23 To the extent we find that Petitioners' exception is a reiteration of Petitioners’ exception numbers 3, 4, 10, and 11, and as such, for the reasons set forth in our rulings on those exceptions, Petitioners’ exception no. 17 is rejected. Petitioners' Exception No. 18 Petitioners take exception to finding of fact no. 63. Specifically, Petitioners take exception to the ALJ’s finding that “the project will not cause any adverse flooding impacts off the property downstream” because “the only evidence referred to by the ALJ in this finding is the peak rate of discharge information” and because the Petitioners raised issues “that were ignored by the ALJ ...” In the remainder of the exception, Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. Pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception. Nevertheless, this finding of fact is supported by competent substantial evidence. (Wimpee Vol. 1: 50-51, 71; Applicants Ex. 7, p.2; Register Vol. V: 791-93). See also, § 120.57(1)(I), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club, supra. As noted above, the issue is not whether the record contains evidence contrary to the ALJ’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane League, supra. Furthermore, contrary to Petitioners’ characterization of the ALJ’s handling of the downstream adverse flooding issue, the ALJ addressed offsite adverse flooding impacts elsewhere in the recommended order. See, R.O. at 28, 91 65. For the foregoing reasons, Petitioners’ exception no. 18 is rejected. 24 Petitioners' Exception No. 19 Petitioners take exception to finding of fact no. 65. Specifically, Petitioners take exception to the ALu’s finding that “the overall watershed model provided additional support to demonstrate that the project will not cause additional flooding downstream.” First, Petitioners claim the finding is based upon a watershed model and St. Johns County studies that were hearsay. The Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ regarding hearsay. -§ 120.57(1)(I), Fla. Stat.; Barfield, supra. Furthermore, the exception essentially requests that the Governing Board reweigh the credibility and reliability of the evidence underlying this finding which was solely the purview of the ALJ and not the Governing Board. Petitioners state that testimony was inconsistent. However, the decision to believe one expert over another is left to the ALJ as the fact finder and cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra. This finding of fact is supported by competent substantial evidence. (Wimpee Vol. |: 58-63 and Vol. 1X:1333-37, 1341-42; Register Vol. V: 796; Applicants Ex. 8). See also, § 120.57(1)(I), Fla. Stat; Berry, supra; Fla. Chapter of Sierra Club, supra. Furthermore, some of Petitioners’ exception no. 19 relates to the delineation of the watershed, which was addressed in findings of fact 70-75. (R.O. 30-33). Petitioners did not take exception to findings of fact 70-73 and took exception to findings of fact 74-75 in exceptions 21-22. 25 Based on the foregoing and the grounds set forth our rulings on Petitioners exception numbers 21-22, Petitioners’ exception no. 19 is rejected. Petitioners' Exception No. 20 Petitioners take exception to finding of fact no. 69. Specifically, Petitioners take exception to the ALJ’s finding that “the higher staging in Wetland 1 in the post development condition is ‘below flood stages” on the grounds that there is no a competent substantial evidence “setting forth the ‘flood stages” and supporting the finding that the staging in Wetland 1 is below “flood stages.” First, there is competent substantial evidence setting forth a “flood stage.” The Applicants’ engineer testified that the “flood stage” was 17.1 feet, which was the lowest finished floor elevation in the area (the “area” was node 99, which included Wetland 1). (Wimpee Vol. IX: 1336-37; Applicants Ex. 8). However, we agree that there is no competent substantial evidence to support the finding that the wetland staging in the overall watershed model is below the flood stage of 17.1 feet. The table and graph in Applicants Ex. 8 entitled “Pre vs. Post-Development Wetland Staging for the 25 yr/24 hr Storm” shows staging above 17.1 feet for some time after the peak stage. See also, Wimpee Vol. |: 87-88. Modifying this finding of fact does not change the outcome of the proceedings. The Applicants’ project complies with District criteria even though the overall watershed model indicates that the staging above 17.1 feet in post-development will be slightly higher than in pre-development at a time after the peak stage. (The staging above 17.1 feet in post-development is at most 0.04 feet higher than in pre-development. 26 (Applicants Ex. 8.) The Applicants’ project meets the District's presumptive criteria; the overall watershed model was an additional analysis to confirm that the project would not cause an increase in the peak stage or peak duration of flooding downstream. (Wimpee Vol. {: 58-62 and Vol. IX: 1333, 1336-37; Register Vol. V: 791-93, 796; Applicants Ex. 7 and 8). For the foregoing reasons, Petitioners’ exception number 20 is granted, in part, and rejected, in part. The second sentence of recommended finding of fact number 69 is modified to read: “But those stages are after peak flows have occurred.” Petitioners' Exception No. 21 This exception asserts that finding of fact no. 74 should be rejected as based solely on hearsay. The Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ. § 120.57(1)(I), Fla. Stat.; Barfield, supra. Therefore, the exception is rejected. The exception also incorporates by reference Petitioners exception no. 19 and this incorporation is also rejected on the same grounds as the ruling on Petitioners’ exception no. 19. Petitioners' Exception No, 22 Petitioners’ take exception to finding of no. 75 wherein the ALJ found that the 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. Petitioners’ assert "the ALJ misconstrued Mr. Bullard's testimony, demonstrating a fundamental unfairness of the proceedings by the ALJ since the evidence used by the Applicant's 27 was sufficient for the ALJ, but the same information used by the Petitioners’ results in a finding of no supporting documents." Pursuant to section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception. Nevertheless, the decision to accept the testimony of one witness over that of another and thereby weigh witness credibility is left to the discretion of the ALJ and cannot be changed absent a complete lack of competent substantial evidence from which the finding of fact could be reasonably inferred. Purdue, supra. There is competent substantial evidence to support the ALuJ’s finding of fact. (Bullard Vol. VII: 1179, 1233). Accordingly Petitioners’ exception no. 22 is rejected. Petitioners' Exception No. 23 Petitioners take exception to the first sentence finding of fact no. 79 that the stormwater system is designed in accordance with District rules because the finding “fails to set forth a concise and explicit statement of underlying facts of record to support the finding, and merely tracks the language of the rules, demonstrating that the ALJ did not comply with the statutory mandate of Section 120.569(2)(m), Fla. Stat.” First, section 120.569(2)(m), Fla. Stat., states that “[flindings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, must be accompanied by a concise and explicit statement of the underlying facts of record which support the findings.” [emphasis added] This section does not apply to the “language of the rules” as stated by Petitioners. Petitioners’ exception fails to identify the statute the finding allegedly duplicates, and in fact, nothing in the finding duplicates a statute. 28 Also, there is competent substantial evidence in the record to support finding of fact no. 79. See, (Wimpee Vol. |: 55, 65, 63, 70 and Vol. IX: 1356, 1363, 1365-68, 1370-71, 1375-77, 1404, 1406; Burks Vol. IX: 1298; Register Vol. V: 803-05; Ginns Ex. 5 and 7; District Ex. 1). For the foregoing reasons, Petitioners’ exception no. 23.is rejected. Petitioners' Exception No. 24 Petitioners take exception to finding of fact no. 81 wherein the ALJ states that “the Ginns intend to retain dewatering from the construction on the project site. We find that Petitioners' exception is a reiteration of Petitioners’ exception no. 1, and as such, for the reason set forth in our ruling on that exception, Petitioners’ exception no. 24 is rejected. Petitioners' Exception No. 25 Petitioners’ take exception to recommended finding of fact number 85 wherein the ALJ found that pond DA-1 would have minimal influence on groundwater near the pond. Petitioners’ assert that the Applicants have not provided reasonable assurance that DA-1 will not intercept a contamination plume emanating from the landfill. Petitioners' contend that even if DA-1 does not change the groundwater flow, DA-1 will be excavated into the groundwater, thereby exposing contaminants to the surface waters. Petitioners provide no legal basis for their exception or citations to the record as required in 120.57(1)(k), Fla. Stat. As a result, the Governing Board is not required to 29 rule on this exception. Nevertheless, the ALJ's findings are supported by competent substantial evidence. (Register Vol. V: 801-02). Thus, this finding of fact may not be disturbed. See, Section 120.57(1)(I), Fla. Stat. Freeze, supra, Berry, supra; Fla. Sugar Cane Leaque, supra. With respect to Petitioners’ contention that the ALJ failed to consider the potential that DA-1 will intercept a contaminated plume emanating from the landfill, this particular water quality issue is addressed in other findings. In findings of fact numbers 88 and 89, the ALJ found that groundwater sampling conducted by the Applicants did not detect any violations of water quality standards. In addition, in findings of fact numbers 95 and 96, the ALJ found that the water quality sampling conducted by the Applicants “included parameters that were representative of contaminants in landfills that would have now spread to the project site” and that “based on the lack of contamination found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either the groundwater does not flow from the landfill toward the project site or the groundwater moving away from the landfill is not contaminated.” (R.O. 41). None of these findings were contested by Petitioners. For the foregoing reasons, Petitioners’ exception no. 25 is rejected. Petitioners' Exception No. 26 Petitioners’ take exception to recommended finding of fact number 87, wherein the ALJ finds that the St. Johns County Health Department, in 1989, conducted an investigation on the project site to determine the amount of sewage and garbage on the project site. Petitioners’ allege that this statement is not supported by competent 30 substantial evidence. Petitioners’ also recite evidence of other incidences of dumping on the project site and further allege that there is no competent substantial evidence that garbage is not on the site anymore. In regard to the ALu's finding that. excavations were undertaken in 1989 to determine the amount of sewage and garbage on the project site, there is competent substantial evidence to support this finding (Ginn Vol. 9: 1424-25; Rogers Vol. VII: 1025-29; Applicants Ex. 30). It appears that the Petitioners are requesting that the District make additional findings regarding this issue which this the agency cannot do. Burton vs. Morgan 643 So.2d 1103 (FL 4" DCA 1994). In the last sentence of this exception, Petitioners state that the ALJ made the finding that there was no longer any garbage on the site. No such finding is made in paragraph 87. Accordingly, Petitioners’ exception 26 is rejected. Petitioners' Exception No. 27 Petitioners take exception to finding of fact no. 90 wherein the ALJ states that “the sewage sludge and garbage were excavated.” Petitioners provide no legal basis for their exception or citations to the record as required by 120.57(1)(k), Fla. Stat. Asa result, the Governing Board is not required to rule on this exception. Nevertheless, we find that this finding is not supported by competent substantial evidence, but this does not affect the ultimate conclusion that groundwater at the site meets state water quality standards. See (R.O. 41-42 at 4] 96-96) 31 Accordingly, Petitioners’ exception is granted and the second sentence of finding of fact no. 90 is deleted. Petitioners’ Exceptions No. 28 Petitioners take exception to finding of fact no. 100 wherein the ALJ found that “(p]ased on the project plans, the terms of the BEMP [Bald Eagle Management Plan], and this analysis, the USFWS [U.S. Fish and Wildlife Service] concluded that the Ravenswood project ‘is not likely to adversely affect’ the bald eagles at the Ravenswood site.” Petitioners assert that finding of fact no. 100 should be rejected as not supported by competent substantial evidence because it is based solely on hearsay, is not scientifically acceptable and is based upon incomplete information. First, the Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ regarding hearsay. § 120.57(1)(I), Fla. Stat.; Barfield, supra. Also, the reliability or credibility of evidence is the purview of the ALJ as the fact finder, not the Governing Board. The decision to accept the testimony of one witness over that of another and thereby weigh witness credibility is left to the discretion of the ALJ and cannot be changed absent a complete lack of competent substantial evidence from which the finding of fact could be reasonably inferred. Purdue, supra. Moreover, the burden of challenging the credibility or reasonableness of an expert's reliance on certain facts or data rests on cross-examination by opposing party and goes to the weight to be given the evidence by the fact finder. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985); G.V. v. Dep’t of Children and Families, 795 So.2d 1043 (Fla. 3d DCA 2001). 32 This finding of fact is supported by competent substantial evidence and may not be disturbed. (Palmer Vol. Ill: 419-421, 431). See also, Section 120.57(1)(\), Fla. Stat. Freeze, supra; Berry, supra; Fla. Sugar Cane Leaque, supra. Accordingly, Petitioners’ Exception no. 28 is rejected. Petitioners’ Exception No. 29 Petitioners assert finding of fact no. 101 should be rejected as based solely upon hearsay and the lack of competence of the testifying witness. The Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ. § 120,57(1)(I), Fla. Stat; Barfield, supra. Also, the reliability or credibility of evidence is the purview of the ALJ as the fact finder, not the Governing Board. The decision to accept the testimony of one witness over that of another and thereby weigh witness credibility is left to the discretion of the ALJ and cannot be changed absent a complete lack of competent substantial evidence from which the finding of fact could be reasonably inferred. Purdue, supra. This finding of fact is supported by competent substantial evidence and may not be disturbed. (Palmer Vol. Ill: 407-11). See also, Section 120.57(1)(I), Fla. Stat. Freeze, supra; Berry, supra; Fla. Sugar Cane League, supra. Accordingly, Petitioners’ exception no. 29 is rejected. Petitioners' Exception No. 30 Petitioners take exception to finding of fact no. 103 wherein the ALJ finds that it has been learned since publication of the Management Guidelines in 1987 that eagles 33 can tolerate more disturbance than was thought at that time. Petitioners assert that the opinions against the use of the 1987 Management Guidelines were not based on “professionally acceptable science and were mere personal opinions." Pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception and does not include appropriate and specific citations to the record. Nevertheless, the decision to believe one expert over another is left to the administrative law judge as the fact finder and cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter Sierra Club, supra. These are evidentiary matters within the province of the Administrative Law Judge. Bradley, supra. The Governing Board may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown v. Criminal Justice Standards & Training Comm'n., 667 So.2d 977 (Fla. 4" DCA 1996). This finding of fact is supported by competent substantial evidence and it may not be disturbed. (Palmer Vol. Ill: 433; Steffer Vol. IV: 510). See also, Section 120.57(1)(|), Fla. Stat. Freeze, supra; Berry, supra; Fla. Sugar Cane Leaque, supra. Accordingly, Petitioners’ exception 30 is rejected. Petitioners’ Exception No. 31 An exception is taken to the last sentence of recommended finding of fact no. 104 in which the ALJ expressly accepts and credits the opinion testimony of 34 Respondent's bald eagle experts, claiming the sentence violates section 120.569(2)(m), Fla. Stat., because the finding merely tracks statutory language without a supporting statement of underlying facts of record. Contrary to section 120.57(1)(k), Petitioners fail to identify the statute this sentence allegedly duplicates, and in fact, the sentence does not duplicate any statute. Moreover, the sentence represents the fact finder’s express weighing of the evidence which the Governing Board cannot disturb. Goss, supra; Heifitz, supra; Brown, supra. Accordingly, Petitioners’ exception no. 31 is rejected. Petitioners' Exception No. 32 Petitioners take exception to recommended finding of fact number 105 wherein the ALJ found that "evidence did not suggest a valid reason to assume that the Ginn's proposed eagle monitoring will not be conducted in good faith and effectively." In this exception, Petitioners essentially reargue their case in an attempt to have the Governing Board reweigh and interpret evidence. As previously noted, the Governing Board may not reweigh evidence submitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown, supra. The issue is not whether the record contains evidence contrary to the ALJ’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane Leaque, supra. Also, pursuant to Section 120.57(1)(k), Fla. Stat., the Governing Board need not rule on this exception because it does not identify the legal basis for the exception and does not include appropriate and specific citations to the record. For the foregoing reasons, Petitioners’ exception 32 is rejected. Petitioners Exception 33 Petitioners take exception to the last clause of recommended finding of fact no. 111 in which the ALJ concludes “the project will not be contrary to the public interest,” as required by section 373.414(1)(a), Fla. Stat., and Rule 40C-4.302, Florida Administrative Code. Petitioners assert that this legal conclusion or ultimate fact violates section 120.569(2)(m), Fla. Stat., by lacking a statement of underlying facts. The underlying facts supporting this finding are easily located in findings of fact nos. 112-118. Accordingly, Petitioners’ exception no. 33 is rejected. Petitioners Exception 34 In Petitioners’ exception no. 34, Petitioners take exception to finding of fact no. 112. Specifically, Petitioners take exception to the ALJ’s finding that “the project will not adversely affect the public health, safety and welfare” and that “the project will not cause flooding to offsite properties” because the ALJ “fails to provide a concise and explicit statement of the underlying facts of record that support the finding, as required by Section 120.569(2)(m), Fla. Stat.” First, although labeled as a finding of fact, finding of fact no. 112 is a mixed question of law and fact. If a finding of fact is improperly labeled by the ALJ, the label should be disregarded and the item treated as though it were properly labeled as a conclusion of law. See, Battaglia Properties, supra. To the extent that finding of fact no. 112 is a conclusion of law, the requirements of Section 120.569(2)(m), Fla. Stat., are not applicable. To the extent that finding of fact no. 112 is a mixed question of law 36 and fact, a finding that involves both factual and legal conclusions cannot be rejected where there is substantial competent evidence to support the factual conclusion and where the legal conclusion necessarily follows. Berger, supra. Second, even if we were to conclude that finding no. 112 is solely a finding of fact, the ALJ has complied with Section 120.569(2)(m), Fla. Stat., by setting forth a concise and explicit statement of underlying facts of record. The finding includes facts relevant to the ultimate finding, which is that the “project will not adversely affect 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.” (R.O. 48) [emphasis added}. The facts related to the system design, peak rate of discharge, and offsite flooding are in the recommended order. See, R.O. at 16-18, J] 33-39; at 26-29, |] 61-66; at 34, ] 78; at 35-37, {] 79-82, and at 47, {| 108; See also, ERP-A.H., 12.2.3.1. | For the foregoing reasons, Petitioners’ exception no. 34 is rejected. Petitioners Exception 35 Petitioners assert the first sentence of recommended finding of fact number 113 violates section 120.569(2)(m), Fla. Stat., by lacking a statement of underlying facts. Contrary to section 120.57(1)(k), the exception fails to identify the statute the sentence allegedly duplicates, and in fact, the sentence does not duplicate any statute. Regardless, the finding is otherwise supported by findings of fact nos. 31-33, 46, 47, 51- 59, 97-105. Accordingly, Petitioners’ exception no. 35 is rejected. 37 Petitioners Exception 36 Petitioners take exception to fact of fact no. 115 wherein the ALJ found that “(djevelopment 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.” Petitioners allege that there is no competent substantial evidence in the record to support this finding. Although labeled as a finding of fact, finding of fact no. 115 is a mixed question of law and fact. To the extent that finding of fact no. 115 is a mixed question of law and fact, a finding that involves both factual and legal conclusions cannot be rejected where there is substantial competent evidence to support the factual conclusion and where the legal conclusion necessarily follows. Berger, supra. First, there is competent substantial evidence to support the ALJ's factual conclusion. (Wenizel Vol. V: 671-72, 687). Second, there is no evidence in the record that Mrs. McMulkin will no longer be able to watch birds and wildlife from her home next to the project site. Therefore, the ALJ reasonably concluded that the project would not result in any adverse impacts to recreational values in the vicinity of the project site. Accordingly, Petitioners exception no. 36 is rejected. Petitioners Exception 37 Petitioners assert finding of fact no. 118 violates section 120.569(2)(m) by lacking a statement of underlying facts. Contrary to section 120.57(1)(k), the exception 38 fails to identify the statute the finding allegedly duplicates, and in fact, the sentence does not duplicate any statute. Regardless, the finding identifies the underlying facts by referring to the mitigation and proposed BEMP supported by findings of fact nos. 51-59, 97-105. Accordingly, Petitioners’ exception no. 37 is rejected. Petitioners Exception 38 Petitioners assert finding of fact no. 119 violates section 120.569(2)(m), Fla. Stat. by lacking a statement of underlying facts. Contrary to section 120.57(1)(k), the exception fails to identify the statute the finding allegedly duplicates, and in fact, the finding does not duplicate any statute. Nonetheless, the underlying factual statements supporting the finding are expressly set forth in findings of fact nos. 111-118. Accordingly, Petitioners’ exception no. 38 is rejected. Petitioners Exception 39 Petitioners argue that the finding in the fifth sentence of paragraph 123 should be rejected because Exhibit 30K’ is hearsay, lacked competency and relevance. The fifth sentence found that Applicants’ Exhibit 30K, although it and the Department of Environmental Protection (f/k/a Department of Environmental Regulation) enforcement file had different numbers, verified compliance with a Consent Order. First, the exception asserts that the Exhibit 30K should be rejected as hearsay. The Governing Board lacks substantive jurisdiction to confirm, modify or overrule an evidentiary ruling of the ALJ. § 120.57(1)(I), Fla. Stat.; Barfield v. Dep’t of Health, 805 1 Exhibit 30K is a letter from the Florida Department of Environmental Regulation to Mr. Michael Adams dated February 13, 1991, regarding DER v. Clyatt R. Powell et al; OGC File No. 89-0964C. 39 $o0.2d 1008 (Fla. 1** DCA 2001) (the department lacks substantive jurisdiction to overrule the judge’s evidentiary ruling regarding hearsay). Second, there is competent substantial evidence in the record to support the ALJ's finding that the terms of the Consent Order had been satisfied. Jay Ginn, who owned the property at the time of the Consent Order and who owns it now, testified that he had taken actions to comply with the Consent Order and that he has not heard from the DEP since he received Exhibit 30K. (Ginn Vol IX: 1428 - 31, 1435). The last sentence of paragraph 123 finds that nothing had been heard about the Consent Order since 1991 and Mr. Ginn testified to that fact. (Ginn Vol IX: 1435). Mr. Ginn also testified on rebuttal that he hired Mr. Adams to oversee the restoration required under the Consent Order and received Exhibit 30K addressed to Mr. Adams indicating satistaction of the terms of the Consent Order. Because this finding of fact is supported by competent substantial evidence, it may not be disturbed. See Section 120.57(1)(I), Fla, Stat. Freeze, supra; Berry, supra; Fla. Sugar Cane Leaque, supra. Accordingly, Petitioners’ exception 39 is rejected. Petitioners Exception 40 Petitioners take exception to conclusion of law no. 133 wherein the ALJ concludes that the project will not cause an increase in the stage or duration of downstream flooding. Petitioners allege that there is no competent substantial evidence to support this conclusion. Again, Petitioners fail to identify appropriate and specific citations to the record as required by section 120.57(1)(k), Fla. Stat., and, therefore, the Governing Board need not rule on this exception. Nevertheless, finding of fact numbers 61-78 provide the factual underpinnings for the ALJ’s conclusion and we find that there is competent substantial evidence in the record to support those findings. (Wimpee Vol. IX: 1336-37; Applicants Ex. 8 p.10) To the extent that Petitioners’ exception is also a reiteration of Petitioners’ exception numbers 6, 7, 18, 19, 20 and 21, we incorporate our rulings on those exceptions. For all of the foregoing reasons, Petitioners’ Exception 40 is rejected. Petitioners’ Exception 41 Petitioners argue that paragraph 135 of the conclusions of law should be rejected, contending that the Applicants failed to provide competent substantial evidence for alleged factors that applied and, commensurately, the ALJ failed to make findings on each applicable factor. The Petitioners misread the applicable requirement, make numerous conclusory statements, and once again re-argue the facts. Conclusion of law 135 states that the Applicants proposed to temporarily or permanently impact all wetlands but Wetland 5 and that the Applicants demonstrated practicable design modifications as required for Wetlands 1 and 4. Petitioners exception appears to focus on the ALJ’s conclusions regarding Wetland 1. Petitioners state that ERP-A.H. 12.2.1.1 defines the term “practicable design modification” and then highlight various portions of the Handbook provision. Thereafter, the Petitioners argue that the highlighted portions are each a separate criteria. ERP- A.H, 12.2.1.1 is not a definition of what the term “practicable design modification” is, but a statement of what it is not. The provision states what is not a “modification” and what is not “practicable.” It does state that in determining whether a proposed modification is 41 practicable, consideration shall be given to the cost of the modification compared to the environmental benefit it achieves. The Applicants proposed and evaluated a modification that involved placing the water and sewer mains outside of Wetland 1 rather than through it. (Applicants’ Ex. 11). The analysis demonstrated that routing the proposed utility services around the project site would cost approximately $80,000 to $100,000. (Wentzel Vol.IV: 620; Brown VolLIII: 315-18). The impact avoided is a temporary impact and it is likely that the area to be on impacted can be successfully reestablished and restored, and preservation of Wetland 1 is proposed to address lag time for reestablishment. (Wentzel Vol.IV: 620-21; Brown Vol. Ill: 315-18). The District reviewed the analysis and concurred that routing the water and sewer mains outside of Wetland 1 was not a practicable design modification because the costs of avoidance outweighed the environmental benefits of avoidance. (District's Ex. 1; Wentzel Vol. IV: 621); See also, R.O.18-22. Therefore, the ALJ reasonably concluded that practicable design modifications were implemented for the impacts to Wetland 1. The Petitioners reargue what the ALJ rejected. The Governing Board may not reweigh evidence submitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, supra; Heifitz, supra; Brown, supra. The issue is not whether the record contains evidence contrary to the ALJ’s finding, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane League, supra. 42 Accordingly, Petitioners’ exception no. 41 is rejected. Petitioners’ Exception 42 Petitioners take exception to conclusion of law number 136 wherein the ALJ concludes that Applicants were not required to implement practicable design modifications to eliminate or reduce impacts to Wetlands 2, 3, 6, and 7. We find that Petitioners’ exception is a reiteration of Petitioners’ exception numbers 3, 4, 11, and 12, and as such, for the reasons set forth in our rulings on those exceptions, Petitioners’ exception no. 42 is rejected. Petitioners’ Exception 43 Petitioners take exception to recommended conclusion of law number 138 wherein the ALJ concludes that the Applicants 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. We find that Petitioners’ exception is a reiteration of Petitioners’ exception numbers 3, 4, 11, 12 and 17, and as such, for the reasons set forth in our rulings on those exceptions, Petitioners’ exception no. 43 is rejected. Petitioners’ Exception 44 Petitioners argue that the first sentence of paragraph 139 must be rejected because the ALJ did not make a concise and explicit statement supporting any finding that the mitigation more than replaces the functions provided by the wetlands and 43 surface waters to be affected by the project and a lack of reasonable assurance that the mitigation will offset the adverse impacts from the project. Paragraphs 22 through 59 of the Recommended Order justify the conclusion in paragraph 139 of the Recommended Order. See also, Wenitze! Vol. V: 667. Accordingly, Petitioners’ exception 44 is rejected. Petitioners Exception 45 Petitioners take exception to conclusion of law no. 140. Specifically, Petitioners take exception to the ALJ’s conclusion that “the greater weight of the evidence shows that the stormwater system complies with the applicable rule criteria” because the conclusion “is not supported by concise and explicit findings of fact” and because “conclusory statements ... [do] not constitute competent substantial evidence to support a conclusion of law.” Because Petitioners do not include appropriate and specific citations to the record, the Governing Board is not required to rule on this exception pursuant to § 120.57(1)(k), Fla. Stat. Nevertheless, there is competent substantial evidence in the record to support the ALJ’s conclusion. (Wimpee Vol. |: 63, 70; Register Vol. V: 803- 05; Ginns Ex. 5 and 7; District Ex. 1). Therefore, this conclusion of law is a proper interpretation of the District’s rules based on the findings of fact found by the ALJ and cannot be rejected or modified by the Board. See, § 120.57(1)(!), Fla. Stat.; Berry, supra; Fla. Chapter of Sierra Club, supra. Furthermore, Petitioners’ exception that the conclusion of law is not supported by concise and explicit findings of fact appears to refer to Section 120.569(2)(m), Fla. Stat., 44 which applies to findings of fact. This exception is to a conclusion of law, so Section 120.569(2)(m), Fla. Stat., is not applicable. For the foregoing reasons and for the reasons set forth in our ruling on Petitioners’ exception no. 23, Petitioners’ exception 45 is rejected. Petitioners’ Exception 46 Petitioners take exception to conclusion of law no. 141. Specifically, Petitioners take exception to the ALJ’s conclusion that Applicants have met ERP-A.H. 12.2:4 asserting the Applicant has not submitted a dewatering plan and therefore has not provided reasonable assurances that the project meets District rules. We find that Petitioners' exception is a reiteration of Petitioners’ exception numbers 1 and 49, and as such, for the reasons set forth in our rulings on those exceptions, Petitioners' exception no. 46 is rejected. Petitioners’ Exception 47 Petitioners argue, relative to groundwater impacting surface water, that the ALJ could not make a conclusion that because the evidence established the absence of violations in groundwater, reasonable assurance had been provided for compliance with Rule 40C-4.301(1)(e), Florida Administrative Code. The Petitioners provide no basis in fact or law for their argument. The Petitioners merely state the conclusion that the rules do not support paragraph 142 and the Administrative Law Judge misunderstood the burden of proof. Paragraphs 83 through 96 of the Recommended Order justify the 45 conclusion in paragraph 142 of the Recommended Order. Accordingly, Petitioners’ Exception 47 is rejected. Petitioners’ Exception 48 Petitioners take exception to recommended conclusion of law number 143 wherein the ALJ concludes that reasonable assurance was provided that the proposed project will not violate water quality standards. Contrary to section 120.57(1)(k), the exception fails to identify any legal explanation in support of the exception. The conclusion of law is derived from findings of fact 60, 79-96 and is also supported by conclusions of law 140-142. Accordingly, Petitioners’ exception number 48 is rejected. Petitioners’ Exception 49 In Petitioners’ exception no. 49, Petitioners take exception to conclusion of law no. 145. Specifically, Petitioners take exception to the ALJ’s conclusion that “secondary impacts will not cause adverse impacts to the functions of wetlands or surface waters.” The first part of this exception relates to the dewatering plan, which is discussed in Petitioners’ exceptions numbered 1, 24, and 46. The second part of this exception relates to the “secondary impacts from the groundwater withdrawals from dewatering since it [the Applicant] has not provided a dewatering plan” and “there was no evidence that there is a consumptive use permit.” To the extent that this part of the exception relates to the dewatering plan, we have previously addressed this issue in our rulings on Petitioners’ exception numbers 1, 24 and 46. Also, Petitioners’ exception misquotes and misapplies ERP-A.H. 12.2.7(a). See, ERP-A.H. 12.2.7(a) and 12.2.2.4. 46 The third part of this exception relates to impacts to bald eagles and incorporates Petitioners’ exceptions to findings of fact numbered 51, 52, 103, 104, and 105, which | are addressed in Petitioners’ exceptions numbered 14, 15, 30, 31, 32. We find that Petitioners’ exception is a reiteration of Petitioners' exception numbers 1, 14, 15, 24, 30, 31, 32 and 46, and as such, for the reasons set forth in our rulings on those exceptions, Petitioners' exception no. 49 is rejected. Petitioners’ Exception 50 Petitioners take exception to recommended conclusion of law number 146 wherein the ALJ states that “[t]he 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).” Petitioners contend that the uplands within the primary and secondary protection zones of the Management Guidelines enable the existing nesting of the bald eagles and should be considered under section 12.2.7(b), ERP-A.H. First, part (b) of the secondary impact test is applicable in its entirety to this project. This part of the test requires a permit applicant to provide reasonable assurance that the construction, alteration, and intended or reasonable expected uses of a proposed 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, but not including: 1. Areas needed for foraging; or 47 2. Wildlife corridors, except for those limited areas of uplands necessary for ingress and egress to the nest or den site from the wetland or other surface water. (Emphasis added). See, Section 12.2.7(b), MSSW-A.H. (Table 42.2.7.-1 of the ERP Applicant's Handbook identifies those aquatic or wetland dependent listed species that use upland habitats for nesting and denning). Second, the only conclusion that can be drawn is that no adverse secondary impacts will occur under this part of the test. Finding of fact numbers 10, 22 and 98 all state that the eagle’s nest is located within Wetland 1. The uplands within the primary and secondary eagle protection zones in this case are not uplands used by aquatic and wetland dependent listed animal species for enabling existing nesting or denning. The ALJ’s interpretation of ERP-A.H. 12.2.7 (b) is consistent with the District's interpretation, and the District's interpretation is correct. ERP-A.H. 12.2.7(a) and not 12.2.7(b) applied to the eagles and their nest because the text of 12.2.7 (b) clearly indicates that (b) , applies to aquatic or wetland dependent species that use uplands for nesting and denning at the time of the application. In the instant case, the eagles’ nest was in Wetland 1. Hence, (a), not (b), applies. Whether (a) or (b) applies is of no consequence to the outcome of the case. Nothing in the District's requirements requires strict adherence to the Guidelines. See ERP-A.H. 12.2.7. Indeed, 12.2.7 (b), the provision of the Applicant's Handbook that mentions the publications specifically states that applicants may propose measures other than those contained in the guidelines. In the last sentence of paragraph 146, the ALJ states that the impacts to the eagles and their nest were addressed under (a). Accordingly, Petitioners’ exception no. 50 is rejected. 48 Petitioners’ Exception 51 Petitioners apparently assert conclusion of law no. 152 violates section 120.569(2)(m), Fla. Stat., by lacking an underlying factual statement. Foremost, section 120.569(2)(m) applies to findings of fact, not to conclusions of law. Also, contrary to section 120.57(1)(k), the exception fails to identify the statute the conclusion of law allegedly duplicates, and in fact, the conclusion of law does not duplicate any statute. Accordingly, Petitioners’ exception no. 51 is rejected. Petitioners’ Exception 52 Petitioners apparently assert conclusion of law no. 156 violates section 120.569(2)(m), Fla. Stat., by lacking a statement of underlying facts. This exception is rejected on the same grounds as the ruling on exception no. 51. Petitioners’ Exception 53 An exception is taken to conclusion of law no. 157 on the same basis as Petitioners’ exception no. 44. The exception is rejected on the same grounds as the . tuling on exception no. 44. 49 RULINGS ON DISTRICT’S EXCEPTIONS SJRWMD Exception No. 1. The St. Johns River Water Management District notes that the Recommended Order fails to acknowledge Tara Boonstra as appearing as an attorney of record at the hearing for the St. Johns River Water Management District. The Final Order reflects that Tara Boonstra appeared on behalf of the St. Johns River Water Management District. SJRWMD Exception No. 2 The St. Johns River Water Management District seeks a clarification of the Statement of the Issue which infers the Environmental Resource Permitting program regulates more than the construction and operation of a surface water management system. The Statement of the Issue has been clarified and is set forth in this Final Order. SJRWMD Exception No. 3 District staff take exception to finding of fact no. 1 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that the District administers and enforces statutes and “...Florida Administrative Code Rules promulgated by the District...” (R.O. 5-6). No evidence was presented to demonstrate that the District administers and enforces only those Florida Administrative Code rules that are promulgated by the District. Rather, the District administers and 50 enforces the rules promulgated under Chapter 373, Florida Statutes. See, District PRO at 4,12; Ginns PRO at 5, 4] 2; Petitioners PRO at 2, 2; ERP-A.H. 1.0. Therefore, finding of fact 1 is modified to read as follows: “...and Florida Administrative Code Rules promulgated under the authority of those statutes.” This modification does not change the outcome of the proceedings. Accordingly, the District Exception no. 3 is granted and the first sentence of finding of fact no. 1 is modified as follows: 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-Distict under the authority of those statutes. SJRWMD Exception No. 4 District staff take exception to a typographical error in the second sentence of Finding of Fact 2 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that the development to be constructed is “a 136-acre residential community.” (RO at 6). There is no evidence in the record that the development is 186 acres. Rather, the evidence is undisputed that the development will include 136 units or 136 lots. See, Stip. at 2, {] 1 and at 16, 4] 5(d); RO at 2, “Preliminary Statement.” Therefore, the second sentence of Finding of Fact 2 is modified to read “...a 136-unit residential community...” Correcting this typographical error does not change the outcome of the proceedings. Accordingly, District staff's exception no. 4 is granted. 31 SJRWMD Exception No. 5 In addition to Exception No. 4, District staff take further exception to the second sentence of finding of fact 2 to the extent that it slightly mischaracterizes the activity that would be authorized by the Environmental Resource Permit that is at issue in this matter on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that the Environmental Resource Permit is “to construct a 136-acre residential community and associated surface water management facilities...” (R.O. 6). As discussed above in Exception No. 2, the Environmental Resource Permit regulatory program authorized under Part IV, Chapter 373, Florida Statutes, regulates surface water management systems. See, Florida Administrative Code Rule 40C-4.041; ERP-A.H. 1.0. The statement in Finding of Fact 2 appears to have been taken from the Applicants’ Proposed Recommended Order, which does not contain a citation for the statement. See, Ginns PRO at 5, 4]3. There is competent substantial evidence to support modifying the second sentence of Finding of Fact 2 as follows: “...to construct a surface water management system serving a 136-unit residential community.” See, Stip. at 2, §] 1 and at 16, 4] 5(a); District PRO at 2. This modification will clarify the activity that would be authorized by the Environmental Resource Permit and does not change the outcome of the proceedings. Accordingly, District staff’s exception is granted and the second sentence of finding of fact no. 2 is modified as follows: They are seeking ERP Permit No. 40-109-81153-1 from the District to construct a surface water management system serving a 136-unit residential community +36-acre—residentiat_ community_and—associated surface water management sysiem. 52 SJRWMD Exception No. 6 District staff take exception to certain sentences in findings of fact nos. 10, 22, and 98 on the grounds that there is no competent substantial evidence in the record to support the findings. The third sentence in Finding of Fact 10 states that “... it was not discovered until November of 2003 that there was an eagle nest...” (R.O. 8). The last sentence in Finding of Fact 22 states that “... in November 2003 an eagle nest was discovered...” (R.O. 12). The first sentence of Finding of Fact 98 states that “When the Ginns were made aware in November 2003, ...” (R.O. 42). The undisputed evidence presented was that the Ginns learned of the presence of an eagle nest in late October 2003 and of the presence of eagles at the nest in November 2003. See, Brown Vol. Ill: 331, 361, 382; Palmer Vol. Ill: 400; Steffer Vol. IV: 481. Therefore, the third sentence in finding of fact 10 is modified to read as follows: “...it was not discovered until October of 2003 that there was an eagle nest...” The last sentence in finding of fact 22 is modified to read as follows: “...in October 2003 an eagle nest was discovered...” The first sentence of finding of fact 98 is modified to read as follows: “When the Ginns were made aware in October 2003, ...” Modifying these three sentences does not change the outcome of the proceedings. Accordingly, District staff's exception is granted and finding of fact nos. 10, 22 and 98 are modified as noted above. 53 SJRWMD Exception No. 7 District staff take exception to the third sentence in finding of fact no. 24 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that “A 24-inch culvert drains the area into a 600-foot long drainage ditch...” This appears to be a misstatement of a sentence in the Amended Pre-Hearing Stipulation, which states that “Wetland 1 and Wetland 3 are connected by an approximately 600-foot roadside drainage ditch with a 24-inch culvert.” (Prehrg. Stip. 17, 1.5(l). Evidence was presented that a culvert exists in the drainage ditch, but no evidence was presented that the culvert drains Wetland 3 into the ditch. Rather, undisputed evidence was presented that Wetland 3 was drained by a “ditch” or a “cut” into a 600-foot long drainage ditch leading to Wetland 1. See, Brown Vol. II: 278-79; Wentzel Vol. IV: 627-28; Burks Vol. IX: 1811-12. Therefore, the third sentence of finding of fact 24 is modified to read as follows: “A ditch or cut drains the area into a 600-foot long drainage ditch...” Modifying this sentence does not change the outcome of the proceedings. Accordingly, District staff's exception is granted and the third sentence of finding of fact no. 24 is modified as follows: A ditch or cut 24-ineh-culved drains the area into a 600-foot long drainage ditch along the south side of Ranvenswood Drive leading to Wetland 1. SJRWMD Exception No. 8 District staff take exception to the third sentence in finding of fact 28 on the grounds that there is no competent substantial evidence in the record to support the finding. The third sentence states that “The gopher frog is not a listed species;...” 54 District staff's exception no. 8 is granted for the reasons set forth in our ruling on Petitioners’ exception no. 3. SJRWMD Exception No. 9 District staff take exception to the second sentence of. finding of fact no. 44 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that “...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.” (RO at 21). Although labeled as a finding of fact, this portion of finding of fact no. 44 is a conclusion of law. If a finding of fact is improperly labeled by the Administrative Law Judge, the label should be disregarded and the item treated as though it were properly labeled as a conclusion of law. See, Battaglia Properties v. Fla. Land and Water Adjudicatory Commission, 629 So.2d 161, 168 (Fla. 5th DCA 1994). First, no evidence was presented that ERP-A.H. 12.2.1.1 applies 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. Rather, evidence was presented that ERP-A.H. 12.2.1.1 applies 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. See, ERP-A.H. 12.2.1.1; District PRO at 35, ]] 101, footnote 10; Wentzel Vol. IV: 624, 640-41. Second, the statement in the Recommended Order omits a portion of the rule, which provides that “Except as provided in subsection 12.2. 1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions 55 such that it does not meet the requirements of subsections 12.2.2 through 12.2.3.7, ...” See, ERP-A.H. 12.2.1.1 [emphasis added]. Although the exception in ERP-A.H. 12.2.1.2 did not apply to Wetlands 2 and 6, which were the subject of finding of fact no. 44, the statement in the Recommended Order is an incomplete statement of the rule and should be corrected for clarification. (The exception in ERP-A.H. 12.2.1.2 was referenced in finding of fact no. 45 with respect to Wetlands 3 and 7.) This legal conclusion involves the substantive regulatory jurisdiction of the St. Johns River Water Management District and is more reasonable than the erroneous legal statement contained in the finding. Modifying this sentence does not change the outcome of the proceedings. Accordingly, District staff's exception no. 9 is granted and the second sentence of this conclusion of law (labeled as finding of fact no. 44) should be modified to read as follows: As explained in testimony, except as provided in ERP-A.H. 12.2.1.2, 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 SJRWMD Exception No. 10 District staff take exception to the second sentence of finding of fact no. 58 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states that “...ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP-A.H. 12.3 through 12.3.8...” First, no evidence was presented that ERP-A.H. 12.2.2.1(d) is the provision that does not require compliance with other sections of ERP-A.H. Rather, evidence was presented that ERP-A.H. 12.2.2.1 does not 56 require compliance with ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8 unless the criteria in ERP-A.H. 12.2.2.1(a) through (d) apply. See, ERP-A.H. 12.2.2.1; Wentzel Vol. IV: 624-25, 641. Second, there is an apparent typographical error by including the word “under” following the word “with.” Evidence was presented that ERP- A.H. 12.2.2.1 does not require compliance with ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. See, ERP-A.H. 12.2.2.1; Wentzel Vol. IV: 624-25, 641. Modifying this sentence does not change the outcome of the proceedings. on Accordingly, District staff's exception is granted and finding of fact no. 58 is modified to read as follows: “...ERP-A.H. 12.2.2.1 does not require compliance with ERP-A.H. 12.3 through 12.3.8...” SJRWMD Exception No. 11 District staff take exception to sixth sentence in Finding of Fact 68 on the grounds that there is no competent substantial evidence in the record to support the finding. The finding states the following: 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 1.7 (RO at 29-30). There is no competent substantial evidence to support the finding that the tailwater elevation at the east-west ditch located just north of Josiah Street was 18.1 feet. There was disputed evidence presented that the tailwater elevation used in the Overall Watershed Model was 18.1 feet. See, Bullard Vol. VIII:1158-62; District PRO at 12, | 22; Ginns PRO at 10, 119, 20. However, the evidence that the tailwater used for ? OWM is an abbreviation for Overall Watershed Model, and SHW is an abbreviation for seasonal high water. s7 the Overall Watershed Model was 18.1 feet was based on the witness’ testimony that the location of that 18.1-foot tailwater elevation was in the “wetland receiving water,” not the east-west ditch. Bullard Vol. VIil:1158-59. Therefore, there is no competent substantial evidence in the record to support the finding that the tailwater elevation was 18.1 feet at the location of the ditch. However, if the clause “..., where the tailwater elevation was approximately 18.1 feet,...” were struck, there is competent substantial evidence to support the following finding of fact: For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, not the 19.27 feet SHW mark to the north in Wetland 1. See, Wimpee Vol. IX: 1338-41; Ginns Ex.8 at 33 and 87. Accordingly, District staff's exception is granted and the sixth sentence of finding of fact no. 68 is modified as stated above. Striking the clause does not change the outcome of the proceedings. SJRWMD Exception No. 12 District staff take exception to a typographical error in the second sentence of conclusion of law no. 127, which states that “Unless Petitioners present ‘contrary evidence of equivalent equality’. . .”_ The phrase “contrary evidence of equivalent equality” is a direct quote from Florida Dep’t of Transportation v. J.W.C., Inc., 396 So.2d 778, 789-90 (Fla. 18' DCA 1981). However, J.W.C. actually states “contrary evidence of equivalent quality.” Id. Therefore, this quote should be corrected by replacing the word “equality” with the word “quality.” 58 Accordingly, District staff's exception is granted and this typographical error is corrected as stated above. 59 FINAL ORDER ACCORDINGLY, IT IS HEREBY ORDERED: As to the ERP application, the Recommended Order dated April 16, 2004, attached hereto, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District in the ruling on Petitioners, Marilyn McMulkin and Diane Mills, Exceptions 3, 20 and 27 and District's Exceptions 1 through12. Jay and Linda Ginns’ application number 40-109-81153-1 for a standard environmental resource permit is hereby granted under the terms and conditions as set forth in the Technical Staff Report dated January 20, 2004, as revised by District Exhibit 10, both of which are attached hereto. DONE AND ORDERED this _£4% __ day of May, 2004, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT OLA Ly Ze Ometrias D. Long CHAIRMAN RENDERED this lak day of May, 2004. py xdendias Serta SANDRA BERTRAM DISTRICT CLERK Copies to: Deborah J. Andrews, Esquire 11.N. Roscoe Blvd. Ponte Vedra Beach, FL 32082 Cindy Bartin, Esquire P. O. Box 861118 St. Augustine, FL 32086 Vance Kidder, Esquire Tara Boonstra, Esquire 4049 Reid Street Palatka, FL 32177 61 STANDARD GENERAL ENVIRONMENTAL RESOURCE PERMIT TECHNICAL STAFF REPORT January 20, 2004 APPLICATION #: 40-109-81153-1 Applicant: John A. Ginn, Ill and Linda G. Ginn 421 St Johns Ave, Apt. 3 Palatka, FL 32177 Consultant: Zev Cohen & Associates, Inc. Attn: Curt Wimpee 55 Seton Tr Ormond Beach, FL 32176 (904) 677-2482 Project Name: Ravenswood Forest Project Acreage: 47.350 Receiving Water Body: San Sebastian River Class: Ill Fresh. County: St. Johns Authority: 40C-4.041(2)(b)2, 40C-4.041(2)(b)8 Final O&M Entity: Homeowners/Property Owners Association Interested Parties: No Objectors: Yes LOCATION AND BRIEF DESCRIPTION OF SYSTEM: The 47.35-acre Ravenswood Forest site is located south of Ravenswood Drive and 2,000 feet west of Masters Drive in St. Johns County. The proposed development will consist of a 136-lot subdivision with associated stormwater conveyance and treatment facilities. A PERMIT AUTHORIZING: Construction of a surface water management system for a 136-lot subdivision known as Ravenswood Forest with stormwater treatment by wet detention to be constructed as per plans received by the District on November 05, 2003, and as amended by plans received on December 10, 2003. ENGINEERING COMMENTS: The project stormwater treatment system is proposed to include two connected wet detention ponds to treat and attenuate the runoff from the project site. Both ponds are designed with an independent control structure. The central pond (DA-1) cascades into the southern pond (DA-2) through its control structure and connecting64’ pipe. The discharge from DA-1 and the direct runoff from Basin 2 are attenuated in DA-2 before being discharged through a control structure to an onsite wetland. SJRVMP Exhibit No. _ ! 4 p— -1- The applicant has supplied calculations that demonstrate that the design of the wet detention ponds will function to meet District rule criteria. The proposed wet detention system as designed will attenuate the mean annual and 25-year, 24-hour storm events and will also detain the appropriate runoff volume for water quality treatment. The permit history related to this site dates back to 1986 when a stormwater permit was issued by the District for a residential subdivision known as Ravenswood Forest, Unit 1 (# 42-109-0032). The initial construction activity related to this permit involved some road clearing and the excavation of the stormwater pond. No control structure was constructed on the pond before work was terminated, and the permit expired upon 5 years of its issuance. The current applicant was required to submit a pre-development peak rate of discharge that reflects the site conditions prior to the construction activities related to the partially completed project under the 1986 permit. To reconstruct this pre- development condition, the applicant used the best available data from the old permit file and recently obtained information. The applicant has provided additional analysis to address concerns by neighboring property owners that the project will contribute to pre-existing flooding problems. The analysis conducted by the applicant was an overall watershed model that took into account onsite and offsite drainage areas that drain to the affected properties. The watershed model simulations were conducted with and without the project. The conclusion of this analysis demonstrates that the project will not increase the overall peak rate of discharge, and that the project will not contribute to a rise in flood stage or an increase in the duration of flooding on the affected downstream properties. Normal water levels are proposed to be controlled at elevation 26 in DA-1 and elevation 21 in DA-2. To prevent any adverse impact that the normal water elevation of DA-2 could have on Wetlands 4 and 5 in the southwest corner of the project, the applicant is proposing the installation of a clay cut-off wall around a portion of DA-2 to prevent the drawdown of these up-slope wetlands. The applicant's geotechnical engineer gathered site-specific data and provided a geotechnical report received on December 13, 2002 (confirmed by letter dated November 5, 2003), that demonstrates that the cut-off wall design will reduce the effective drawdown influence so that there is no adverse impact to Wetlands 4 and 5. The project outfall is to an onsite wetland. This wetland drains to a pipe that flows to a ditch between Avery and Josiah Streets. This drainage ditch flows east towards its ultimate outfall to the San Sebastian River. A closed municipal landfill is located northwest of the project site, which raised concern that the project could cause contaminated groundwater from the landfill to be drawn into the project’s stormwater system. To address this potential problem, the applicant conducted sampling and modeling and analysis. The sampling did not detect any contaminants on the project site at levels of concern, and the modeling and analysis demonstrated that any contaminants that potentially are present will not reach the stormwater system or will have broken down by the time the groundwater reaches the stormwater system. In addition, the applicant redesigned the stormwater system so that the stormwater pond closest to the landfill will be controlled at a normal water elevation that will not influence groundwater flows in the area of the pond. ENVIRONMENTAL COMMENTS: PROJECT DESCRIPTION The 47.35-acre property includes sandhill pine (FLUCFCS — 413) and pine flatwoods (FLUCFCS — 411) upland communities as well as two isolated coniferous forested wetlands (FLUCFCS -— 620), four mixed forested depressions (FLUCFCS — 630), anda man-made borrow area (FLUCFCS — 742), The on-site wetlands and other surface waters total approximately 12.82 acres. The two isolated coniferous wetlands (Wetlands 6 and 2) are 0.28 and 0.29 acres and are located along the western portion of the property. The two smallest mixed forested depressions (Wetlands 4 and 5) are * each 0.01 acre and are contiguous with a larger mixed forested depression that is located off-site to the west. The largest mixed forested depression (Wetland 1), is approximately 10.98 acres and occupies the eastern portion of the property. The fourth mixed forested depression (Wetland 3) is 0.28 acres and is contiguous with the largest depression via an upland cut roadside drainage ditch that includes a culverted roadway crossing. Finally, the man-made borrow area (Wetland 7) is approximately 0.97 acres and is located in the southwestern portion of the property. Included within the borrow area is a 0.33-acre vegetated littoral shelf. This borrow area was constructed as part of the stormwater management system approved under permit #42-109-0032. A nest is located within the central portion of Wetland 1. Following consultation with the U.S. Fish and Wildlife Service and based on the characteristics of the nest, the nest was deemed to have been constructed and is currently utilized by a pair of bald eagles (Haliaeetus leucocephala). The bald eagle has been listed as a threatened species in section 68-27.004, F.A.C. IMPACTS The applicant is required to provide reasonable assurance that a regulated activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters so as to cause adverse impacts to (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species [40C-4.301(1)(d), F.A.C and subsections 12.1.1(a) and 42.2.2, A.H.]. The applicant is also required to provide reasonable assurance that the construction, alteration, operation, maintenance, removal and abandonment of a system located in, on or over wetlands or other surface waters will not be contrary to the public interest as determined by balancing the criteria set forth in subsections 12.2.3 through 12.2.3.7 of the Applicant’s Handbook: Management and Storage of Surface Waters. Specifically, section 12.2.3(b) requires the weighing of whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats (40C-4.302(1)(a)2., F.A.C.), and section 12.2.3(g) requires the consideration of the current condition and relative value of functions performed by the wetlands and other surface waters affected by the proposed regulated activity. The applicant has proposed to temporarily impact approximately 0.18 acres of mixed forested wetlands (Wetland 1) during installation of the water and sewer utility services for the proposed development. The impact will include clearing, excavating a trench, installing the utility line, backfilling the trench, and restoring the original grade of the cleared area. The applicant has proposed to fill the 0.28- and 0.29-acre isolated depressions (Wetlands 6 and 2) during construction of residential lots. Mitigation is not required for these impacts because they are isolated wetlands of less than 0.5-acre that meet the requirements of section 12.2.2.1 of the Applicant's Handbook (A.H.). In addition, the applicant has proposed to fill 0.28 acre of a low quality mixed forested area (Wetland 3) during construction of three residential home lots and an interior roadway. The applicant has also proposed to fill 0.01 acre of a mixed forested area (Wetland 4) during construction of two residential lots. The applicant does not propose any impacts to Wetland 5. The applicant has proposed to fill approximately half (0.45 acre) of the man-made borrow area (Wetland 7) during construction of residential lots and to incorporate the remainder into proposed Detention Pond 1. The value of functions provided to wildlife by the wetlands to be impacted was determined pursuant to section 12.2.2.3, A.H. ELIMINATION AND REDUCTION The applicant evaluated practicable design alternatives to eliminate the 0.18 acre of temporary impact to Wetland 1 due to utility installation. The analysis demonstrated that installing the proposed utility services around the project site would cost approximately $80,000 to $100,000. The current design includes encasing the utility lines in concrete to prevent the necessity for fill to be placed within the wetland over the proposed lines. The applicant proposes to replant and monitor this impact area. The applicant was not required to implement practicable design modifications to eliminate or reduce impacts to Wetlands 2 and 6. Subsection 12.2.1.1, A.H., only requires elimination and reduction of impacts if the proposed impacts do not meet the criteria of subsections 12.2.2 through 12.2.3.7, A.H. Compliance with subsections 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8 is not required for isolated wetlands less than one-half acre in size unless certain specialized indicia are met. Wetlands 2 and 6 are isolated wetlands less than on-half acre in size and they do not meet the specified indicia in 12.2.2.1. Accordingly, the applicant does not need to comply with the elimination and reduction criteria of section 12.2.1, A.H. for these wetlands. The applicant was not required to implement practicable design modifications to eliminate or reduce impacts to Wetlands 3 and 7 pursuant to section 12.2.1.2(a), A.H. The ecological value of the functions provided by these wetlands is low according to an assessment of the value of functions provided to fish and wildlife by the impact area pursuant to section 12.2.2.3, A.H. The proposed mitigation provides greater long-term ecological value than these wetlands following assessment of the value of functions provided to fish and wildlife by the mitigation area pursuant to section 12.2.2.3, A.H. The overall condition of the proposed mitigation area is good in that the existing hydrology of the wetland does not appear to be adversely altered, the vegetative composition of the wetlands and uplands is relatively mature and diverse, and the wetland provides water quality functions by treating the existing drainage from the roadside ditch along Ravenswood Drive. The mitigation area is hydrologically contiguous with the San Sebastian River via culverts and upland cut drainage ditches, but provides water quality benefits to downstream wetlands. The mitigation area is not generally a unique community in northeast Florida or in an optimal location, but it does provide a large natural area within a landscape of development. Because of the species diversity and various hydrologic regimes, the mitigation area provides habitat for a variety of wildlife species. The applicant evaluated a practicable design alternative to reduce or eliminate impacts to Wetland 4 by exploring the elimination of three residential lots. Leaving the small on- site portion of the wetland in post-development would trigger St. Johns County regulations that require that wetlands have an undisturbed upland buffer of 25 feet, an: additional building setback of 25 feet, and a roadway setback of 20 feet. The lots are 100 feet in depth. If the wetland were not impacted and the county setbacks are added, there would be approximately 22 feet left in which to construct a home, which renders the area undevelopable. If the on-site portion of Wetland 4 is impacted, the setback requirements would allow for construction of a home within 30 feet, which renders the lots buildable. The Planned Unit Development (PUD) approved by St. Johns County prohibits the applicant from impacting the 0.01 acres of wetland located in the rear of the 10-foot setback. Therefore, the wetland will most likely not be impacted in order to comply with the PUD, but the impact must be permitted in order to develop three lots. The cost associated with elimination of the three lots was determined to be $47, 089, which is an overall loss of approximately 7.4% of the total profit. Approximately half of the proposed impact area is an existing trail road that is void of vegetation and appears to be utilized regularly by vehicles. Mitigation is being proposed for this impact, even though the likelihood of the actual impact occurring is low. Since the value of functions provided by this very small portion of the overall wetland system are moderate, and the remainder of the wetland system, which provides greater value of functions, will remain in its current condition in post-development, the cost associated with elimination of the three lots outweighs the environmental benefit that would be achieved by avoiding this impact. The applicant has avoided impacts to Wetland 5. SECONDARY IMPACTS The applicant is required to provide reasonable assurance a regulated activity will not cause adverse secondary impacts to the water resources [40C-4.301(1)(f), F.A.C_]. Implementation of this portion of the rule criteria is detailed in subsection 12.2.7 (a) of the Applicant's Handbook and states that secondary impacts to the habitat functions of wetlands associated with adjacent upland activities will not be considered adverse if buffers are provided with a minimum width of 15° and an average width of 25’ 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 applicant has provided a graphic that indicates the location of the eagle nest as well as a Bald Eagle Management Plan that will be implemented during construction associated with the proposed project. The District has received written comments from U.S. Fish and Wildlife Service (USFWS) in coordination with the Florida Fish and Wildlife Conservation Commission (FFWCC). FFWCC assigned the nest number SJ- 021. The nest has been deemed active and currently utilized by a pair of bald eagles. Portions of the proposed project will be constructed within the primary protection zone (0 feet to 750 feet from the nest tree) as well as the secondary protection zone (750 feet to 1,500 feet from the nest tree). Approximately 39 residential lots, underground utility lines, portions of the interior roadway system, and portions of the stormwater management system are proposed to be constructed within the primary protection zone. The remainder of the project site, except for three residential lots, a small portion of roadway, and the active recreation area, is proposed to be constructed within the secondary protection zone. To provide reasonable assurance that the proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters and to demonstrate that the proposed construction, operation and maintenance of the system will not be contrary to the public interest, the applicant has proposed to implement the Bald Eagle Management Plan received by the District on January 20, 2004. The management plan includes specific restrictions concerning the proposed development so as to ensure the bald eagles will not be adversely impacted. The USFWS, in coordination with FFWCC, has stated that if: 1) the applicant preserves the nest tree in conjunction with 15.7 acres of surrounding wetlands and uplands along the eastern project boundary, 2) the utility lines through the wetlands are installed during the non-nesting season, 3) all site work and construction of the infrastructure and the exterior of the homes is during the non-nesting season (within the primary zone), and 4) the Bald Eagle Monitoring Guidelines (September 2002) will be utilized when conducting any site work, infrastructure installation and exterior home construction in the secondary protection zone during the nesting season, then the proposed project is not likely to adversely affect this pair of eagles at nest SJ-021. Implementation of the Bald Eagle Management Plan provides reasonable assurance that the regulated activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and has demonstrated that the proposed construction, operation and maintenance of the system will not be contrary to the public interest relative to Chapter 40C-4.302(a)2. and 7., F.A.C. tn addition to implementing the Bald Eagle Management Plan, the applicant also proposes to plant upland plants within the uplands (25 feet in width), adjacent to the wetlands within the western portion of the utility easement and within the western portion of the upland buffer (25 feet in width) adjacent to the wetland restoration/enhancement area. The applicant also proposes to install a 6’ chain link fence that includes a locked gate, from tree to tree uphill of the wetland line along the eastern portion of the utility easement. Installation of these plantings and fence will help preclude utilization of the utility easement and wetland restoration/enhancement areas for ingress and egress by residents. The applicant is unable to provide upland buffers between the proposed development and remaining off-site wetlands adjacent to Wetland 4. At Wetland 5, the applicant has proposed to preserve an average 25-foot upland buffer between the proposed development and on-site wetlands. Anticipated adverse secondary impacts by the proposed use of the project include human activity, such as proximity to humans, proximity of domestic pets, residential lighting, and noise. To offset adverse secondary impacts to Wetland 4, the applicant has proposed additional mitigation. Wetland 5 is not being utilized by listed species for nesting, denning, or critically important feeding habitat. Therefore the upland buffers and proposed mitigation will prevent adverse secondary impacts. The applicant has demonstrated that the proposed project and reasonably expected uses will not cause adverse impacts to significant historical and archaeological resources. The proposed project does not necessitate future impacts to wetlands or other surface waters. Because Wetlands 2, 3, 6, and 7 will not be present in post-development, the applicant is not required to comply with section 12.2.7, A.H., for these wetlands. MITIGATION As compensation for proposed adverse direct and secondary impacts to the value of functions provided to wildlife by 1.44 acres of wetlands (Wetlands 1, 3, 4, and 7), the applicant has proposed to preserve 10.59 acres of on-site wetlands in conjunction with 3.99 acres of upland preservation and 1 acre of upland buffer between the proposed development and Wetlands 1 and 5. The applicant also proposes to restore/enhance 0.12-acre of the existing trail road that traverses Wetland 1. Restoration/enhancement includes removing several areas of fill, replanting with wetland species, and monitoring for five years. Finally, the applicant has also proposed to replant the temporary impact area at the proposed utility crossing with wetland species and monitor the success of vegetative recruitment after installation of the utility lines. The wetland preservation areas, wetland restoration/enhancement areas, upland preservation areas, and upland buffers will be encumbered by a conservation easement that is consistent with section 704.06, F.S. Preservation of the remaining wetlands will allow these areas to mature, thus providing nesting and roosting habitat lost by impacts to Wetlands 3, 4 and 7, and the temporary disturbance at Wetland 1. Preservation will also preclude future impacts to the on-site wetlands that provide greater value of functions to fish and wildlife. Preservation of the upland islands within Wetland 1 will provide continued habitat diversity and preclude future development within the wetland as well as immediately adjacent to the wetland area. Preservation of the upland buffers will preclude adverse secondary impacts that the use of the project may have on the remaining wetland areas. Finally, restoration/enhancement of the existing trail road through Wetland 1 will provide additional wetland habitat for breeding, reproduction, and foraging for wildlife, future roosting and nesting habitat, and water quality and flood storage benefits. The mitigation plan offsets anticipated direct and secondary impacts to the value of functions provided to fish and wildlife. Because Wetlands 2 and 6 meet the criteria of section 12.2.2.1, A.H., the applicant does not need to comply with sections 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8, A.H., and therefore does not need to provide mitigation for those impacts. CUMULATIVE IMPACTS The applicant is required to provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 12.2.8 through 12.2.8.2 of the Applicant’s Handbook [40C- oe 4.302(1)(b), F.A.C.]. If an applicant proposes to mitigate these adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, then the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. As previously stated, the District issued stormwater permit #42-109-0032 in 1986 for construction of Ravenswood Forest, Unit 1 on the western portion of the existing project site. During a field visit in 1989, District staff identified activity occurring with the wetland area located off-site to the east (currently identified as Wetland 1). The activity included clearing and dredging as well as deposition of what appeared to be construction debris within the wetland area. District staff notified the permittee of permit #42-109-0032 of the violation and the necessity to obtain a Wetland Resource Management Permit in 1989 because the work had occurred in Waters of the State. At the time of the violation, compliance with Chapter 62-312, F.A.C., was delegated to the Florida Department of Environmental Protection (then the Florida Department of Environmental Regulation). Therefore, the District relinquished compliance authority to FDEP. FDEP issued a consent order requiring corrective actions. Pursuant to a February 1991 field inspection by FDEP staff, the permittee of permit #42-109-0032 had completed all corrective actions, and the case was closed. In addition, the permittee of permit #42-109-0032 is a different entity from the applicant for permit #40-109-81153-1. Thus, there are no outstanding violations to be considered under 40C-4.302(2), F.A.C. Conditions for Application Number 40-109-81153-1: ERP General Conditions by Rule (October 03, 1995): 1, 2, 3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 ERP/MSSW/Stormwater Special Conditions (November 09, 1995): 1,10, 11, 12, 13, 14, 15, 17, 18, 19, 20 . The proposed wetland impacts must be performed as indicated on Figure 4 received by the District on February 17, 2003. . The proposed mitigation plan received by the District on February 17, 2003 is incorporated as a condition of this permit. . This permit does not authorize any work, including clearing or stockpiling, outside of the 30-foot utility easement located within the wetlands as indicated on the construction plans received by the District on January 9, 2003. Any work beyond the 30-foot easement will require a modification of this permit. . Silt fence/haybales must be installed on either side of the 30-foot utility easement within the wetlands to designate the limits of construction and help prevent any violations in water quality standards within the adjacent wetlands. . Before installing the outfall pipe, the permittee must remove the upper 1 foot of soil within the 30-foot utility easement and stock pile it in an adjacent upland site. Immediately after installation of the outfall pipe, this soil must be installed in the upper 1 foot of the utility easement area so as to return the entire utility easement area to the pre-construction elevations. Immediately after completion of all work in the utility easement within the wetland, the permittee must contact District staff for review and approval of this work . The proposed surface water management system must be constructed pursuant to the plans and-catelatiers received by the District on November 5, 2003, as amended by sheets 8 and 15 of the plans received on December10, 2003. . The stormwater management system shall be inspected by the operation and maintenance entity once within two years after completion of construction and every two years thereafter to insure that the system is functioning as designed and permitted. If a required inspection reveals that the system is not functioning as designed and permitted, then within 14 days of the inspection the entity shall submit an Exceptions Report on form number 40C-42.900(6), Exceptions Report for Stormwater Systems Out of Compliance. The operation and maintenance entity must maintain a record of the required inspection, including the date of the inspection, the name, address and telephone number of the inspector, and whether the system was functioning as designed and permitted, and make such record available for inspection upon request by the District during normal business hours. . All species to be planted within the restoration/enhancement area will be of nursery stock and in good health. Tree species will be a minimum of 5 feet in height and planted on 10-foot centers throughout the restoration/enhancement area. 9. A Professional Engineer must act as quality control officer for the installation of | the cut-off walls along portions of proposed wet detention pond DA-2. Ata minimum, the Professional Engineer must: ¢ Certify that the clay cut-off wall exhibits an in-place permeability of no more than 1 x 10-6 cm/sec and a minimum thickness of 1 foot, and ¢ Certify that the clay cut-off wall is free of roots, rocks or debris, and e Certify that the liner has been constructed in accordance with the specification on the plans received by the District on December 10, 2003. 10. Prior to construction, and within 30 days of permit issuance, the permittee shall submit a site-specific dewatering plan to the District for review and written approval. Construction shall not commence until the permittee receives written . approval from the District. Copies of the dewatering plan must be provided to the contractor and kept on-site during construction. . The Bald Eagle Management Plan received by the District on January 20, 2004 and as amended by the other conditions of this permit, is incorporated as a condition of this permit and must be implemented prior to beginning any construction associated with the proposed project. 1 = T 12. All correspondence referenced in the Bald Eagle Management Plan must be forwarded to the Jacksonville Service Center of the St. Johns River Water Management District. The permittee must receive written correspondence from, the District prior to conducting any of the activities that require District approval within the Bald Eagle Management Plan. 13.In conjunction with the planting of the wetland restoration/enhancement areas and the replanting of the utility easement, the permittee must plant wax myrtle (Myrica cerifera) on three foot centers within the uplands (25 feet in width) adjacent to the wetlands within the western portion of the utility easement and within the western portion of the upland buffer (25 feet in width) adjacent to the wetland restoration/enhancement area. The plants will be a minimum of 5 feet in height and of good health. The permittee will incorporate these planting areas into the monitoring plan received by the District on February 17, 2003 to ensure success. 14. Immediately following installation of the utility lines, replanting of the utility easement and the planting of the wetland restoration/enhancement areas, the permittee must install a 6’ chain link fence that includes a locked gate, from tree to tree uphill of the wetland line along the eastern portion of the utility easement. The exact location and extent of the fence must be field verified by the District prior to installation. -10- Reviewers: Christine Wentzel Louis Donnangelo -11- 9. A Professional Engineer must act as quality control officer for the installation of the cut- off walls along portions of proposed wet detention pond DA-2. At a minimum, the Professional Engineer must: e Perform permeability tests of the soil layer to which the clay cut-off wall is to be keyed into a minimum of every 50 feet along the entire length of the clay cut-off wall; e Certify that the soil layer into which the clay-cut off wall is continuous along the entire length of the clay cut-off wall; has a minimum thickness of 2 feet; and a permeability of no more than 0.052 feet per day. e Certify that the clay cut-off wall exhibits an in-place permeability of no more than 1 x 10-6 cm/sec and a minimum thickness of 1 foot;-_and e Certify that the clay cut-off wall is free of roots; rocks and debris; and e Certify that the clay cut-off wall has been constructed in accordance with the specifications on the plans received by the District on December 10, 2003. If the professional engineer is unable to satisfy any of the above requirements then a t, clay embankment liner shall be constructed along the bottom of pond DA-2 within the @aslern area encompassed By Connecting the-western ends of the dashed lines representing the cut-off wall on sheet 8 of 17 received by the District on December 10, 2003. A professional engineer must act as quality control officer for the installation of the clay embankment liner. At a minimum, the professional engineer must: e Certify that the clay embankment liner is continuous over the area described , above e Certify that the clay liner has been properly installed and compacted so that it exhibits an in-place permeability of no more than 1 x 10-6 cm/sec and a minimum thickness of 2 feet, and e Certify that the clay embankment liner is free of roots, rocks and debris: and e Certify that a minimum of 12 inches of granular soil material has been placed over the top of the clay embankment liner; and e Certify that the clay embankment liner has been constructed in accordance with the specifications listed above. All certifications produced by the professional engineer along with all supporting test data must be submitted to the District for review within 30 days of completion of the clay cut- off wall or clay embankment liner. sTRWMD Ex. 10 te

Docket for Case No: 02-001497

Orders for Case No: 02-001497