STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLOTTE COUNTY,
Petitioner,
and
GEORGE W. MULLINS, JR.; GEORGENE MULLINS HENDERSON; and MICHAEL GRAHAM MULLINS,
Intervenors,
vs.
IMC-PHOSPHATES COMPANY and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
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) Case No. 02-4134
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RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was held in Bradenton, Florida, on April 14-18, 22-25, 28-30 and May 1, 5, and 6, 2003, before J. Lawrence Johnston, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner Charlotte County:
Edward P. de la Parte, Jr., Esquire Vivian Arenas, Esquire
David M. Caldevilla, Esquire Marty Young, Esquire
de la Parte & Gilbert, P.A. Post Office Box 2350
Tampa, Florida 33601-2350
For Respondent IMC Phosphates Company:
Roger W. Sims, Esquire Rory C. Ryan, Esquire Robert L. Rhodes, Esquire Susan L. Stephens, Esquire Holland & Knight LLP
200 South Orange Avenue Suite 2600
Orlando, Florida 32801-3453
Patricia A. Petruff, Esquire Dye, Deitrich, Prather, Petruff
& St. Paul, P.L. Post Office Box 9480
Bradenton, Florida 34206-9480
For Respondent Department of Environmental Protection:
Francine M. Ffolkes, Esquire Office of General Counsel
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
For Intervenors George W. Mullins, Jr., Georgene Mullins Henderson and Michael Graham Mullins:
Edward P. de la Parte, Jr., Esquire Vivian Arenas, Esquire
David M. Caldevilla, Esquire de la Parte & Gilbert, P.A. Post Office Box 2350
Tampa, Florida 33601-2350 STATEMENT OF THE ISSUES
The issues are whether the Department of Environmental Protection (DEP) should: grant the application filed by IMC Phosphates Company (IMC) for modification of the approved Conceptual Reclamation Plan (CRP) for the Four Corners/Lonesome Mine, IMC-FCL-CPD; and issue a Consolidated Environmental Resource/Wetland Resource Permit No. 0155875-004 (Draft Permit)
to mine phosphate and reclaim land on the Altman Tract in the northeastern corner of Manatee County.
PRELIMINARY STATEMENT
On October 5, 2000, IMC filed an application for an Environmental Resource Permit (ERP) to mine and reclaim the Altman Tract (Tract). After review of the original application, DEP requested, received, and reviewed substantial additional information.
On April 9, 2002, IMC filed an application seeking approval of a modification to the approved CRP for the Four Corners/ Lonesome Mine in Polk, Hillsborough, and Manatee Counties to incorporate the reclamation plan proposed for the Altman Tract.
On May 30, 2002, DEP gave notice of its intent to issue the Draft Permit and to approve the modification to the CRP (Modified
CRP).
After DEP extended the time for filing, Charlotte County
(County) and the Peace River/Manasota Regional Water Supply Authority (Authority) timely petitioned for formal administrative hearings challenging the Draft Permit and the Modified CRP on October 3, 2002. The petitions were referred to the Division of Administrative Hearings (DOAH) where they were consolidated on October 31, 2002. The Authority voluntarily dismissed its petition with prejudice on March 11, 2003. On March 20, 2003, George W. Mullins, Jr., Georgene Mullins Henderson, and Michael
Graham Mullins (the Mullins Family) petitioned to intervene in this proceeding, asserting a fractional interest in mineral rights beneath portions of the Altman Tract. The Mullins Family was granted leave to intervene on March 24, 2003.
The final hearing was held on April 14-18, 22-25, 28-30; and on May 1, 5, and 6, 2003. Prior to the hearing, the parties filed a joint pre-hearing stipulation as to the authenticity of all documentary and demonstrative exhibits, among other things.
At the commencement of the hearing, the parties presented arguments on various pending motions. IMC's motion to dismiss the Mullins Family's petition to intervene or, in the alternative, to strike from the petition both issues requiring determination of the Mullins Family's property ownership and attendant mineral interests, and issues not previously raised by Charlotte County, was taken under advisement and then denied on April 15, 2003. The County moved to exclude evidence concerning reclamation sites that were not identified in IMC's responses to the County's second set of interrogatories and/or to which the County was not granted access. That motion was denied. The County's motion to exclude evidence concerning economic benefits of the phosphate industry was granted in part, such that IMC was not permitted to introduce evidence concerning the economic and social benefits of the phosphate industry in general, but was allowed to introduce evidence as to the economic value of the
phosphate ore as it related to the issue of financial responsibility and IMC's ability to carry out the proposed reclamation plan.
During the hearing, two additional motions submitted by the County were addressed. The County's motion to strike the testimony of two IMC rebuttal witnesses as untimely was denied. The County's motion to exclude evidence concerning a certain scrub jay model was initially taken under advisement but ultimately denied.
IMC presented the following witnesses in its case in chief: Carlos J. Frey, P.E.; Robert H. Kinsey; Gary Uebelhoer, M.B.A.; Greg Williams; John Garlanger, P.E., Ph.D.; Quamrul Ahsan, P.E., Ph.D.; J. Steve Godley; Andre F. Clewell, Ph.D.; and Douglas J. Durbin, Ph.D. IMC's Exhibits 1 through 200 were admitted into evidence. The following IMC witnesses testified in rebuttal: John Garlanger, P.E. Ph.D and Douglas J. Durbin, Ph.D. DEP presented the following witnesses: Orlando Rivera, Stephen Partney, P.E., and Janet Llewellyn. DEP's Exhibits 1 and 2 were admitted into evidence. The following Department witnesses testified in rebuttal: Janet Llewellyn and Stephen Partney, P.E. Charlotte County presented the following witnesses in its case in chief: Anthony Janicki, Ph.D.; Jeremy Craft; Thomas Fraser, Ph.D.; Phillip R. Davis; Kevin Erwin; Edwin Copeland; and Elliot
L. Kampert, AICP. Charlotte County's Exhibits 1 through 157, and
159 through 270 were admitted into evidence. The Mullins Family presented the following witness: George W. Mullins, Jr.
At the conclusion of the hearing, the parties were given
30 days from the filing of the Transcript for filing proposed recommended orders, closing arguments, and memoranda of law. The Transcript (3,593 pages in 26 volumes) was filed on May 8, 2003. DEP's unopposed motion to extend the time for post-hearing submissions until June 18, 2003, was granted. All post-hearing submissions have been considered in preparation of this Recommended Order.
In this Recommended Order, references to the Transcript will be signified by the letter "T" and the page number; references to exhibits will be signified by "Ex.", preceded by IMC, DEP, or Co. Unless otherwise indicated, statutory citations are to the 2002 codification of the Florida Statutes, and rule citations are to the current codification of the Florida Administrative Code.
However, citations to Chapter 40D Rules and Basis of Review (BOR) provisions refer to the Southwest Florida Water Management District (SWFWMD) Rules in effect in 1995 and the 1995 SWFWMD BOR, which are incorporated in DEP's Rule 62-330.200(3).
FINDINGS OF FACT
The Parties
Charlotte County is a political subdivision of the State of Florida pursuant to Article VIII, Section 1 of the Florida Constitution.
Charlotte County's central dominating feature is the Charlotte Harbor Estuary. The Harbor is its major tourist attraction and is essential for its economy and quality of life. The Harbor has a recreational value of $1.8 billion and a total value of $6 billion to the local economy. The County has taken steps to protect Charlotte Harbor. Its comprehensive plan contains policies protecting the Harbor. It has spent $4 million to purchase lands along the Harbor for environmental preservation and passive recreation, and plans to spend another
$79 million for the same purpose. The County has enacted septic tank regulations to protect the Harbor, which are stricter than state regulations, and is in the process of replacing septic tanks with a central sewer system. The County spent $100 million in the early 1990s to acquire a private water and sewer utility serving its citizens, and tens of millions of dollars expanding the sewer system, and has budgeted about $60 million to further expand its sewer system. The County has also taken legal action to protect the quantity and timing of flow and
water quality in the Peace River and Charlotte Harbor, and was found to have standing and prevailed in those legal proceedings.
The County owns and operates a water utility system and is a founding member of the Authority, a regional water provider. The County's water system supplies potable water to 109,000 persons, and is expected to supply 140,000 persons within the next 20 years. Now and for the foreseeable future, the County obtains all of its potable water from the Authority, and its sole source of water is the Peace River.
DEP is an executive agency of the State of Florida under Article IV, Section 6, of the Florida Constitution. DEP administers the Environmental Resource Permit program pursuant to Chapter 373, Florida Statutes, for various activities, including phosphate mining. DEP also administers the Phosphate Land Reclamation Program pursuant to Chapter 378, Florida Statutes, and Chapter 62C-16, Florida Administrative Code.
IMC is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings.
Intervenors, George W. Mullins, Jr., Georgene Mullins Henderson, and Michael Graham Mullins, are the owners of a fractional mineral interest underlying portions of Sections 13,
14 and 24, Township 33 South, Range 22 East, Manatee County, Florida, that make up approximately the southern half the Altman
Tract. Their mineral rights extend from the ground surface down, subject to IMC's right to mine phosphate and other sedimentary materials in the first 150 feet below the ground surface. This legal interest entitles the Mullins Family to access those lands at any time for purposes of mineral exploration and mining. The Mullins Family has not consented to IMC's proposed mining and reclamation.
Required DEP Permits/Approvals, IMC Applications, Notices, and DEP Review
Chapter 373, Florida Statutes, requires that persons seeking to carry out construction activities in or seeking to alter certain waters or wetlands must obtain an ERP. By law and interagency agreement, ERPs for proposed phosphate mining operations are issued by DEP and are processed and evaluated by that agency's Bureau of Mine Reclamation.
Chapter 378, Florida Statutes, requires that persons mining phosphate rock reclaim the land pursuant to a CRP approved by DEP.
Under Section 373.414(15), Florida Statutes, activities associated with phosphate mining operations included in a CRP application submitted prior to July 1, 1996, "shall continue to be reviewed under" the previous statutory scheme and rules governing wetland resource permits (WRPs), instead of current ERP statutes and rules.
IMC filed an application for an ERP for the entire Altman Tract on October 5, 2000. (IMC Ex. 3). The application complied with the information requirements contained in Section 373.413(2), Florida Statutes, and Rule 40D-4.101(1).
The portion of the Altman Tract lying in Section 1, Township 33 South, Range 22 East, was included in IMC's previous CRP for the Four Corners Mine (IMC-FCL-CPC), application for which was submitted prior to July 1, 1996. For that reason, it "shall continue to be reviewed under" the statutory scheme and rules governing WRPs. No separate WRP application form was submitted for the Section 1 area because the entire Tract was addressed in the ERP application filed by IMC; and no separate WRP application filing fee was demanded. IMC and DEP take the position that this procedure was authorized by Section 373.1131, Florida Statutes.
There was no evidence that either IMC or DEP published notice that DEP had received the ERP application.
DEP reviewed the ERP application and issued a series of requests for additional information to which IMC responded on October 19, 2000, December 29, 2000, February 11 and 15, 2001, and March 6, 2001. Thereafter, minor revisions to the application suggested by DEP were submitted by IMC.
On April 9, 2002, IMC filed an application to modify the existing CRP for the Four Corners/Lonesome Mine to apply to
the entire Altman Tract, not just Section 1. (IMC Ex. 14). Notice of DEP's receipt of this application was published in the Bradenton Herald, a newspaper of general circulation in Manatee County, on April 19, 2002. (IMC Ex. 15).
On May 30, 2002, DEP filed its Notice of Intent to Issue a Consolidated ERP/WRP (the Draft Permit) and also gave notice of its intent to approve the application to modify the Four Corners CRP. On June 4, 2002, IMC published notice of both of these actions in the Bradenton Herald. (IMC Ex. 17).
DEP's Notice of Intent ("NOI") was accompanied by the Draft Permit. (IMC Ex. 12). The Draft Permit would authorize IMC to mine or disturb 683.6 acres of wetlands and water bodies for phosphate mining and associated activities. Approximately 1,534.9 acres of uplands would also be mined or disturbed by phosphate mining activities. After reclamation, the Tract would contain approximately 788.4 acres of wetlands provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of wetlands would be reclaimed as required by the Corps of Engineers for additional mitigation. The Draft Permit also contains numerous specific conditions requiring special mitigation efforts, defining mitigation success criteria, and providing monitoring and reporting requirements.
Overview of the Peace River Basin and Phosphate Mining
The Peace River Basin is nearly 2,500 square miles in size, stretching from the high sandy ridges in central Florida to Charlotte Harbor. The basin is dominated by the Polk Upland to the north and the DeSoto Plain to the south.
The Peace River flows from its source in Polk County south and southwesterly through Hardee, DeSoto, and Charlotte Counties to Charlotte Harbor. The Peace River is fed by six primary tributaries, one of which is Horse Creek.
Phosphate rock has been mined in the Peace River Basin for decades. In west central Florida, phosphate is mined from a "matrix" consisting of one-third phosphate rock, one-third sand, and one-third clay. (The average thickness of the matrix on the Altman Tract is approximately 16 feet.) The matrix layer is buried under a layer of sandy soils referred to as the "overburden." (The overburden thickness on the Altman Tract is approximately twenty-seven feet.) Topsoil and vegetation cover the overburden. Mining the phosphate rock requires removal of the overlying vegetation, topsoil, and overburden. As a result, phosphate mining in this area is accomplished through utter destruction of the local natural environment from ground surface down to a depth of approximately 50 feet. Other mining activities include transportation of the matrix to a
"beneficiation plant," where the phosphate rock, sand, and clay are physically separated. The phosphate rock is temporarily stored and then transported for additional processing at facilities required to convert it to fertilizer. Byproducts of the mining process included large quantities of sand and clay.
Early mining practices, like most early industrial, commercial, residential and other development activities of man, were insensitive to environmental impacts. Water quality was adversely affected, water flow declined, and wildlife and fish and their habitat was lost. Other human activities in the Peace River over the years added to the harm caused to the environment by early phosphate mining.
In the past 30 years, Florida has implemented various environmental regulations, and mining practices have changed. These changes have reduced, but have not eliminated, the impacts of phosphate mining on the environment.
Modern mining still has a devastating impact on the local natural environment. Large electrically-powered draglines are used to remove the overburden, topsoil, and vegetation to expose the phosphate-bearing matrix. These same draglines then extract the matrix and place it in depressions created at the mine sites, which are called "wells" or "pits." The matrix is mixed with water in the depressions to form a slurry, which is conveyed, hydraulically to the beneficiation plant. But efforts
have been made to reduce water quantity and water quality impacts downstream during mining, primarily through use of ditch and berm recharge systems. See Findings 65, 80-86, supra.
Activities at the beneficiation plant also were regulated to reduce environmental impacts.
In addition, since July 1, 1975, phosphate mining companies have been required to reclaim all lands mined. Mandatory reclamation attempted to further reduce the long-term impacts of modern phosphate mining on water quantity, water quality, and wildlife and fish and their habitat.
As environmental regulations became stricter, it became increasingly difficult to mine for phosphate in Florida, even using modern mining techniques and mandatory reclamation, as it was being implemented. In 1986, the Florida Legislature enacted the "Phosphate Land Reclamation Act." In it, the Legislature found:
Florida is endowed with varied natural resources that provide recreational, environmental, and economic benefit to the people of this state. The extraction of phosphate is important to the continued economic well-being of the state and to the needs of society. While it is not possible to extract minerals without disturbing the surface areas and producing waste materials, mining is a temporary land use. Therefore, it is the intent of the Legislature that mined lands be reclaimed to a beneficial use in a timely manner and in a manner which recognizes the diversity among mines, mining
operations, and types of lands which are mined.
Section 378.202(1), Florida Statutes. Based on this legislative finding and policy decision, phosphate mining was permitted, so long as it complied with applicable statutes and rules. DEP was directed to develop rules "to simplify and coordinate regulation" and to enter into memoranda of understanding "to eliminate duplication, to simplify the processing of reclamation applications, and to maximize the effectiveness of the regulatory process." Section 378.202(2), Florida Statutes.
Among other things, reclamation rules were to "require the return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining." Section 378.207(1), Florida Statutes. Restoration was defined by statute to mean "the recontouring and revegetation of lands in a manner, consistent with the criteria and standards established under this part, which will maintain or improve the water quality and function of the biological systems present at the site prior to mining." Section 378.203(10), Florida Statutes.
Since 1962 long-term average rainfall in the Peace River Basin has declined. Based on data recorded at stations in Bartow, Wauchula, and Arcadia, the annual average rainfall was
55.48 inches from 1933 to 1962. From 1963 to 2001, the annual
average rainfall was 50.61 inches, or a 4.87-inch decline in annual average rainfall between the two periods.
Lower rainfall, together with phosphate mining and other anthropogenic factors, has resulted in a decline in stream flow in the Peace River since 1962. From 1963 to 2001, stream flow at the Arcadia Gauging Station has declined by 458 cubic feet per second (cfs), or approximately 300 million gallons per day (mgd). This decline is approximately the amount of water consumed by 1.5 to 2 million people.
There has been a decline in the number and distribution of fish species in the Peace River in the last 50 years or so. Dr. Fraser, Charlotte County's expert ichthyologist, noticed that the number and distribution of fish species in the modern Peace River is similar to the Alafia River and the Everglades. This was surprising to him. The Alafia River is a small watershed that would not be expected to have as many fish species as the much larger Peace River and the Everglades, which is a flat, low flowing system, and cannot be expected to have the abundance of fish habitat provided by the 105-mile long Peace River. Dr. Fraser would have expected the number and distribution of fish species in the Peace River to be more like the Kissimmee and Withlacoochee Rivers. This prompted him to research the number and distribution of fish species in the historical Peace River for comparison with the modern Peace
River. He found that the historical Peace River had 45-48 fish species in the Upper Basin and 32-35 fish species in the Lower Basin (similar to the Kissimmee and Withlacoochee Rivers); in comparison, the modern Peace River has 23-27 fish species in the Upper Basin and 32-39 fish species in the Lower Basin. In other words, Dr. Fraser found that the modern Peace River lacks approximately 20 fish species that had once been abundant in the river system 50 or so years ago.
In 1969, Ware and Fish produced a report documenting a 25-mile segment of the Upper Peace River as having riffles, and deep pools, relatively fast moving water and significant beds of submerged aquatic vegetation called tape grass. However, a 2002 report published by Southwest Florida Water Management District (SWFWMD) staff in connection with proposed minimum flows did not find any tape grass in the system and documented that flow in this portion of the river is sluggish, with parts drying out seasonally. Dr. Fraser believes that the decline in freshwater flow is the primary cause of the reduction in the number of fish species found in the Peace River.
Charlotte Harbor is the estuary formed by the confluence of the Peace and Myakka Rivers. It provides critical habitat for a wide variety of wildlife, including endangered and threatened species and species of special concern. It has been designated an Outstanding Florida Water and an Aquatic Preserve
by the State of Florida. See Florida Administrative Code Rules 18-20.004 and 62-302.700. In 1995, it became the sixth estuary to be selected an Estuary of National Significance by the U.S. Environmental Protection Agency ("EPA").
The major freshwater input to Charlotte Harbor is the Peace River. The salinity dynamics of the Lower Peace River and Charlotte Harbor are affected by flow in the Peace River. According to Dr. Ahsan, who was called by IMC and accepted as an expert in the fields of environmental hydrodynamics and estuarine physics, a reduction of 20 percent or more in the flow of the Peace River will cause a shift upstream of the salinity distribution in Charlotte Harbor. Since flow in the Peace River has declined by more than 20 percent since 1963, it would follow that salinity has shifted upstream since 1963.
It is not clear exactly how much of the decline in stream flow in the Peace River is from anthropogenic factors, including phosphate mining. Anthropogenic factors probably do not account for as much as 75 percent of the decline, as suggested by Charlotte County's expert hydrologist, Mr. Phil Davis. Several studies would support the testimony of IMC's expert hydrologist, Dr. John Garlanger, who believes that more like 11-12 percent of the decline should be attributed to anthropogenic factors and that 10-20 percent of the decline from those factors can be attributed to phosphate mining.
The County presented evidence that DEP thinks more study is needed to better quantify the impact of individual anthropogenic factors, including phosphate mining, on the decline in stream flow in the Peace River. But DEP called no witnesses to give opinion testimony during the hearing in this case on this or any other issue in the case.
In comparison to the Peace River, Horse Creek is relatively unimpacted. It not only has good water quality, it also has fast-flowing water, and it provides a refuge for fish species that are no longer found in abundant numbers in the Peace River. It has an extensive drainage system that is almost
45 miles long. From the Altman Tract, Horse Creek flows south until it joins the Peace River approximately 41 miles downstream from the Altman Tract boundary. The Peace River then empties into Charlotte Harbor approximately 51 miles from the Tract.
Historic and Current Conditions at Altman Tract
Location
The Altman Tract is in the northeastern corner of Manatee County. It encompasses a total of approximately 2,367 acres, all in Township 33 South, Range 22 East. The bulk of the Tract is in the shape of a triangle; a small "tab" is attached to the southeast corner of the "triangle" and extends south.
The eastern boundary of the Tract is the Manatee-Hardee county line; the Fort Green Mine is adjacent to the eastern
boundary. The property is bounded on the north and west by State Road (SR) 37. IMC's Four Corners Mine is across SR 37 from the Tract. All of the lands to the north, east, and west of the Tract have been mined and are being reclaimed. The southern boundary of the "tab" attached at the southeast corner of the "triangle" is SR 62. Otherwise, the land to the south of the Tract is owned by Manatee County. Manatee County acquired this land from IMC in a swap for some land the County owned on the Altman Tract so as to eliminate IMC ownership of land in the watershed of the Manatee River and to consolidate the County's land holdings in the area.
The northern point of the Tract consists of the southeast half of Section 1. Directly to the south is Section 12, which is included in its entirety in the Tract. To the west of Section 12 is the southeast half of Section 11; to the south of it is Section 13, almost all of which is included in the Tract. To the west of Section 13, the Tract includes roughly the northeast half of Section 14. The "tab" attached at the southeast corner of Tract is part of Section 24.
Horse Creek on the Tract
The Altman Tract contains what is left of the headwaters of Horse Creek. Historically, the headwaters of Horse Creek consisted of a series of wetlands connected by natural swales and sloughs that extended north of the Altman
Tract. When conditions were wet enough, water flowed through these headwater wetlands, sloughs, and swales and onto Section 1 of the Altman Tract from the north, then flowed southwest out of Section 1 and onto what is now the Four Corners Mine. It then flowed through another series of wetlands to the south before re-entering the Altman Tract at the location where box culverts now cross under SR 37 in Section 11. From there, water flowed south on the Altman Tract and meandered through an area of shallow sloughs to a large marsh, now known as the Central Marsh on the Altman Tract. Water flowed slowly through the Central Marsh towards the east and through a series of braided channels which continue east and form a deeper channel of the Horse Creek to the east of the Central Marsh. Near the eastern boundary of the Altman Tract, Horse Creek turns towards the south, where it exits the Tract near its southeast corner. Just before Horse Creek exited the Tract, another stream leading from wetlands to the south and west on the Tract joined the main Horse Creek stream.
Man's activities have altered the historic Horse Creek headwaters. By 1940, a straight, shallow ditch was scraped between the box culverts and the Central Marsh, apparently to speed the drainage of water away from SR 37 and into the Central Marsh. This ditch coincided in some but not all places with the
natural, meandering watercourse; as a result, water flows through both the ditch and the natural meandering watercourse.
More recently, the natural headwaters to the north and west of the Altman Tract were eliminated as a result of phosphate mining on the Four Corners Mine, which significantly reduced the size of the watershed upgradient of the Altman Tract. However, water still flows onto the Altman Tract from the location of the box culverts under SR 37.
To the east of the Altman Tract, the Fort Green Mine interrupted the flow from the wetlands on the Tract to the south and west of where Horse Creek now exits the Tract through seven culverts underneath an access road on the Fort Green Mine.
IMC and DEP take the position that Horse Creek itself does not include the Central Marsh or anything upgradient of the Central Marsh. But the greater weight of the evidence is to the contrary. Notwithstanding the Four Corners Mine, water still flows into the Altman Tract from off-site through the box culverts under SR 37, continues to and through the Central Marsh, and exits at the southeast corner of the Altman Tract.
Central Marsh
The Central Marsh is a large, varied marsh system.
The interior of the system is shrub marsh. Freshwater marshes surround the shrub marsh, and wet prairie surrounds the freshwater marshes. The Central Marsh overall is a very high-
quality, diverse wetland system. The shrub marsh portion of the Central Marsh also is of high quality.
IMC's botanist, Dr. Andre Clewell, testified that the Central Marsh was a large, mixed shrub marsh that was getting very woody and, citing the presence of red maple, was converting into a forested swamp. At one point, he went so far as to characterize it as an "impenetrable thicket" and a "vegetated desert" serving no wetland functions. This was a mischaracterization.
Dr. Clewell's testimony was countered in this and several other respects by the testimony of the County's witness, Kevin Erwin. Retained in January 2003 after illness limited the effectiveness of the County's intended witness, Jeremy Craft, Mr. Erwin was able to inspect the Altman Tract for three days in February 2003 as part of discovery in this case. During that
time, Mr. Erwin was able to gather information demonstrating that the Central Marsh is not one, large "vegetated desert." IMC's other expert wetlands biologist, Dr. Douglas Durbin, also declined to concur with Dr. Clewell's assessment, rating the Central Marsh as a medium-to high-quality wetland.
Other Wetlands and Uplands: Zonation
In addition to Horse Creek and the Central Marsh, the Altman Tract consists of a mosaic of other high-quality, interrelated wetlands and uplands, all with high-quality native
vegetation and only minor man-made impacts. There are deep marshes with extended hydroperiods, shallow marshes with moderate hydroperiods, and wet prairies with very short hydroperiods. There are bay swamps and mixed forested wetlands. There are expansive areas of palmetto prairie. There are herbaceous and grassy uplands prairies. There are some scrub and live oak. There are very few nuisance, exotic, or problematic species on the Altman Tract.
All the wetlands on the property exhibit "zonation," a concept introduced to the hearing through Mr. Erwin's testimony. "Zonation" describes essentially subtle changes that result as topography gradually and continuously changes, i.e., "changes in micro-topography." As a result of "zonation," many of the high- quality deep freshwater marshes on the Altman Tract give way to high-quality shallower marshes around the perimeter of the deep marshes, which in turn give way to high-quality wet prairie bordering the shallow marshes. Each of the different wetlands making up this mosaic has its own distinct hydroperiods. Adding to the diversity, adjacent uplands generally are diverse, high- quality native grasslands and other high-quality native upland habitats, including palmetto prairie. The result is a mosaic of a variety of slightly different, but interrelated high-quality native habitats on the Tract.
Agricultural Ditches
IMC emphasized the existence of agricultural ditches and the impacts of cattle grazing on the Altman Tract. In fact, while there are some agricultural ditches on the property, they are not extensive. In addition, the ditches on-site are mostly shallow, scraped ditches connecting existing wetlands. They are not designed to and do not lower the water table on-site. In addition, they do not appear to have been maintained, much less improved, in the 50 or more years of their existence. Cattle grazing has occurred on the Tract, but it has not been intensive.
Included among the ditches on the Altman Tract are some 4.8 miles of first-order streams. A first-order stream is the channel that continues from the headwater to the first confluence. First-order streams are important because they produce the biological energy for the system. Additionally, they reduce downstream nutrient loading by sequestering and reducing the movement of nutrients.
IMC's Use of FLUCFCS
As part of its applications, IMC used the Florida Land Use Cover Forms Classification System (FLUCFCS) to characterize and map the Altman Tract. Mr. Erwin disagreed with IMC's mapping in many respects. It appears that many of Mr. Erwin's disagreements simply reflected a preference for more precision, both in terms of the level of classification used and in terms of
the mapping detail. But some of IMC's mapping could lead to significant misunderstandings as to the nature of existing conditions on the Altman Tract.
According to IMC's mapping, approximately 236 acres of shrub marsh are on the Tract. Mr. Erwin thought about half that amount of acreage actually was shrub marsh. Much of the difference was in the mapping of the Central Marsh--IMC's mapping made the shrub marsh seem much larger than it is by failing to distinguish the freshwater marsh surrounding it.
According to IMC's mapping, approximately 85 acres of wetlands on the Altman Tract are "improved pasture." Actually, there is no improved pasture on the Altman Tract. What IMC mapped as "improved pasture" actually is mostly high-quality wet prairie.
IMC also mapped 869 acres--about 30 percent of the site--as mixed rangeland. Actually, there is no mixed rangeland on the Altman site. Instead, there are separate and discrete areas of mostly high-quality native grasslands and palmetto prairies.
IMC's WRAP Assessments of the Tract
IMC evaluated the wetlands on the Altman Tract using a modification of the South Florida Water Management District (SFWMD) Wetland Rapid Assessment Procedure (WRAP) developed for use in SWFWMD. While the WRAP scores confirmed that the wetlands
on the Altman Tract were not seriously degraded, they substantially and improperly understated the quality of the on- site wetlands. One of several factors in IMC's understatement of the Tract's WRAP scores was the inaccurate FLUCFCS mapping. In addition, it does not appear that enough credit was given for the high quality of adjacent uplands and other wetlands. There also were questions as to the level of training of those conducting the WRAP scoring for IMC, and whether they spent enough time on the Tract and viewed enough of the Tract to give proper and accurate scores.
Water Quality
Water quality on the Altman Tract appears to be very good. However, IMC has not sampled the water quality there. Instead, it provided DEP with water quality samples from a point in Horse Creek downstream from the property. Based on those samples, IMC represented to DEP that water quality on the Altman Tract was typical for a rural stream in this region of the State in a sub-basin impacted by agricultural use.
Wildlife and Fish Habitat
The Altman Tract provides good wildlife habitat.
Various portions of the Tract are utilized by listed species, including: bald eagle (a nesting pair), Florida scrub jay (1-2 families); gopher tortoise, eastern indigo snake, Florida sandhill crane, Florida mouse, and Southeastern American
kestrel. Other animals using the Tract include numerous wading birds; round-tail muskrats (one of few wetland-dependent small mammals); otters; and alligators (a species of special concern).
There are red-cockaded woodpecker cavities on the Tract. IMC characterized the cavities as abandoned, but it is possible that they were inactive at the time. There also was other suitable red-cockaded woodpecker habitat on the Tract.
During three days spent on the Altman Tract in February 2003, the County's consultants noted the presence of approximately 70 species of birds, 8-10 species of reptiles, and 5-6 species of amphibians.
The County's consultants did not have the time to conduct an adequate, comprehensive wildlife survey. IMC instituted a wildlife survey of the Tract prior to initiating the formal permit application process. IMC's survey was more extensive than the County's, but the time spent on the Tract by IMC's consultants was inadequate for the survey to be considered truly comprehensive. It does not appear that any dawn-to-dusk surveying was conducted; and none of the surveying was done at night, when surveys for some species one might expect to be found on the Tract should be conducted (such as amphibians). More abundance and diversity of wildlife probably use the Tract than suggested by the surveys in evidence.
Common species of generally small fish can currently occupy the wetlands, streams, and ditches on the Altman Tract that are sufficiently inundated and sufficiently connected to permanent waters to allow fish to exist. IMC reported to DEP that no listed or otherwise unusual or unique fish species exist in this region of Florida and that there were none on the Altman Tract. However, no fish sampling data was collected from the Altman Tract for submission to DEP.
In the three-day period of time they had to inspect the Altman Tract, Charlotte County's witnesses observed 402 acres of fish habitat, including 27 acres exhibiting flow. Potentially, there may be another 281 acres of marsh and swamp that provide habitat for fish on the property. This additional acreage seemed like suitable fish habitat to Dr. Fraser, but he either did not see any fish or did not look there. It is possible for fish using habitat on the Altman Tract to swim down Horse Creek into the Peace River.
Some fish species do not seem to be found in the Peace River any longer, but are or may still be found in the better fish habitat of the more swiftly-flowing Horse Creek. In addition, some fish species are predisposed to now rarer headwaters like those found on the Altman.
IMC's Proposal to Mine and Reclaim the Altman Tract
As previously found, the mining of the Altman Tract would be an extension of the IMC Four Corners Mine mining operation to the west of the Tract. Beneficiation, including clay settling ponds, and other processing activities will occur off-site at facilities already approved and operating or under construction. No approvals are needed or requested for those activities.
IMC seeks to mine and otherwise disturb 683.6 acres of DEP jurisdictional wetlands and water bodies for phosphate mining and associated activities on the Altman Tract. Approximately 1,534.9 acres of uplands also would be mined and otherwise disturbed by phosphate mining activities. IMC is proposing to preserve 61.1 acres of flow-way area of Horse Creek to the east of the Central Marsh, together with two connected forested bay swamp wetlands in that area. IMC also will not carry out any mining-related activities within a 750-foot radius of an eagle nest on uplands on the western portion of the Tract near the Central Marsh. In addition, no mining-related activity will take place within 1,500 feet of the nest during the nesting season (approximately May 15 through October 1), in compliance with United States Fish and Wildlife Service (USFWS) regulations.
Mining is planned to occur over a period of 12 years in accordance with a detailed annual mining and reclamation sequence set forth in the Draft Permit. Generally, mining will begin in the north and proceed to the south. After mining is concluded in a mining block, reclamation will begin in that block while active mining continues elsewhere on the site.
At the outset, IMC proposes to construct a ditch and berm recharge system around the perimeter of the site and along the northern boundary of the areas to be preserved and the Central Marsh to protect these areas from the impacts of active mining occurring to the north during the early years of the mining sequence. Before mining begins in the southern half of the Tract later in mining and reclamation sequence, a ditch and berm recharge system will be constructed to the south of the preserved areas and along the southern boundary of the Tract.
IMC also proposes to construct and operate an alternate flow-way ("AFW") at the Altman Tract. The AFW will be constructed at the outset and will divert water from where it enters the Tract through the box culverts under SR 37 and convey it along the western edge of the property boundary back to the existing Central Marsh. After the AFW is in operation, IMC plans to mine the area containing the existing watercourse conveying water between SR 37 in Years 3 and 4, while maintaining off-site flow to the existing Central Marsh and the
preserved area down-gradient. The AFW will continue to provide off-site flow to those areas during Years 4-6, while IMC reclaims a Replacement Central Marsh (also known as Mitigation Marsh 561) to the north of the existing Central Marsh. The Replacement Central Marsh is to be connected to the preserved area during Year 7. During Years 6-8, the AFW will be providing off-site flow to both the existing Central Marsh and the Replacement Central Marsh to the north.
In Year 9 of the sequence, off-site flow to the existing Central Marsh is to be discontinued, and mining would begin in that area. However, under Specific Condition 10 of the Draft Permit, this will only occur if "all of the success criteria for the West Fork of Horse Creek headwater marsh, identified in Permit No. 0142476-003 (Manson Jenkins) have been met within nine years, with a minimum of two years without intervention, from issuance of this permit unless another date has been approved in writing by the Bureau. In addition, the up-front mitigation of Mitigation Marsh 561 shall be completed according to Specific Condition 11 before the severance and mining of the existing marsh." If the date is extended, mining in the existing Central Marsh will not be allowed to proceed, and the AFW would have to continue to have to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh.
When the existing Central Marsh is mined, the AFW will not be needed any longer, and its location will be mined and then reclaimed. At that time, water from off-site will enter the Tract through the same box culvert and be routed directly into and through the Replacement Central Marsh.
Other areas of the Tract will be mined and reclaimed in accordance with the detailed annual mining and reclamation sequence. Mining is planned to occur over a period of 12 years, and reclamation is projected to be fully completed within the projected overall 17-year life of the project.
Proposed reclamation will be accomplished using two techniques--one for areas to be reclaimed as uplands and one for areas to be reclaimed as wetlands. In both cases, the voids created by the mining operations will be filled with sand generated in the beneficiation process. For uplands reclamation, the sands will be covered with the overburden that has been cast aside during the mining operation, which will then be carefully contoured to achieve the desired upland topography. Revegetation will follow using three techniques: direct seeding (using native seed sources as well as commercial seeds); placement of salvaged topsoil; and planting with available nursery stock. IMC witnesses testified to IMC's intent to promote successful revegetation of the upland areas by engaging in an aggressive effort to control potential invasions by
nuisance or exotic species. IMC witnesses also testified to IMC's agreement to an aggressive uplands nuisance species control program and to special techniques for upland revegetation to improve long-term function. However, the Draft Permit does not appear to include such an agreement as a permit condition. IMC characterized control of nuisance and exotic species in the uplands as being not required by rule. But the weight of the evidence was that nuisance and exotic species will not only invade the uplands but from there will also invade wetlands during dry conditions. For that reason, wetland reclamation will not succeed if nuisance and exotic species are not controlled in the uplands.
With regard to wetlands reclamation, following sand placement, IMC will establish precise contours and elevations to assure that wetland contours are built as designed. The land surface will then be prepared for planting by "muck inoculation" in which surface soils taken from a natural wetland system are imported to provide a fertile layer for vegetative growth and to "jump start" the plant community with the seed sources and different types of root stock that are contained in the muck. (For this to be effective, the muck should not contain seed and root stock of nuisance and exotic species, which are limited to
10 percent of wetland coverage under the monitoring and
maintenance program required by Special Condition 13 of the Draft Permit.)
Post-reclamation, the Tract would contain approximately 788.4 acres of wetlands (749 acres of herbaceous and 39.5 acres of forested) provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional
90 acres of herbaceous wetlands would be reclaimed to meet requirements of the Corps of Engineers for additional mitigation for loss of isolated wetlands.
Of the total wetland acreage post-reclamation, 721 acres will be freshwater marsh (code 641), of which 658 will be DEP jurisdictional. These will be relatively deep marshes with long hydroperiods. Only 52 acres will be shrub marsh (code 646) post-reclamation, of which only 11 will be DEP jurisdictional. According to IMC's FLUCFCS mapping, only 360 acres of freshwater marsh currently exist on the Altman Tract (of which 328 acres is DEP jurisdictional); Mr. Erwin generally concurred with this acreage total (while noting that more surrounds the Central Marsh than IMC mapped there). According to IMC's FLUCFCS mapping, 278 acres of shrub marsh currently exist on the Altman Tract (of which 236 is DEP jurisdictional); Mr. Erwin believes there actually is approximately half that amount currently on
the Tract, but still much more than IMC intends post- reclamation.
According to IMC's FLUCFCS mapping, 58 acres of wet prairie (code 643) are on the Tract (almost all of which is DEP jurisdictional). Mr. Erwin thinks there actually are fewer acres of wet prairie on the Tract. Post-reclamation, IMC plans for there to be 92 acres of wet prairie (of which 80 will be DEP jurisdictional).
As previously found, IMC mapped existing herbaceous, palmetto prairie (code 329), and other shrubs and brush (code
321) as mixed rangeland (code 330). Post-reclamation, IMC proposes to increase the mixed rangeland from 852 to 1,147 acres, while also eliminating 136 acres of herbaceous, almost all 98 acres of palmetto prairie, and almost 276 acres of other shrubs and brush mapped on the Tract.
IMC does not propose any improved pasture (code 210) post-reclamation, and claims credit for eliminating 85 acres of improved pasture presently on the Tract. But actually there is no improved pasture on the Tract. Most of what IMC mapped as improved pasture actually is native palmetto prairie, herbaceous, and wet prairie cover.
The 4.3 acres of streams and waterways on the Altman Tract have a Level II FLUCFCS code of 510. IMC's reclamation will not restore any streams or waterways during the reclamation
process. IMC and DEP take the position that the streams actually are agricultural ditches of lower ecological value than the marshes IMC plans to recreate. However, many of the so- called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades.
IMC has offered to provide a conservation easement in favor of the State of Florida consisting of not less than 230.8 acres. The conservation easement will consist of 169.7 acres of reclaimed Mitigation Marsh 561 ("Reclaimed Central Marsh") and the 61.1-acre preserved flow way area of Horse Creek. The Mullins Family's mineral interests underlie a portion of the preserved flow-way.
Impacts During Mining/Reclamation
As previously indicated, mining obviously will have a devastating impact on the natural environment of the Altman Tract. IMC proposes measures to attempt to minimize or reduce those impacts, both on the Tract and on adjacent lands.
Ditch and Berm Recharge System
IMC proposes to construct a perimeter ditch and berm system to preclude a direct release of potentially muddy water from mining areas to adjacent land, wetlands, or waters. This is recognized as a "best management practice" (BMP) by DEP and the United States Environmental Protection Agency. Water retained
within the boundaries of the ditch and berm system is recycled and reused in the mining operation. IMC reuses approximately 95 percent of its water. The water in the ditch element of the ditch and berm system serves to maintain the ground water level on adjacent property owned by others and in waters and wetlands that are to be preserved from mining. Otherwise, groundwater will flow into dewatered mine cuts from adjacent lands, lowering the water table significantly in areas outside the mine cut.
IMC proposes to construct two recharge ditch systems on the Altman Tract to protect the Central Marsh and the preserved area. Both ditch systems will originate in the vicinity of
SR 37 and continue across the property to the eastern boundary. The northernmost ditch system will run north of the Central Marsh and the preserved area; another section of this ditch system will be constructed to the south and west of the preserved area. The southernmost ditch will run along the southern property boundary.
Certain geological conditions at the Tract could inhibit the effectiveness of the ditch and berm system to maintain adjacent groundwater levels. But if such circumstances are encountered, an alternative recharge well system could be installed in those locations. The recharge system would be charged with clean water in order to be effective.
Under a worst-case scenario, approximately two million gallons a day of water could be "lost" from the recharge ditches through seepage. But if seepage occurs, most of the water would reenter the mine recirculation system where it would be available for reuse and recycle.
Generally, reasonable assurances were given that the ditch and berm systems can and will be constructed, maintained, and operated so as to be effective in protecting adjacent lands and the proposed preserved areas. However, it is questionable whether the ditch and berm system will be effective in the vicinity of the preserved forested bay swamp wetlands.
In order to maximize mining in the area, IMC intends for the northernmost recharge ditch system to track closely the northern edge of those two mushroom-shaped features as they jut out north from the portion of the Horse Creek flow-way to be preserved. As a result, while the direct linear distance from the eastern boundary of the Tract to the western end of the westernmost of the two forested bay swamp wetlands proposed for preservation is approximately 2,600 to 3,000 feet, approximately 8,000 feet of recharge ditch must be constructed in that section of the recharge ditch. Mining the area between the two bay swamp wetlands will be like digging a big, deep trench with smaller, shallower recharge ditches on either side, making it harder to keep the recharge ditches filled with sufficient water to protect
the bay swamp wetlands. In addition, while the bay swamp wetlands will be connected to the existing Central Marsh and receive some water from the AFW through the Central Marsh to the south, they will receive absolutely no runoff from the north.
For these reasons, IMC did not give reasonable assurances that the two forested bay swamp wetlands will be preserved, as planned, during mining. They may be seriously adversely affected. If this happens, they will not be as useful as IMC plans as a refuge for mobile wildlife on the Tract during mining. In addition, as Dr. Clewell testified in IMC's case-in- chief, bay swamps are difficult and take a long time to restore.
Mining and Reclamation Sequence
IMC proposes a mining and reclamation sequence in part to minimize the duration of impacts of active mining. However, the benefits of this proposal are less than might be supposed at first blush because no additional recharge ditches are planned between mining blocks within the mine. Except where mining blocks are bordered by a perimeter or preserved area recharge ditch, groundwater will flow into dewatered mine cuts from adjacent mining blocks, lowering the water table significantly in areas outside the mine cut and up to a distance of approximately several hundred to a thousand feet. This will adversely impact the hydrology of wetlands within those adjoining areas--both wetlands not yet mined and wetlands that
are supposed to be in the process of being revegetated as part of the reclamation sequence. Some existing wetlands will be impacted in this way one to two years before they are mined; some areas being revegetated during the reclamation sequence will be impacted in this way for three to four years.
The requirement of "up-front mitigation" through the Replacement Central Marsh also would help reduce impacts during mining. However, as indicated, it is possible that this could extend the time during which the AFW would be required to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh.
Central Marsh Hydroperiods During Mining
Reasonable assurances were not given that flows through the AFW from off-site will be sufficient to sustain required hydroperiods of both marshes for the length of time this is planned to be required, much less for a longer period of time.
This issue was not addressed in IMC's case-in-chief.
After the County's expert hydrologist, Mr. Davis, in the County's case-in-chief, Dr. Garlanger addressed it in rebuttal testimony by stating: "Based on my analysis, there is sufficient water -- with proper operation and maintenance of the recharge system, there is sufficient water for both the existing
Central Marsh and the Replacement Central Marsh to have a very long hydroperiod."
The only evidence of any analysis of wetland hydroperiods on the Altman Tract performed by Dr. Garlanger was designed to compare pre-mining and post-reclamation wetland hydroperiods. It did not address wetland hydroperiods during mining. In addition, this analysis was based on his suspect modification of the HELP model. See Findings 157-163, infra. For these reasons, Dr. Garlanger's "analysis" did not provide reasonable assurances that "there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod."
The only other evidence of wetland hydroperiods on the Tract was an analysis submitted by Florida Engineering and Environmental Services (FEES). This analysis only modeled post- reclamation wetland hydroperiods. It also had several other deficiencies. It used a model with a groundwater component (Mine Hydrology Program) designed to simulate flow of groundwater into a mine cut, not into a wetlands. FEES also did not account for the effect of changed soil conditions on groundwater flow post-reclamation, and added an inappropriate "safety factor" by cutting the results in half. Errors with the surface water model component included the inappropriate use of a single event-based model for a multi-year simulation, the
failure to account for changes in soil conditions, the use of the same curve number throughout the entire simulation, and numerous mathematical errors in the set-up and conceptualization of the surface water model. Errors in the spreadsheet combining the two components included the incorrect calculation of the stage-storage-discharge relationship, use of an ET value that is unrepresentative of actual conditions, and a major error in the calculation of wetland water levels.
IMC did not rely on the FEES model in its case-in- chief. In fact, IMC's main hydrologic witness, Dr. Garlanger criticized the modeling performed by FEES. He testified that he would not have done the analysis in the same way, disagreed with some of FEES' assumptions, and would not have used the same model.
Dr. Garlanger added to his rebuttal that "IMC has committed to augment or supplement the replacement marsh with water from the recirculation system or from surficial aquifer dewatering wells" or even "irrigate it, if they have to." Even if those extraordinary measures are taken by IMC with respect to the Replacement Central Marsh, they would not address the needs of the existing Central Marsh.
Fish and Wildlife
Mining clearly will have adverse impacts on all fish and wildlife on the Altman Tract except the bald eagle.
Measures to protect the bald eagle nest site on the Tract should be adequate to avoid adverse impacts on that species.
The proposed mining sequence and preserved area will be of some benefit to some mobile wildlife species, but it will not be enough to avoid adverse impacts. All fish on-site will be destroyed, less mobile species will not survive; some more mobile species probably will not survive. Loss of habitat on the Tract will adversely affect all of these species (again, except the bald eagle pair). The limited amount of preserved area will not be enough to avoid adverse impacts (even if the ditch and berm recharge system is effective in preserving the forested wetland bay swamps).
The existing scrub jay habitat on the Altman Tract is not good quality. There are 30-40 acres of Type I (optimal) scrub jay habitat on the Tract, but the oaks are too high (more than three meters high. There are over 100 acres of Type II jay habitat on the Tract. The jay habitat on the Tract could be improved through active management.
In 1998, there were two scrub jay family groups on the Tract. By 2002, only one family group remained, which was predictable due to habitat quality. Without active management, the scrub jay habitat at the Tract is not conducive to long-term survival and propagation.
As part of a mine-wide Scrub-Jay Habitat Management Plan, IMC assessed several options for the scrub jay pair residing on the Altman Tract (including on-site habitat preservation) using sound scientific methodology, including population viability analysis models. It was decided that relocation to suitable habitat closer to other scrub jay families in accordance with the approved Scrub-Jay Habitat Management Plan has the highest probability of maintaining and recovering the scrub jay population in this area. As a result, IMC plans to capture and relocate the remaining scrub jay pair before mining on the Altman Tract.
IMC will implement eastern indigo snake protection measures approved by the USFWS and FFWCC and incorporated into the Biological Opinion that applies to the Tract. These measures essentially consist of training land clearing crews in identification and appropriate response. If encountered during land clearing, work will cease and a trained biologist will be notified. The biologist will assess the work area and determine whether the snake should be captured and removed to a safe area.
IMC regularly relocates gopher tortoises in advance of mining operations. According to IMC's ERP, surveys will be conducted prior to land clearing, and any gopher tortoises and their commensals (including the eastern indigo snake, the gopher frog, and the Florida mouse) will be relocated using appropriate
permits and in coordination with the Florida Wildlife Conservation Commission (FWCC).
According to IMC's ERP application, if active sandhill crane nests are found during mining, all land clearing in the vicinity of the nest and all mining in the vicinity of the nest will stop until the nesting cycle is complete. A 225-meter protection zone will be established per state guidelines around all active sandhill crane nests found during pre-clearing surveys. The FFWCC deems protection zones of this size to be a best management practice.
Benefits of Reclamation
As found, the wetlands and uplands on the Altman Tract are of very high quality--higher than claimed by IMC. IMC did not give reasonable assurances that the wetlands and uplands it would reclaim would maintain or improve the functions provided by the existing conditions.
IMC's plan is to recreate a "natural landscape" on the Altman Tract. By this, IMC means a combination or mixture of natural wetland and upland habitat. Previous reclamation projects have not attempted to do this.
The 1,410 acres of uplands IMC proposes to recreate will be dominated by 1,147 acres of "mixed rangeland" (FLUCFCS code 330). The 788 acres of wetlands IMC proposes to recreate will be dominated by 658 acres of freshwater marsh.
Essentially, IMC plans to recreate a wetland system dominated by a large, relatively deep freshwater marsh. Freshwater marsh acreage will be more than double present conditions. There will be fewer shallow freshwater marshes. IMC plans to increase the amount of wet prairie, but there will be hardly any shrub marsh post-reclamation. Generally, there will be less "zonation" and less diversity.
To increase on-site wetlands, uplands will be made correspondingly smaller. In addition, the quality of the uplands will decrease, as will the manner in which they interact with nearby wetlands. The diverse range of herbaceous, palmetto prairie, and other shrub and brush upland cover types presently found on the Tract will be largely replaced by 1,147 acres of mixed rangeland and 99 acres of unimproved pasture, out of a total of 1,410 acres of upland, post-reclamation. Eight acres of live oak and 33 acres of mixed hardwood-conifer will be gone. Pine flatwoods will more than double. As a result, the diversity and variety presently on the Tract will be missing under IMC's plan.
The interactions among the diverse kinds of high- quality wetlands and uplands give the Altman Tract its valuable fish and wildlife functions. The evidence did not demonstrate that these functions will be restored through reclamation except perhaps the functions served by deep marshes.
Wading bird populations nest in areas that provide a safe environment to raise their young. The existing Central Marsh does not provide optimal habitat for wading birds because the shrubby vegetation harbors predators. The proposed Replacement Central Marsh probably would provide better nesting and roosting habitat for wading birds such as egrets, herons, ibises, sand hill cranes, and wood storks than the existing Central Marsh. However, reasonable assurances were not given that the reclaimed Tract as a whole would provide wading bird habitat that is as good or better than the diverse mosaic of habitat types currently existing on the Tract.
IMC justifies its plan to "simplify" the Altman Tract through reclamation by stating it will restore 1940 conditions that are better than those existing on the Tract. But the more persuasive evidence was that, with relatively minor differences, conditions today probably are quite similar to conditions in 1940. It was not proven that IMC's proposed reclamation project would return the Tract to conditions in 1940.
One difference between current conditions and 1940 is the agricultural ditches. But as indicated, these ditches have not had serious adverse impacts on the Altman Tract. In addition, they have provided a kind of fish habitat on the site that would not be replaced by the Replacement Central Marsh.
Any improvements from their elimination would have to be weighed against this habitat loss.
Another difference is some transitioning to shrubbier conditions in parts of the Central Marsh. IMC attributes this change to fire suppression. It may also result at least in part from reduction of the up-gradient watershed as a result of mining on the Four Corners Mine.
To the extent that there have been some changes due to fire suppression, the Draft Permit does not mandate fire management. Without fire management, it would be hard to sustain and maintain conditions that require periodic cool, surface fires, even if IMC were to recreate them.
To the extent that there have been some changes due to drier conditions, IMC's strategy seems to be to essentially eliminate shrub marshes from the Tract and recreate more and deeper freshwater marshes. As indicated, assuming enough off- site flow for the strategy to succeed, this would alter the Tract and reduce the benefits of diversity and zonation.
Evidence presented by IMC demonstrates a certain ability to reclaim the basic cover types proposed for the Altman Tract. IMC relied on 15 restoration sites as examples of successful restorations of the kinds proposed in IMC's reclamation plan. Mr. Erwin had the opportunity to spend five to six days inspecting this sites to test IMC's assertions.
Based on his limited review, he was able to demonstrate that none of the restoration sites were of higher quality than comparable cover types on the Altman Tract, that most were lower quality, and that many had problems with nuisance and exotic species.
Nine of IMC's examples were to demonstrate successfully recreated freshwater marshes and wet prairie. But Mr. Erwin pointed out that they primarily demonstrated an ability to recreate quality deep marshes. There were few shallow marshes. There were no wet prairies with native grasses in evidence; and there was no demonstrated ability to recreate them. Instead, the demonstration sites showed examples of wet pasture. The wet pasture usually was vegetated with some form of pasture grass, such as Bermuda and bahia grass, not with native grasses. In addition, an especially troublesome exotic and nuisance species called cogon grass dominated in many of the wet pastures and was invading some shallow marshes. There was no demonstrated ability to consistently control cogon grass for long in the shallow marshes and wet pasture areas.
Three of the sites were supposed to demonstrate successfully recreated shrub marshes. While some were fairly successful, others were dominated by exotic and nuisance species, such as primrose willow. In some of the shallower shrub marshes, cogon grass also was invading from the upland
transition area. It appeared that, at least without active management, these exotics and nuisance species tended to invade the recreated shrub marshes (especially the shallower ones) from the transition areas. There was no demonstrated ability to consistently control these species for long in the shallower recreated shrub marshes.
Three of the sites were supposed to demonstrate successful recreated mixed wetland forest. One, called Morrow Swamp, was an early, experimental attempt by Mr. Erwin. It was released in 1983, and Mr. Erwin had not seen it since the early 1990's. On inspection in February 2003, he found that the hardwoods planted there no longer exist. All that remains essentially are large cypress trees in deep water. A second site, called "8.4 Acre," was becoming mixed forest in part, but much of the site was shrub marsh dominated by Carolina willow (a native plant, but one that does not fit the mixed forested wetland target), pasture (Bahia) grass, and cogon grass. Lack of continued management of this site probably has contributed to its failure to develop better. It was designed to have water levels and fluctuations controlled, but the designed flow way system is not being maintained. The third site, called "84(5)," also has some mixed forested wetland, but there also are large areas of shrub marsh and cogon grass. It is possible the site has not been more successful because an outfall has not been
maintained, leading to higher water levels than planned, which can lead to invasion of undesired exotic species and perhaps retard natural re-seeding.
Two sites were supposed to demonstrate successfully recreated mixed wetland hardwoods (similar to mixed forested but with fewer pine trees and more cypress). The first was "Dogleg Branch," which IMC did at its Lonesome Mine. Part of this site was a good example of successfully recreated mixed hardwoods wetland, which Dr. Clewell emphasized in his testimony. However, Mr. Erwin pointed out several other pertinent factors. First, "Dogleg Branch" has been in existence for 25 years. Second, the recreated stream where the most successful mixed hardwood wetland was located was noticeably more steeply banked than the preserved area downstream from the mine. Third, adjacent uplands (mostly planted pines) suffered from significant invasions of cogon grass. The second site was another part of "8.4 Acre," but the evidence was not persuasive that it contains a good example of wetland hardwoods mixed.
As previously indicated, IMC developed WRAP scores for existing wetlands on the Altman Tract that substantially and improperly understated their quality. IMC also developed WRAP scores for 80 reclaimed wetlands. Generally, those scores were as high or higher than the scores IMC gave to the wetlands on the Altman Tract.
Mr. Erwin was only able to inspect 15 of the 80 recreated wetlands for which IMC had WRAP scores--namely, those used by IMC as examples of the kinds of wetlands IMC would reclaim on the Altman Tract under the CRP. Mr. Erwin did not have time to develop his own WRAP scores for all of those recreated sites. But he saw enough to be convinced that the wetlands on the Altman Tract, overall, were higher quality than the 15 recreated wetlands. Mr. Erwin's testimony was persuasive in this regard, and there is no reason to believe that the other
65 recreated wetlands are as good or better than the Altman Tract wetlands.
As indicated, the Altman Tract also is characterized by high-quality native uplands adjacent to its wetlands. The evidence was that, once the uplands are disturbed for mining, they will be susceptible to invasion by exotic and nuisance species, which would then be poised to invade wetlands during dry spells. As a result, control of exotic and nuisance species on the uplands is necessary for the long-term success of recreated wetlands; and IMC's "offer" to use native species for uplands recreation and to control nuisance and exotic species on uplands proactively through herbicides, removal, and fire and to limit them to ten percent of the upland cover is not superfluous. Rather, control of nuisance and exotic species on uplands is necessary for any hope of long-term success of
recreated wetlands on the site. It is not clear from the evidence whether the "offer" to limit them to 10 percent will be enough; it also is not clear whether the 10 percent limit can be met.
In rebuttal, IMC recalled Dr. Durbin to counter evidence in Charlotte County's case that the type and nature of the Altman Tract would not be restored through the proposed reclaimed wetlands. Dr. Durbin noted that, according to their field notes, Charlotte County consultants who evaluated the prevalence of plants and wildlife on IMC reclamation areas during discovery found that a very high number of plants species are also found in healthy natural systems. Similarly, wildlife species observed on the reclaimed areas matched well with those on undisturbed areas. But this evidence did not address Mr. Erwin's position that presence of plant and wildlife species does not necessarily indicate their prevalence and distribution. In addition, as to his comparison of wildlife species on reclaimed wetlands versus existing wetlands on the Altman Tract, Dr. Durbin did not correlate the size and type of wetlands he was comparing.
IMC's reclamation plans are complicated by the mineral interests of the Mullins Family. Reclamation necessitates control over the site, as reflected in Draft Permit provisions to limit activity on the site during the reclamation
process. IMC must restrict access to its property and manage it to ensure that there is no incidental encroachment or secondary activities that might compromise mitigation success. Reclaimed wetlands must be protected from mowing and grazing activities during the establishment phase of the reclamation for five years. But IMC cannot prevent the Mullins Family from accessing its portion of the Tract to explore and mine for minerals.
Depending on how the Mullins Family might choose to exercise those rights, it could interfere with IMC's plans for reclamation on the southern part of the Tract. For that reason alone, reasonable assurances have not been given that reclamation will be successful. (The rights of the Mullins Family also reduce the value of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation.)
In summary, even assuming that the Mullins Family does not interfere with reclamation plans, IMC only has demonstrated the consistent ability to recreate deep marshes and some ability to recreate shrub marshes. There was no demonstration of IMC's ability to recreate shallower marshes or wet prairie. There also was no demonstration of an ability to recreate the kind of diversity through "zonation" and adjacent high-quality uplands found on the Altman Tract. Recreated wetlands can serve some of the wetland functions and values
present on the Altman Tract today, but reasonable assurances were not given that they can serve all of those functions and values. As Mr. Erwin put it, given the hydroperiods planned for the reclamation wetlands, reclamation will not come close to replacing the type, nature, and functions presently on the Tract. To the extent that they can, the evidence was that long- term management would be required to maintain them and prevent them from becoming invaded and in time dominated by exotic and nuisance species.
Other Mitigation
IMC proposes certain measures for the protection of certain listed species. These include mine-wide Scrub-Jay Habitat Management Plan to improve and protect habitat for scrub jays in the vicinity of the Altman Tract and record a conservation easement on property designated by the USFWS. This plan was included in the modified CRP covering the Altman Tract. There was no evidence of any other habitat management plans for any other fish or wildlife species, listed or unlisted, wetland- dependent or not. IMC's ERP application includes reference to plans for protection of certain listed species by relocation to safe sites, but did not include any habitat management plans other than the those for the bald eagle pair on the Tract and for scrub jays.
IMC is in the process of developing a habitat management plan for the gopher tortoises and their burrow commensals (such as the eastern indigo snake, the gopher frog, and the Florida mouse) for all property owned by IMC in Hillsborough, Manatee, Polk, and Hardee Counties. A draft of the plan has been submitted to the FWCC for review. The draft plan proposes to use a model to estimate how many gopher tortoise will have to be relocated due to mining activities and determine suitable habitat on land owned by IMC for relocating them.
Monitoring
The Draft Permit contains extensive monitoring requirements. Through the evidence it presented, primarily through the testimony of Dr. Anthony Janicki, Charlotte County criticized several aspects of the monitoring scheme in the Draft Permit.
Dr. Janicki proposed what he viewed to be an ideal monitoring system. To some extent, Dr. Janicki's views reflect more of an academic than a permitting perspective, i.e., that more data is always better. In addition, since Dr. Janicki's monitoring goals are different from DEP's in the context of permitting, the standards, extent of monitoring, and indicators of environmental health he suggests are different from those identified in the Draft Permit. But these differences generally do not invalidate the monitoring system in the Draft Permit.
One basic criticism made by Dr. Janicki is that the Draft Permit does not require a baseline water quality study defined both spatially and temporally. However, such a study would require at least a year of study and possibly three years or more, depending on rainfall, to obtain enough data under different flow conditions to have confidence in the baseline. While this might be necessary to determine whether an activity will degrade water quality, e.g., in an Outstanding Florida Water, it is not necessary to determine whether Class III water quality standards are being met.
Another reason given by the County for requiring such a study was to monitor nutrient loading in anticipation of Horse Creek being named an "impaired water" with specific total maximum daily loads (TMDLs). But those requirements need not be anticipated in this proceeding. If TMDLs are imposed in the future, the necessary monitoring can be imposed at that time.
One of Dr. Janicki's criticisms is valid. Specific Condition 15 states that mitigation wetlands can only be released when Specific Conditions 11 and 14 are met (T. 3133- 3134). However, Specific Condition 15.d. states that DEP "may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition
11 have not been met." Since Specific Condition 11 incorporates Specific Condition 14, this provision may also allow mitigation
wetlands to be released based on a visual evaluation, even if criteria in Specific Condition 14 are not met. Release by visual evaluation would not allow a reasonable person to determine whether the recreated wetlands have met all the success criteria. The more objective standards contained in Specific Conditions 11 and 14 should not be discarded in favor of subjective visual evaluations.
ERP Conditions of Approval1
ERP conditions of approval are set forth in Chapter 373, Florida Statutes, and in Rule 62-330, which incorporates certain SWFWMD Rules in effect in 1995, including Rules 40D-4.301 and 40D–4.302, and the 1995 SWFWMD BOR. To demonstrate entitlement to the Draft Permit, IMC is required to provide reasonable assurance to DEP that it will meet these conditions of approval. As to Section 1 of the Altman Tract, different conditions apply for WRP review. These conditions are less stringent than ERP conditions of approval. IMC also is required to demonstrate compliance with Chapter 378, Florida Statutes, and the implementing provisions of Rule 62C-16 to receive approval of the Modified CRP.
Rule 40D-1.6105 -- Legal Control
Rule 40D-1.6105(1) states that all ERPs issued under these rules "are contingent upon continued ownership, lease, or other legal control of property rights in underlying, overlying
or adjacent lands." Rule 40D-1.6105(3) states that "if the ownership, lease, or other legal control is divided, such permit shall immediately terminate unless the terms of the permit are modified by the Board or the permit is transferred pursuant to District rules."
As previously found, the Mullins Family has fractional mineral rights to lands underlying most of the southern half of Altman Tract, including part of the portion of Horse Creek on the Tract proposed for preservation; and they have not consented to IMC's proposed mining and reclamation. The legal interest of the Mullins Family could interfere with IMC's plans for mining and reclamation on the southern part of the Tract. The rights of the Mullins Family also adversely affect part of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation. Under these circumstances, IMC does not have the necessary legal control of property rights underlying the Altman Tract for purposes of Rule 40D-1.6105.
IMC's application and other submittals to DEP during the review process did not disclose the interests of the Mullins Family in the Altman Tract although IMC was well aware of those interests. There is no indication that DEP was aware of the interests of the Mullins Family before deciding to give notice of its intent to issue the Draft Permit. There was no testimony
or evidence from DEP concerning the significance of the mineral interests of the Mullins Family.
BOR 3.2.1 -- Elimination or Reduction of Impacts
BOR 3.2.1 requires that applicants explore practicable design modifications to reduce or eliminate adverse impacts to wetlands and other surface water functions. With respect to phosphate mining, there are no practicable design modifications that would completely eliminate impacts to wetlands and still allow the underlying resource to be mined.
The most severe design modification, in the context of phosphate mining, essentially amounts to a "mine or no mine" decision. As a result of pre-application conferences, IMC proposed not to mine in a portion of the flow-way of Horse Creek and the adjacent forested wetland systems.
IMC and DEP take the position that the economic value of the phosphate rock resource underlying the wetlands on the Altman Tract is a factor to be considered in deciding whether additional wetlands should be avoided. Actually, BOR 3.2.1.1 states that a proposed modification will not be considered "practicable" if it "is not economically viable" and "need not remove all economic value of the property in order to be considered not 'practicable'" but that "[c]onversely, a modification need not provide the highest and best use of the property to be 'practicable.'" There was no persuasive evidence
that expanding the preserved area would not be "economically viable" or that it would "remove all economic value of the property."
It is clear from the evidence that IMC had no reasonable expectation that it would be allowed to mine the areas it is proposing for preservation. The evidence also was persuasive that IMC also did not initially have reason to expect that it would be allowed to mine the Central Marsh.
IMC and DEP cite other so-called design modifications to reduce the impacts of phosphate mining on the Altman Tract: the proposed mining and reclamation sequence to reduce the number of wetlands that would be disturbed and not reclaimed at any point in time; the requirements that the mitigation marsh at the Manson Jenkins Project in the headwaters of the West Fork of the Horse Creek, as well as the Replacement Central Marsh on the Altman Tract, must be successfully reclaimed as "up front mitigation" before mining is allowed to occur in the existing Central Marsh on the Altman Tract; and a requirement that IMC construct the AFW so that, until mining of the Central Marsh is allowed to occur, mining elsewhere on the Tract will not adversely impact flow to the Central Marsh.
While clearly beneficial, the proposed mining and reclamation sequence is limited because no recharge ditches are planned for the individual mine blocks. As previously found,
this will adversely affect wetlands in adjoining areas, resulting in adverse impacts to wetlands one to two years before they are mined. It also will have an impact on wetland reclamation.
The requirements for "up-front mitigation" also are beneficial--i.e., it is better than not requiring "up-front mitigation." But if success of the required "up-front mitigation" is delayed, the AFW will have to supply water for both the existing Central Marsh and the proposed Replacement Central Marsh for a correspondingly extended length of time. Reasonable assurances were not given that enough water can be supplied to both marshes to sustain required hydroperiods without adverse impacts even for the length of time contemplated by the proposed mining and reclamation sequence, much less for an extended period of undetermined length.
The "up-front mitigation" is required to meet the success criteria specified in Special Condition 11 of the Draft Permit. However, full function is not restored at this point in the reclamation process. Under Special Condition 12 of the Draft Permit, IMC is required to report data on physical and biological development to DEP for at least another five years. Under Special Condition 13, development of the Replacement Central Marsh is to be monitored and maintained "to promote survivorship and growth of desirable species." Under Special
Condition 14, reclaimed wetlands are not to be "released" by DEP until constructed in accordance with permit requirements, more stringent "release criteria" (summarized in Table MR-2 of the Draft Permit) are met, and no intervention in the form of irrigation, de-watering, or replanting of desirable vegetation has occurred for a period of two consecutive years. The evidence was that this often takes longer than originally envisioned. The reclaimed wetlands identified by IMC as successful examples of the reclamation proposed at the Altman Tract do not provide full wetland function despite the fact that most of them have been existence for more than 15 years. The median date of release from DEP oversight for the 15 reclaimed wetlands was 10 years.
IMC also cites the AFW as a design modification under BOR 3.2.1. But clearly no mining of the Central Marsh and watercourse between it and the box culverts under SR 37 would be allowed without the AFW, and the very need for the AFW begs whether IMC should be permitted to mine those areas.
Based on the facts of this case, mining the existing Central Marsh and the watercourse between the Central Marsh and SR 37 should not be allowed or, if allowed, should be delayed until the mitigation headwater marsh on the Manson Jenkins Project is released by DEP. In addition, no mining should be allowed in the area between the two forested wetland bay swamps
to ensure that the ditch and berm recharge ditch system areas will be effective in protecting those preserved areas.
Rule 40D-4.301(1)(a) --Water Quantity Impacts
Under Rule 40D-4.301(1)(a), an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands.
Surface water flows are dependent on two sources:
rainfall runoff from adjacent areas; and (2) groundwater that enters surface water streams, sometimes referred to as "base flow." On the Altman Tract, both rainfall runoff and baseflow basically flows into the watercourse between the box culverts under SR 37, the Central Marsh, and the rest of Horse Creek. Surface water flow off the Tract exits where Horse Creek exits the Tract.
During mining and reclamation activities on the northern half of the Tract, the ditch and berm recharge system will capture rainfall runoff on these areas and eliminate the rainfall runoff contribution from those areas to stream flow at the point where Horse Creek exits the Altman Tract. When the southern half of the Tract is mined and reclaimed later in the sequence, the ditch and berm recharge system will capture rainfall runoff from the southern half of the Tract and eliminate the rainfall runoff contribution from those areas. The ditch and
berm recharge system helps maintain baseflow from those areas, except where open mine cuts are too close. The combined effect of rainfall runoff and baseflow, however, will be a reduction in surface water flow off the Altman during mining.
After mining and reclamation are complete, the ditch and berm systems will no longer be required. Rainfall runoff will flow across and through the reclaimed wetlands and then flow off-site. However, as previously found, more and deeper wetlands will be present after reclamation is completed than exist today. These wetlands tend to "use," through evapotranspiration (ET), more water than a comparably sized upland area. Thus, after reclamation is completed, there will be some reduction in the amount of water contributed from the property to the stream flow where Horse Creek exits the Altman Tract.
IMC did not provide DEP with any hydrologic analysis of the extent of the water quantity impact of mining and reclamation on stream flow in Horse Creek downstream from the Altman Tract prior to DEP's decision to issue notice of intent to issue the Draft Permit. Subsequently, information of this nature was provided to DEP by Dr. Garlanger.
Dr. Garlanger performed modeling to assess the potential significance of flow reductions anticipated during mining and reclamation at the Tract. The modeling results predicted that during mining and reclamation there will be some
reduction in the flow rate in Horse Creek leaving the Tract during the 30 percent of the year when flow leaves the Tract. The predicted reduction, however, would be only a small percentage of the total flow at any point in time. Furthermore, the only effect of the predicted reduction in flow would be to reduce slightly the depth of the water in the channel. This predicted depth reduction probably would have no adverse ecological impact. Dr. Garlanger predicted that, after mining and reclamation are completed, flow in Horse Creek at the property line actually would increase very slightly on the
average, but only because a portion of the runoff that now enters Horse Creek a bit further downstream from the Tract would report to the exit of Horse Creek from the Tract post-reclamation.
Using the predictions from his modeling, Dr. Garlanger also assessed the worst-case impact of the predicted flow reductions from the Tract on several downstream locations. His analysis predicted that, during mining, there would be slight flow reductions occurring during otherwise high-flow conditions with the magnitude of such flow reduction decreasing as one moves downstream. Flow impacts at Charlotte Harbor were predicted to be miniscule and immeasurable. Even where measurable impacts were predicted at the closer downstream locations, the only anticipated impact was a slight reduction in water depth that is of no ecological consequence. During low-flow periods, no flow
reduction impacts were predicted at any downstream locations. Flow impacts predicted after reclamation is complete at the Tract were even less than those predicted during mining.
Whether IMC gave reasonable assurance as to the water quantity impact of mining and reclamation on the Altman Tract on receiving waters and adjacent lands depends completely on the validity of the modeling analysis performed by Dr. Garlanger. Nonetheless, and even though Dr. Garlanger's analysis was not prepared until after DEP's notice of intent, there was no evidence as to DEP's evaluation of the analysis since no DEP witness was called to give opinion testimony on this (or any other) issue.
Dr. Garlanger's analysis essentially divided the Altman Tract into uplands and wetlands. For the uplands, he simulated runoff and baseflow into the wetlands using a modified version of the Environmental Protection Agency's (EPA's) Hydrologic Evaluation of Landfill Performance ("HELP") Model, which was run in a continuous manner with daily rainfall for 25 years. Dr. Garlanger then used those results as an input for another model for the wetlands to simulate change in wetland storage. He used a spreadsheet program to keep track of the changes on a daily based. Whenever water levels in the wetlands exceeded storage capacity, the excess water was treated as stream flow. This analysis was performed for five scenarios:
current conditions; pre-mining at Four Corners (with a larger testing area); during mining at the time point of maximum capture or severance of acreage from the natural system; post- reclamation on the Altman Tract only; and post-reclamation on the entire reclaimed watershed.
Dr. Garlanger's modified HELP model was not calibrated. Calibration is the process of verifying that the computer program matches real life conditions. Calibration is necessary to check the ability of the model to make reliable and accurate predictions. Since Dr. Garlanger's model was not calibrated, it only could be used for interpretative (i.e., comparative) purposes.
The HELP Model was specifically designed to evaluate the movement of water through the top of a landfill into the leachate collection system. The HELP Model User's Manual specifically states "the model should not be expected to produce credible results from input unrepresentative of landfills."
(T. 2004; Co. Ex. 55). Recognizing that the Altman Tract is not representative of a landfill, Dr. Garlanger modified the primary groundwater flow equation in the HELP model by changing several lines of computer code. Dr. Garlanger's modification of the HELP model has not been sanctioned by the authors of the HELP Model, nor has it gone through EPA's peer review and administrative approval process.
The County's hydrologist, Mr. Phil Davis, questioned the validity of Dr. Garlanger's analysis on numerous grounds. Many of his questions were answered by Dr. Garlanger in rebuttal. But some important questions remain.
One of Mr. Davis' criticisms was an error he thought Dr. Garlanger made in using Dupuit seepage equation. In rebuttal, Dr. Garlanger explained that there was no error because he was using the Uniform Infiltration and Drainage Equation, not the Dupuit equation. But Dr. Garlanger's report stated that he used yet another seepage equation, called Darcy's Law, which Dr. Garlanger called the "mother of all other seepage equations."
Another of Mr. Davis' criticisms was that much better modeling tools were available to IMC, instead of the combination of spreadsheet models and other models, including the modified HELP model, used by Dr. Garlanger. The best of them, according to Mr. Davis, is one called the Integrated Hydrologic Model, which was developed by Florida Institute of Phosphate Research ("FIPR") specifically to model the pre-mining and post- reclamation hydrology of a phosphate mine project (T. 2111- 2115).
In rebuttal, Dr. Garlanger acknowledged the existence of more complicated, numerical models that he could have used. He testified that he did not use any of them because he was
"comfortable with the HELP model," having been "using it for a long time." He "only had to make a very minor modification," "basically one line of computer model code to make the HELP model calculate accurately the groundwater outflow." (T. 3401- 3402). He testified that he had been using his modified HELP model for three years. He claimed that his model was "peer- reviewed" in the sense that he was using it for IMC's pending Ona Mine application. As part of the "Team Permitting Process" for the Ona Mine application, he discussed his modeling approach with engineers and hydrologists from DEP and SWFWMD on the "hydrology work group" and stated: "Several suggestions were made. I believe I incorporated most of the suggestions into the model." (T. 3402-3403). There was no corroborating testimony or evidence from DEP or SWFWMD.
Mr. Davis also questioned whether Dr. Garlanger's modification of the HELP model appropriately took into account changes in the surficial aquifer as a result of mining and reclamation. It appears that Dr. Garlanger's HELP simulations all used the same soil and aquifer parameters. The surficial aquifer presently consists of topsoil, overburden, and matrix. During active mining, the site will consist of some combination of open mine pits filled with recirculation water, some mined pits filled with sand tailings, and other mined pits filled with sand tailings and topsoil. In addition, IMC may throw
overburden up against some or all mine cuts to help prevent seepage of groundwater flow out of the mine cuts. As a result, there will be vertical layers of overburden in parts or all of the site. Dr. Garlanger testified in rebuttal that he actually analyzed soil and aquifer parameters and determined that they would be the same before mining, during mining, and post- reclamation. Again, there was no opinion testimony from DEP.
It is clear that proposed activities on the Altman Tract will reduce stream flow in Horse Creek to some extent. It also is clear that phosphate mining historically has contributed to some extent to decreased stream flow in the Peace River. As mining moves south, more runoff will be captured during mining since the unit rate of runoff is higher in the Lower Basin of the Peace River due to different soil conditions there.
Mr. Davis testified that he believed the capture rate for the Altman Tract to be seven to nine inches a year--as much as 50 percent more than estimated by Dr. Garlanger. (T. 2192). Given the importance of surface water flow to the ecology of Horse Creek, the Peace River, and Charlotte Harbor, additional assurances should be required to better quantify the decrease in stream flow in Horse Creek and downstream that will result from mining the Altman Tract through use of a better model and further scrutiny of the soil and surficial aquifer parameters used for modeling.
With regard to groundwater quantity, the evidence demonstrated that the ditch and berm recharge system generally will be effective in maintaining surficial aquifer water levels in adjacent lands and wetlands during mining and reclamation. Following reclamation, groundwater levels probably will return essentially to pre-mining elevations.
Mr. Davis questioned whether lower post-reclamation topography in the southern end of the Altman Tract could cause a problem. A large reclaimed wetland only 100-200 feet from the southern property boundary would be five feet deeper than its pre-mining counterpart and could possibly cause drawdown impacts to wetlands in the adjoining Manatee River Basin in that location. Mr. Davis' concern was not directly rebutted by IMC, but it was not enough to overcome IMC's reasonable assurances as to water quantity impacts.
As previously found, while the ditch and berm recharge systems generally would provide adequate ground water flow to the preserved wetlands on the Altman Tract during mining, reasonable assurances were not given that there will be no adverse impacts on the two forested bay swamps to be preserved; the ditch and berm system tracks the northern boundaries of those wetlands so closely that they may well be impacted through loss of surface water runoff and perhaps also groundwater from the north during mining.
(4) Rule 40D-4.301(1)(b) -- Flooding
An ERP applicant must demonstrate that its activities will not cause an increase in on-site or off-site flooding potential. To make this demonstration, a storm water analysis is performed. Rule 40D-4.301(1)(b) and BOR 4.2 require that predicted peak discharges from a mining site during a 25-year/24- hour storm event after mining and reclamation are completed may not be greater than that which would have occurred prior to mining or other development in the watershed. Under BOR 4.2.a.1, the allowable discharge is the peak rate at which runoff leaves the property by gravity under existing site conditions. Under BOR 4.2.b, unless otherwise specified, off-site discharges for the pre-mining and reclaimed conditions shall be computed using SWFWMD's 24-hour, 25-year rainfall maps and Soil Conservation Service's Type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11.
Several peak flow analyses meeting the BOR requirements were discussed at the hearing in this case. All concluded that the post-reclamation peak discharges would be less than pre-mining peak levels. DEP relied on them in deciding to give notice of intent to issue the Draft Permit. Specifically, Mr. Steve Partney, DEP's reviewing engineer, testified that he relied primarily on an analysis prepared by Florida Engineering
Design (FED), as the last analysis submitted in response to DEP's questions during the review process.
All of these analyses utilized rainfall runoff models. Pickett and Associates (Pickett) and FED utilized the HEC-1 Model, and FEES utilized the AdICPR model. In its review of these analyses, DEP did not perform any independent modeling or calculations to verify the predicted flows. None of these models were calibrated; as a result, they only can be used for interpretative (i.e., comparative) purposes.
All of these hydrologic analyses suffered from deficiencies, which rendered the model results unreliable. None of them accounted for water storage (retention or detention) on- site either pre-mining or post-reclamation; all essentially produced rainfall runoff hydrographs. FED's analysis improperly routed water out of wetlands located on off-site clay settling areas, and Pickett's misplaced a decimal point in defining the slope of the watershed. As a result, the discharges predicted by all these analyses were too high. The estimates for the five to 7.5 square mile Altman Tract drainage basins modeled ranged from 14,796 to 959 cubic feet per second (cfs), with corresponding peak unit flow rates ranging from 1,887 to 185 cfs per square mile. The peak flows were many times larger than the 25-year peak flood estimates at the gauging stations on Horse Creek near Arcadia, which has a 218 square mile drainage basin,
and even on the Peace River at Arcadia, which has a 1,367 square mile drainage basin. They are also much greater than peak flows measured at other stream gauges in the Peace River with drainage areas much greater than the one simulated in this case.
While none of these model predictions were reliable, the models still are useful for comparative purposes as an interpretive tool. All predicted lower peak flows after mining and reclamation than before. This information, together with the knowledge that there was going to be an increase in the amount of wetland acreage on the Tract, was a sufficient basis for a finding that there would not be increased flooding potential.
In its case-in-chief, IMC presented the testimony of Dr. John Garlanger on an empirical study he performed primarily to assess the AFW to more accurately estimate the actual anticipated peak flows at the property. Having done his study for the AFW, it was relatively easy for him to use the same analysis to predict peak flows where Horse Creek exits the Tract.
Employing a regional multiple regression analysis technique, Dr. Garlanger utilized actual historical flood flow information from nearby streams and estimated a pre-mining peak flow rate of 227 cfs exiting the property and a post-reclamation peak flow rate of 203 cfs at the same location.
The County criticized Dr. Garlanger's regional multiple regression analysis as being a modification of a USGS-
sanctioned regression equation developed for the State of Florida by W.C. Bridges of the United States Geological Survey in 1982. As indicated in a report submitted by Dr. Garlanger in March 2000, the Bridges equation would predict a post- reclamation peak flow for the Altman Tract that is a few percentages higher than the pre-mining peak flow. (798 cfs vs. 763 cfs, although other peak flows were indicated elsewhere in Dr. Garlanger's testimony). (T. 854, 856, 3492). But this is because use of the Bridges equation for both pre-mining and post-reclamation does not account for the proposed increase in storage on-site post-reclamation.
Bridges' method recognized that the presence of lakes and wetlands in the watershed would affect flood flows. He took into account the actual area of lakes in a particular watershed and then assumed that wetlands would cover an additional three percent of the drainage area. However, in the region of Florida where the Altman Tract is located, there are few lakes but lots of wetlands in the watersheds involved. For that reason,
Dr. Garlanger modified the Bridges equation and used the actual wetland percentage present in the watersheds for his analysis. Statistical testing gave Dr. Garlanger a very high confidence level in the results from use of his modified equation.
The County's criticism of Dr. Garlanger's modification of the Bridges equation was based primarily on a
misunderstanding that wetlands assumed to be "full" would provide no storage capability and would have no impact upon the flooding conditions on the Tract. Actually, "full" wetlands have no more retention capacity and begin to overflow. Because of the nature and configuration of wetlands, however, additional waters reporting to these systems do not immediately flow downstream. Instead, the water is detained in the wetland systems as it overflows laterally and only gradually discharges waters to downstream locations. This detention capacity of wetlands provides significant flood control function and was properly taken into account in Dr. Garlanger's analysis.
The County also criticized Dr. Garlanger and the other IMC consultants for making no change in their models to account for changes in the composition of the surficial aquifer post-reclamation. However, Dr. Garlanger explained in rebuttal that soil storage capacity of the surficial aquifer affects the runoff curve numbers used as parameters in the various models. He testified that he reviewed USGS measurements for mined and unmined areas and found that the curve numbers were very similar for pre-mined and post-reclamation conditions. For that reason, he did not think using the same runoff curve numbers pre-mining and post-reclamation would introduce any significant error into the model results.
The County also criticized Dr. Garlanger for using four gauging stations on Horse Creek for data to develop his regional regression equation. This may have introduced bias into his analysis, but the County made no attempt to quantify the error that may have been introduced.
The County also criticized Dr. Garlanger's regional multiple regression analysis for not taking into account antecedent moisture conditions. However, Dr. Garlanger explained that, while he did not use the "Soil Conservation Service's type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11," as required by BOR 4.2.b, his equation accounted for antecedent moisture conditions by using actual peak flow data.
Notwithstanding the County's criticisms, Dr.
Garlanger's modification of the Bridges equation probably produced the most accurate peak flow study in evidence in this case. While Dr. Garlanger's study does not meet the technical requirements of BOR 4.2.b, it supplements the earlier analyses and provides additional assurance that post-reclamation peak discharges from the Altman Tract probably will not exceeding pre- mining peak discharges.
Rule 40D-4.301(1)(c) -- Impacts to Surface Water Storage and Conveyance Capabilities
IMC has agreed to modify the point of connection between the Replacement Central Marsh and the preservation area based on recommendations from Dr. Garlanger to minimize any disturbance of the preserved area.
As indicated, Dr. Garlanger used his regional multiple regression analysis to assess the capacity of the AFW to convey anticipated peak flows during its operation and opined that the AFW, as designed, will carry these flows without difficulty. However, his analysis raised some concerns with regard to erosion control. For that reason, he recommended and IMC agreed to implement minor design revisions at both ends of the AFW:
the 90-degree "elbow" turn at the inlet from the culverts will be protected from erosion by the placement of rip-rap; and the outlet to the Central Marsh will be modified to allow water to sheet flow at a slower rate when entering the Central Marsh. (IMC Ex. 96). With these changes, Dr. Garlanger predicted that anticipated flows through the vegetated AFW would not cause erosion in the structure or downstream.
The County's criticisms of Dr. Garlanger's regional multiple regression analysis have been addressed. See Findings 174-176, supra. The County's witnesses did not perform any independent modeling of anticipated flows through the AFW, and
Dr. Garlanger's analysis provided reasonable assurance that peak flows would neither cause erosion nor overtop the AFW. Of all the peak flow analyses, only Pickett's analysis predicted peak flows high enough to cause erosion and to overtop the AFW. But Pickett's extremely high peak flows were clearly erroneous.
A hydrologic analysis was also performed to ensure that the Replacement Central Marsh would be adequate to carry anticipated peak flows.
Taken together, the evidence proved that storage and conveyance capabilities will be more than adequate to handle peak discharges without increasing flooding either upstream or downstream of the Altman Tract both during mining and after reclamation.
Rule 40D-4.301(1)(d) -- Fish & Wildlife
Rule 40D-4.301(1)(d) requires that IMC provide reasonable assurances that its proposed activities "will not adversely impact the value of functions provided to fish and wildlife, and [l]isted species, including aquatic and wetland dependent species, by wetlands, other surface waters and other related resources of the District." BOR 3.2.2 requires IMC to provide reasonable assurances that its proposed activities "will not impact the values of wetlands, other surface waters and other water related resources of the District, 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."
It is clear from the evidence that the proposed mining of the Altman Tract will have adverse impacts on fish and wildlife resources on the Altman Tract. IMC characterizes these impacts as "short-term" and "localized" and notes that "temporary destruction of habitat and displacement of individuals is an unavoidable consequence of mining activities." IMC proposes to mitigate for these impacts through the implementation of "special measures" and by reclaiming the Tract to more and better wetland wildlife habitat than presently exists. However, as previously found, reasonable assurances have not been provided that the "special measures" and reclamation will offset the adverse impacts. See Findings 103-126, supra, and 220-222, infra.
Rule 40D-4.301(1)(e) -- Water Quality
Rule 40D-4.301(e) requires that IMC provide reasonable assurances that its proposed activities "will not adversely affect the quality of receiving waters such that the water quality standards . . . will be violated." According to Rule 62-312.080(1), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract.
Water within active mining areas will be retained within the mine's water recirculation system. Any necessary discharges will be made from a permitted outfall located on other
property owned by IMC. Years of sampling and analysis demonstrate that water discharged from IMC's permitted outfalls is of high quality and reflects a very high rate of compliance with permit criteria.
The waters on the Altman Tract and in Horse Creek where it exits the Tract are classified by DEP as Class III water bodies. IMC provided reasonable assurances that, after reclamation, surface water bodies on the Altman Tract should be able to achieve applicable Class III surface water quality criteria. The extensive water quality monitoring conducted by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. Reclaimed wetland areas will not be connected to waters of the state until water quality criteria are met.
Reasonable assurances were given that there will be no water quality impacts on any Class I waters, any Outstanding Florida Water (OFW) or aquatic preserve, or any Class II waters. The first downstream Class I water is 41 miles from the Tract; the Charlotte Harbor OFW is 51 miles away, and the nearest Class II water (approved for shellfish harvesting) is 55 miles away.
Extensive groundwater quality monitoring in the vicinity of phosphate mining operations has demonstrated that such operations do not adversely impact the quality of
groundwater in the surficial aquifer or in the deeper intermediate or Floridan aquifer systems.
Charlotte County argued that adverse water quality impacts will occur downstream of the AFW (namely, discharge of turbid and sediment-laden water into the Central Marsh) if the flow velocity through the AFW becomes excessive or if the water overtops the AFW. But the evidence proved that such concerns are theoretical only, and unlikely to occur.
The County also argues that destruction of stream habitat on the Altman Tract will result in a lack of habitat for benthic organisms and higher nutrient loadings and concentrations. However, the most significant stream habitat not proposed to be preserved is found in parts of the Central Marsh and in the watercourse between it and the box culverts under SR 37; most of the first-order streams on the Tract are the other agricultural ditches, which are less significant streams. For that reason, reasonable assurances were given that, if this kind of impact occurs, it would be limited, and applicable water quality standards probably would not be violated.
Rule 40D-4.301(1)(f) -- Secondary Impacts
Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not cause adverse secondary impacts to water resources.
There was no evidence of any secondary impacts. All impacts are primary impacts resulting from IMC's proposed activities on the Altman Tract.
Rule 40D-4.301(1)(g) -- Minimum Flows and Levels
Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not adversely impact the maintenance of surface or groundwater levels or surface water flows "established in pursuant to" Section 373.042, Florida Statutes.
No minimum flows or levels have been established by rule pursuant to Section 373.042, Florida Statutes, for any water body potentially impacted by the proposed mining or reclamation at the Altman Tract, including Horse Creek or the Peace River. See ManaSota-88, Inc., et al. v. IMC Phosphates Co., DOAH Consolidated Case Nos. 01-1080, etc. (DEP Final Order Nov. 22, 2002)("Manson Jenkins Final Order"), Ruling on Exception II ("Minimum flows and levels established pursuant to Section 373.042, Florida Statutes, must be adopted by rule, not on a case-by-case permit basis"); Findings of Fact 110, 199, 267 and
284. Until applicable minimum flows and levels are established by rule, IMC's proposed activities cannot impact the maintenance of any minimum flows and levels.
The Peace River Regional Water Supply Authority's (Authority's) water plant is downstream of the confluence of
Horse Creek and the Peace River. The Authority has a water use permit ("WUP") authorizing water withdrawals from this facility through 2016. Charlotte appears as a permittee on the WUP. Standard Condition 8 of the WUP requires surface water withdrawals to cease or be reduced if the Peace River's flow falls below minimum levels established in Florida Administrative Code Chapter 40D-8. Once SWFWMD formally establishes minimum flows and a recovery strategy for the Peace River, this permit condition will require the Authority to cease or reduce its withdrawals to achieve the minimum flow.
The County wants any Draft Permit issued in this case to include a provision similar to the one in the Authority's WUP. But the Draft Permit is not a WUP, and there was no evidence as to any practicable way to impose a similar condition in the Draft Permit.
Rule 40D-4.301(1)(h) -- Works of the District
Rule 40D-6.051(5) states that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if SWFWMD issues an ERP for a project. The testimony of DEP witnesses was that DEP and SWFWMD have an informal agreement that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if DEP issues an ERP for a project.
Rule 40D-4.301(1)(h) requires IMC to provide reasonable assurances that its proposed activities "will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S."
Under Rule 40D-6.031(2)(d), tributaries of the Peace River are "Works of the District." As previously found, Horse Creek is a tributary of the Peace River. Rule 40D-6.021(1) defines "tributaries" to mean "the contributing streams and other watercourses including brooks, rills, and rivulets, extending upstream to the point water usually begins to flow in a regular channel, with an alveus, or bed, and banks or sides, or to the point where the lines of ordinary high water marks converge, whichever extends the farthest upgradient." Section 373.019(11), Florida Statutes, also defines "other watercourses" to mean "any canal, ditch and other artificial watercourses in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted."
As previously found, Horse Creek passes completely through the Altman Tract. For that reason, the portions of Horse Creek passing through the Altman Tract are part of the Horse Creek tributary of the Peace River and are "Works of the District."
It is clear that the "Works of the District" on the Altman Tract will be adversely affected by IMC's proposed
activities. Mining will destroy and remove them upgradient of the proposed preserved area.
IMC characterizes the destruction and removal of the Horse Creek tributary on the Altman Tract as a "temporary disturbance" and relies on its proposal to maintain flows through use of the AFW, as well as its position that these areas "will be reclaimed in a manner that will enhance their ecological function."
Mitigation appears in Chapter 3 of the BOR, which is titled "Environmental." According to BOR 3.2, the criteria contained in Chapter 3 (including mitigation) apply to the "Environmental Conditions for Issuance" contained in BOR 3.1.1. Rule 40D-4.301(1)(h) is not identified in BOR 3.1.1 as one of the "Environmental Conditions for Issuance."
If mitigation is available to offset adverse impacts to "Works of the District," reasonable assurances were not given that IMC's proposed reclamation will offset those impacts. As found, reclamation will not restore existing stream-like flow in parts of the Central Marsh and between it and the box culverts under SR 37. It was not proven that eliminating these features will "enhance" ecological function.
Rule 40D-4.301(1)(i) -- Engineering and Scientific Capability
Rule 40D-4.301(1)(i) requires IMC to provide reasonable assurances that its proposal "is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed."
As reflected in previous findings, reasonable assurances were not provided as to certain aspects of IMC's proposal. Reasonable assurances were not provided that both the existing Central Marsh and proposed Replacement Central Marsh can be hydrated from off-site flow when this would be necessary. Reasonable assurances were not provided that the ditch and berm recharge system will be effective in preserving the two bay swamp forested wetlands. Reasonable assurances were not provided that stream flow to receiving waters will not decline. Reasonable assurances were not provided as to all aspects of the reclamation plan. In other respects, IMC's proposal is capable of being effectively performed and will function as proposed, based upon generally accepted engineering and scientific principles.
Rule 40D-4.301(1)(j) -- Financial, Legal and Administrative Capability (BOR 3.3.3.7, Financial Responsibility)
Rule 40D-4.301(1)(j) requires IMC to provide reasonable assurances that its proposed activities "will be conducted by an entity with financial, legal and administrative
capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued."
It is clear from the evidence that IMC owns the surface lands and the phosphate mineral interests to a depth of
150 feet. But, as previously found, IMC did not give reasonable assurance that it has the ability to prevent the Mullins Family from exercising its rights to explore and mine for minerals on the southern half of the Altman Tract. Without the ability to exclude the Mullins Family, IMC cannot give reasonable assurance that it can perform mining and reclamation of those lands, as proposed. In addition, the Mullins Family's mineral rights adversely impacts part of the conservation easement offered by IMC.
BOR 3.3.7.6 allows an applicant to establish financial responsibility by several means, including "(d) Deposit of cash or cash equivalent into an escrow agreement."
BOR 3.3.7.7 required IMC to submit an estimate of the total cost of wetlands mitigation addressing the relevant elements of cost as set forth in the BOR. The estimate is to be prepared assuming that a third-party contractor would do the mitigation work. The estimate is to be submitted along with a draft of the financial responsibility mechanism.
IMC's most recent proposal estimates mitigation cost of $8,320 an acre for herbaceous wetlands, $8,722 an acre for shrub marshes, and $11,415 an acre for forested wetland system, for a total cost of $6.7 million. (T. 125; IMC Ex. 47). But the County presented evidence through its expert, Kevin Erwin, that the actual cost will be $25,660 an acre for herbaceous wetlands and $28,484 an acre for forested wetlands. (T. 2799- 2801; Co. Ex. 1612). IMC did not rebut the County's evidence. As a result, IMC did not provide reasonable assurances that its demonstration of financial responsibility is sufficient.
In addition, IMC's draft escrow agreement is to be funded with cash on an annual basis. IMC takes the position that this is acceptable because BOR 3.3.7.6 requires establishment of financial responsibility "for each phase of the project." But calendar years of the proposed mining and reclamation sequence are not separate phases of the mining and reclamation project and should not be considered to be separate phases for purposes of BOR 3.7.7.6. IMC's ERP application states on page SP-01960 that it is not a multi-phase permit. The Draft Permit, in Table 1-A, refers to just two project phases--the first lasting six years, and the second spanning the rest of the project. According to BOR 2.1, a phased project is one where the applicant obtains a conceptual permit encompassing all project phases before obtaining a construction permit for the first phase; when no
conceptual permit has been obtained, "applications for phases of a project may be considered only when the phases are totally independent of, or make sufficient provisions for, adjacent lands." Here, the years in IMC's proposed mining sequence are not totally independent. As previously found, wetlands in the active mining blocks will be impacted by mining of adjacent lands.
IMC does not offer any financial responsibility for proposed reclamation of uplands. Mining and reclamation of uplands are not considered part of the "project" for purposes of Rule 40D-4.301(1)(j) and the financial responsibility BOR provisions. However, as found, successful reclamation of uplands is required in this case to give reasonable assurances as to successful reclamation of the wetlands.
Rule 40D-4.302(1)(a) -- Public Interest Balancing Test
Rule 40D-4.302(1)(a) requires that IMC provide reasonable assurances that its proposed activities will not be contrary to the public interest, upon consideration of the seven factors listed in the rule. (According to Florida Administrative Code Rule 62-312.080(2), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. See also Section 403.918(2), Florida Statutes (1991).
Public health, safety, or welfare or the property of others
As found, the project is located on IMC's private property and will not adversely affect public health, safety, or welfare, or the property of others in any way not addressed under one of the other factors.
Conservation of Fish & Wildlife
The proposed activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Reasonable assurances were not given that the proposed mining sequence will prevent adverse impacts; it will be of some benefit to some mobile wildlife species but not enough to avoid adverse impacts on conservation of them and their habitat. Measures proposed by IMC to help conserve fish and wildlife, including endangered or threatened species, and their habitats both on-site and off-site will be beneficial, but reasonable assurances have not been given that the overall effect of the proposed activities will not be adverse.
IMC suggests that its voluntary establishment of a conservation easement over the preserved flow-way of Horse Creek and the Replacement Central Marsh will assure that the fish and wildlife values in these areas will be protected in perpetuity. However, that would not be true as to the portions of preserved
flow-way where the Mullins Family has mineral rights. In addition, as of the date of the final hearing, the Board of Trustees of the Internal Improvement Trust Fund had not accepted the offered conservation easement. Without acceptance and management, the benefits of the offered conservation easement are not assured.
IMC also suggests that its offered conservation easement and will act as a wildlife corridor and will connect to a larger regional network of habitat corridors conceived of and being encouraged by DEP known as the Integrated Habitat Network (IHN). However, it is not clear from the evidence how or if the IHN actually will tie into the Altman Tract.
Navigation, flow or harmful erosion or shoaling
As found, reasonable assurances have not been given that the proposed activities will not adversely affect the flow of water on the Altman Tract--specifically, off-site stream flow, on-site stream flow between the box culverts under SR 37 and the Central Marsh, and the flow required to hydrate both the existing Central Marsh and the proposed Replacement Central Marsh during the times this will be required.
Otherwise, reasonable assurances have been given that the proposed activities will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Horse Creek and the other water bodies on the Altman Tract are private
and not navigable. With design modifications recommended by Dr. Garlanger and accepted by IMC, reasonable assurances have
been given that the AFW will not cause erosion either within the AFW or in downstream waters. Based on Dr. Garlanger's recommendation, IMC has also agreed to revise the post- reclamation topography to match the elevation of the roadside ditch along SR 37 with bottom contour elevations of the Replacement Central Marsh. (T. Garlanger at 578; IMC Ex. 97, 98). With this revision, post-reclamation flows through this area will not cause erosion.
Fishing, recreational values or marine productivity
The proposed activities will not adversely affect the fishing or recreational values or marine productivity in the vicinity. The Altman Tract is privately owned and does not currently support public recreation or fishing activities. Being approximately 50 miles upstream from Charlotte Harbor, there is no marine productivity in the area. Following completion of reclamation mining activities, the Altman Tract will support similar fish and recreational values as currently exist on the Tract.
Temporary or permanent nature
Section 378.202(1), Florida Statutes, states that phosphate mining is a temporary use of the land. Under Chapter
378, Florida Statutes, and Rule 62C-16, mine operators are required to expeditiously reclaim mined land to a beneficial use.
In the case of the Altman Tract, some combination of mining and reclamation activities are planned to take place for approximately 12 years, with reclamation activities being completely at the end of 17 years. However, reclamation could take longer than planned. When completed, the reclamation project becomes permanent in nature.
Impact on significant historical and archeological resources.
The Tract contains no significant historical or archeological sites.
Current conditions and relative value of functions performed by affected areas.
As previously found, the current condition and relative value of functions performed by the Altman Tract are very high. Reasonable assurances were not given that conditions and relative value of functions after reclamation will be as high.
BOR 3.3 -- Mitigation
Unavoidable adverse impacts to wetland functions caused by phosphate mining may be offset by mitigation as provided in BOR 3.3. BOR 3.3 cautions: "In certain cases, mitigation cannot offset impacts sufficiently to yield a [permittable] project. Such [cases] often include activities
which . . . adversely impact habitat for listed species, or adversely impact those wetlands or other surface waters not likely to be successfully recreated."
Under Section 373.414(6), Florida Statutes, phosphate mining wetland reclamation activities are deemed to be appropriate mitigation for purposes of the ERP process if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. In this case, IMC provided reasonable assurances that water quality will be maintained but did not prove that proposed reclamation activities will maintain or improve the function of the biological systems present at the site prior to the commencement of mining activities.
Rule 40D-4.302(2) -- Consideration of Past Violations
DEP reviewed issues dealing with IMC's compliance with the ERP rules. DEP also took into consideration compliance issues with SWFWMD. All compliance issues related to both have been resolved.
Rule 40D-4.302(1)(b) -- Cumulative Impacts Analysis
Section 373.414(8)(a), Florida Statutes, requires DEP to consider the cumulative impacts of a proposed project on surface water and wetlands within the same drainage basin when evaluating an ERP application. Rule 40D-4.302(1)(b) requires an applicant for an ERP to provide reasonable assurance that the
project will not cause unacceptable cumulative impacts on wetlands and other surface waters. Section 403.919, Florida Statutes (1991), also contained a somewhat different requirement for consideration of cumulative impacts, called "equitable distribution," which applies to WRPs.
Section 373.414(8)(b), Florida Statutes, provides that, if an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, then DEP shall consider the regulated activity to meet the cumulative impact requirements of Section 373.414(8)(a). See also Manson Jenkins Final Order, Ruling on Exception I; Finding of Fact No. 282.
To the extent that IMC relies on reclamation for mitigation, the mitigation is confined to the Altman Tract. If this mitigation offsets adverse impacts, as IMC claims, there would be no need to consider cumulative impacts, since all mitigation would be within the same drainage basin as the adverse impacts to be mitigated.
The only off-site mitigation proposed by IMC in this case would relate to parts of the "special measures" proposed for protection and conservation of wildlife. The County criticized IMC for not assessing the cumulative impacts on scrub jays since mitigation for the loss of scrub jays and scrub jay habitat on the Altman Tract is to occur outside the Peace River Basin.
However, scrub jays are not wetland-dependent species and need not be included in a cumulative impacts analysis under the applicable statute and rule.
On the other hand, if the proposed mitigation does not offset the adverse impacts of the proposed project, the project's impacts would not be permitted, and a cumulative impacts analysis would be superfluous. In this case, reasonable assurances were not given that proposed reclamation will offset impact. If the Draft Permit is not issued for that reason, cumulative impacts would not have to be addressed.
While perhaps unnecessary, IMC presented an analysis prepared by Dr. Garlanger on the cumulative impacts of phosphate mining on flow conditions in the Horse Creek sub-basin and in the Peace River Basin. Dr. Garlanger used information gathered by another IMC consultant as to the acreage mined and reclaimed in the Peace River Basin from 1978 through 2002, and as to acreage anticipated to be mined and reclaimed between 2003 and 2027. Using information from his other modeling efforts, including his modified HELP model, Dr. Garlanger estimated a "maximum capture rate" for lands undergoing mining and an "ET loss rate" for reclaimed lands.
In arriving at the "maximum capture rate,"
Dr. Garlanger assumed that all runoff would be captured by the ditch and berm recharge system surrounding the acreage being
mined. This was a conservative assumption in that some water is discharged through outfalls permitted under the National Pollution Discharge Elimination System (NPDES). On the other hand, Dr. Garlanger assumed that there would be no reduction in baseflow if all ditch and berm recharge systems are maintained and operated correctly. While probably reasonable for purposes of his analysis, this may have been a liberal assumption in that there might be some reduction in baseflow contributions to stream flow during mining. Dr. Garlanger estimated a "maximum capture rate" of 0.56 cfs per square mile.
In arriving at the "ET loss rate," Dr. Garlanger analyzed the post-reclamation land forms and their accepted average ET rates, together with estimates in ET changes calculated in connection with other mines. Using his professional judgment, he decided to use an "ET loss rate" of
0.05 cfs per square mile for reclaimed lands.
Dr. Garlanger then applied his "maximum capture rate" and "ET loss rate" to the average number of acres mined and reclaimed during the period 1978 through 2002. This produced an estimated 2.71 cfs decrease in average flow in the Horse Creek sub-basin basin, both at SR 64 and at SR 72. He then applied his "maximum capture rate" and "ET loss rate" to the average number of acres anticipated to be mined during the period from 2003 through 2027. This resulted in estimates of decreases in average
flow in the Horse Creek sub-basin of 11.70 cfs at SR 64 and 17.75 cfs at SR 72 (where cumulative flow impacts are higher because more mining will occur further south in the basin). Dr.
Garlanger labeled the difference between the estimated decrease in average flow for 1978-2002, and the projected decrease in average flow for 2003-2037--i.e., 8.99 and 15.04 cfs, respectively--as the "cumulative impact" at those locations.
Flow duration curves using 1978-2002 average flows as the baseline were used to demonstrate that so-called "cumulative impacts" would mean lower levels during periods of high flow (less than 25 percent of the time) but insignificant differences during periods of low flow (the rest of the time).
Dr. Garlanger then performed similar analyses, using the same "maximum capture rate" and "ET loss rate," for the part of the Peace River Basin above Arcadia and for the entire Peace River Basin above Charlotte Harbor. The estimated average decrease in flow was different at these two locations during the "baseline" period: 60.13 cfs at Arcadia; and 62.84 cfs at Charlotte Harbor. The projected average decrease in flow also was different at the two locations in the later period, 2003- 2027. Because the average acreage expected to be mined in the Peace River Basin in 2003-2027 is much less than the average acreage expected to be reclaimed, the average decrease in stream flow at the two locations is expected to be less than in the
baseline period: 33.15 cfs at Arcadia; and 18.12 cfs at Charlotte Harbor. Dr. Garlanger labeled the differences as cumulative impacts of increase in average flow.
It seems clear that the number of acres mined but not yet reclaimed in the Peace River watershed in the future will not exceed the levels measured in the early 1990s. A comparison of land uses in the year 2000, and projected land uses in the year 2025, based upon publicly available documents, would indicate that the acreage being utilized for active phosphate mining areas will be reduced by approximately 40,000 acres from 2000 to 2025. IMC's other evidence would indicate that the area captured by phosphate mining in the Peace River Basin is expected to increase from approximately 28,000 acres in 2000, to approximately 41,000 acres in 2010, before dropping to approximately 35,000 acres through 2020, and declining further to approximately 30,000 acres in 2025. In the Horse Creek sub-basin, IMC expects the area captured by phosphate mining to rise steadily from approximately 8,000 acres in 2000, to approximately 23,000 acres in 2010, before dropping to approximately 20,000 acres in 2015, and remaining at that level until after 2020, when it will decline again to approximately 15,000 acres in 2025.
While called a "cumulative impacts" analysis,
Dr. Garlanger's analysis actually compares flow impacts from mining during 1978-2002 with expected impacts during 2003-2027.
It does not examine the cumulative impact of phosphate mining and reclamation beginning in 1978. As such, the analysis shows the effects of ongoing reclamation and a decline in "capture area" within the Peace River Basin. It also shows the effects of an increase in "capture area" in the Horse Creek sub-basin.
According to Dr. Garlanger's analysis, it would not appear that future phosphate mining and reclamation activities would have an adverse impact on water quantity at any point in the Peace River basin. Similarly, the relatively minor flow increases predicted would not be anticipated to have any adverse water quality implications and, in particular, would not measurably affect the freshwater/salt water interface in Charlotte Harbor.
By using a single "maximum capture rate" for all mining since 1978, Dr. Garlanger's analysis did not account for higher unit rates of runoff in the Lower Peace River Basin due to different soil conditions than in the Upper Peace River Basin.
As more mining moves south, the actual "maximum capture rate" will increase, and more runoff will be lost due to capture per acre mined than Dr. Garlanger's analysis predicts. According to Mr. Davis the actual capture rate for future mining may well 50 percent greater, or even twice, the average capture rate assumed by Dr. Garlanger for purposes of his analysis. (T. 2149, 2192).
As indicated, Dr. Garlanger's cumulative impacts analysis only addressed flow. It did not address the cumulative impacts from the loss of other wetland functions, fish and wildlife habitat functions. In addition, cumulative impacts from the loss of first-order streams might be significant. The evidence was that approximately 20 percent of the first-order streams in the Horse Creek sub-basin are in areas where phosphate mining activities were said to be expected from 2003-2027.
Urban areas will increase by approximately 220,000 acres between 2000 and 2025. Dr. Garlanger also considered the potential impact of these and other types of development on stream flows. Rigorous analysis of this issue was not undertaken because residential, commercial and agricultural developments generally have a tendency to increase stream flow (although some agricultural developments might decrease stream flow somewhat).
Rule 62C-16.0051 – Reclamation Requirements3
Soil Zone
The proposed reclamation in the Modified CRP complies with the soil zone requirement in Rule 62C-16.0051(3) requiring good quality topsoil or other appropriate growing medium.
Restoration
Rule 62C-16.0051(4) requires that wetlands disturbed by mining operations be restored acre-for-acre, type-for-type. Rule 62C-16.0021(15) defines "restoration" to mean:
"recontouring and revegetation of lands in a manner, consistent with the criteria and standards established pursuant to this chapter, which will return the type, nature, and function of the ecosystem to the condition in existence immediately prior to mining operations."
Acre-for-Acre, Type-for-Type
For purposes of Rule 62C-16.16.0051(4), Florida Administrative Code, DEP relies upon Level II of the FLUCFCS system to determine whether wetlands are being replaced "acre- for-acre, type-for-type." See Manson Jenkins Final Order, Ruling on Exception V. It appears that, in Manson Jenkins, FLUCFCS Level II distinguished between herbaceous wetlands and forested
wetlands to determine compliance with the type-for-type requirement of Rule 62C-16.
In this case, IMC proposes to replace 478 acres of Altman Tract herbaceous marsh with 865 acres of herbaceous marsh after reclamation on the Tract. As previously found, there may actually be a little more herbaceous marsh on the Tract than IMC mapped (i.e., some of the erroneously mapped improved pasture). But it is clear that IMC is proposing more herbaceous marsh for reclamation than now exists. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase herbaceous marsh acreage on the total 46,533 acres covered by the Modified CRP.
As for forested wetland, IMC proposes to reclaim with
70.5 Altman Tract acres versus 38 acres now on the Tract. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase forested wetland acreage on the total 46,533 acres covered by the Modified CRP.
Under FLUCFCS Level II, each type of forested wetlands has its own code: wetland hardwood forests are code 610; wetland coniferous forests are code 620; and wetland mixed forests are code 630. Under code 620 (wetland coniferous forest), IMC does not plan to replace the half acre it mapped on the Altman Tract in its reclamation plans for the Altman Tract. However, as to the total 46,533 acres covered by the Modified CRP, 213 acres of wetland coniferous will be replaced by 394 acres
post-reclamation.
The 4.3 acres on the Altman Tract mapped by IMC as FLUCFCS 510 (Streams and Waterways) are not being replaced "acre- for-acre, type-for-type." Citing BOR 3.3.1.1, IMC and DEP take the position that replacement is not required because these are agricultural ditches which are less desirable wetland types than the herbaceous marshes that are to replace them. Actually, the so-called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. Some provide beneficial functions of first-order streams. Some provide fish habitat at
times. In addition, BOR 3.3.1.1 does not apply to Rule 62C- 16.16.0051(4).
IMC's and DEP's treatment of FLUCFCS Code 510 in the Modified CRP is confusing. In the review process, DEP asked for an explanation as to why IMC mapped 224 acres as code 510 but only proposed to reclaim 9 of them. In a response, IMC stated that there were 209 acres of FLUCFCS code 510, that "193 acres are manmade features which should not be counted on an acre for acre, type for type, due to these being agricultural ditches for drainage of crop/pastureland. The remaining 16 acres are acre for acre, type for type and mitigated for in the post reclamation plan as FLUCFCS 510 acreage." The Modified CRP indicates that, of the total 46,533 acres covered by it, 200 acres are FLUCFCS code 510 and that there will be 11 acres of FLUCFCS code 510 post-reclamation. The Modified CRP also includes a table of the 5,077 acres covered by it that are not yet disturbed. The preface to the table states: "However, some enhancement work to be conducted in the non disturbed land will result in changes in FLUCFCS acreage from pre-mining to post reclamation." The table indicates that 10 acres of these "non-disturbed lands" are FLUCFCS code 510 pre-mining and that there will be 10 acres of FLUCFCS code 510 post-reclamation. Due to the confusion, reasonable assurances were not given that "streams and waterways" will be replaced "acre-for-acre, type-for-type."
The Modified CRP also makes reference to FLUCFCS code
560 ("slough waters"). No sloughs were mapped on the Altman Tract. The slough between the box culverts under SR 37 and the Central Marsh were mapped as freshwater marsh (FLUCFCS code 641). But the Modified CRP indicates that, of the total 46,533 acres covered by it, there were 12 acres of slough waters pre-mining and that none of them are to be replaced post-reclamation. The Modified CRP's table of "non-disturbed lands" does not include any FLUCFCS 560 slough waters.
Notwithstanding the confusion, it seems clear that the slough-like area between the box culverts under SR 37 and the Central Marsh should not be eliminated. To do so would exacerbate the elimination of slough waters under the Modified CRP.
(b) Nature and Function
As indicated, the other part of the definition of "restoration" in Rule 62C-16.0021(15) speaks to returning "the nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." See also Section 378.207(1), Florida Statutes (requiring "return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining"; and Section 378.203(10), Florida Statutes (requiring restoration to "maintain or improve the water quality and function of the
biological systems present at the site prior to mining"). In this case, IMC did not prove that its reclamation will meet these restoration requirements.
Design
The reclaimed wetlands at the Tract will comply with the general design requirements of wetlands set forth in Rule 16C-16.0051(5). Among other things, the proposed reclaimed wetlands have been designed to provide aquatic wetlands and wildlife habitat values, maintain downstream water quality by preventing erosion and providing nutrient uptake; and reclaimed water bodies are to incorporate a variety of emergent habitats, a balance of deep and shallow water, and fluctuating water levels. (T. Durbin at 1471, 1542-44). However, as previously found, post-reclamation water levels will be generally deeper, hydroperiods will be longer, and zonation will be reduced, such that the nature and functions of existing wetlands will not be maintained.
Water Quality
As required by Rule 16C-16.0051(6), applicable water quality standards will be met for waters leaving reclaimed wetlands on the Tract and wetland water quality on the Tract will support fish and other wildlife.
Flooding and Drainage Patterns
As required by Rule 16C-16.0051(7), all necessary steps have been taken to eliminate the risk of flooding on lands not owned by the applicant. In addition, general drainage patterns would be restored. Watershed boundaries will not be crossed, and post-reclamation topography would allow interconnectivity between at least some wetlands created on the Tract during at least some periods of rain.
Revegetation Requirements
The Draft Permit requires that reclaimed wetlands and uplands on the Tract comply with the revegetation provisions (including minimum cover requirements) as required by Rule 16C- 16.0051(9). (IMC Ex. 12, Sp. Cond. 14C).
Mitigation Measures
As required by Rule 16C-16.0051(10), the modified CRP identifies measures designed to offset fish and wildlife values lost as a result of mining operations. Special programs to restore, and/or reclaim particular habitats, especially for endangered and threatened species, have been identified. However, as previously found, reasonable assurances were not given that these measures will succeed in offsetting fish and wildlife values lost as a result of mining operation.
Reclamation Schedules
Reclamation is proposed to proceed in a fashion that will comply with the schedules contained in Rule 16C-16.0051(11). (IMC Ex. 12, Sp. Cond. 11).
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Standing
Charlotte County is a political subdivision of the State and filed a verified petition asserting that the activities to be permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. However, Section 403.412(5), Florida Statutes (2002), no longer gives the County standing to petition to challenge proposed agency action under Section 403.412(5).
"[C]ounties in this state have various statutory duties and responsibilities with respect to planning for water management and conservation, sufficient to give them an interest in any activity of the state or of the agencies of the state as may appear to affect those duties and responsibilities."
Osceola County v. St. Johns River Water Management District,
486 So. 2d 616 (Fla. 5th DCA 1986). In this case, Charlotte County has a substantial interest in protecting the quantity and timing of flows, water quality and environmental health of the Peace River, which is cognizable under the permitting criteria applicable to the subject permit applications. As a result, the County has substantial interests that will be affected by the proposed agency action, and as such, has standing pursuant to Sections 120.52(12)(b) and 120.569(1), Florida Statutes. See also Section 403.412(5)-(6), Florida Statutes (2002).
The Mullins Family also has demonstrated their substantial interests will be affected by the proposed agency action. The rules require IMC to own or obtain the consent of the owners sufficient to construct and operate a surface water management system, and preserve and restore the wetlands on the Altman Tract. See Rules 62-330.200(3) and 40D-1.6105(1)
and (3). Additionally, Specific Condition 20 of the Draft Permit contemplates that part of the Altman Tract covered by the Mullins Family's property interests will be subject to a conservation easement, which purports to interfere with their ability to explore and mine for minerals, their ingress and egress, and their ability to construct roads and other facilities. The Mullins Family has not consented to IMC's proposed activities or the proposed conservation easement.
Protection of Mullins Family's interests from interference by IMC's proposed activities are cognizable interests under the applicable permitting criteria. Therefore, the Mullins Family has established an immediate injury-in-fact sufficient to allow them to participate as parties, and they have standing to challenge the proposed agency action. See Gregory v. Indian
River County, 610 So. 2d 547 (Fla. 1st DCA 1992); Royal Palm Square Association v. Sevco Land Corp., 623 So. 2d 533 (Fla. 2d DCA 1993); Town of Palm Beach v. Dept. of Natural Resources, 577 So. 2d 1383, 1388 (Fla. 4th DCA 1991).
Burden of Proof
As the applicant, IMC has the burden of showing by preponderance of the credible and credited evidence that it is entitled to the approvals at issue here. Department of
Transportation v. J.W.C. Co., 396 So. 2d 778, 789 (Fla. 1st DCA 1981). In the context of this proceeding, IMC must provide reasonable assurances to the DEP that the applicable conditions for issuance of the Draft Permit and the Modified CRP have been satisfied. If IMC makes a prima facie showing of reasonable assurances, the burden shifts to Petitioners to present evidence of equivalent quality. J.W.C. Co., 396 So. 2d at 789.
Petitioners cannot carry the burden of presenting contrary evidence by mere speculations concerning what "might" occur. Chipola Basin Protective Group, Inc. v. Department of
Environmental Regulation, 11 FALR 467, 480-81 (Fla. DEP Dec. 30,
1988).
"Reasonable assurances" means "a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Department of
Transportation, 700 So. 2d 113, 117 (Fla. 2d DCA 1997).
IMC must provide reasonable assurances which take into account contingencies that might reasonably be expected, but an applicant is not required to eliminate all contrary possibilities, however remote, or to address impacts which are only theoretical and not reasonably likely. Hoffert v. St. Joe Paper Co., 12 FALR 4972, 4987 (Oct. 29, 1990); Alafia River Basins Stewardship Counsel, Inc. v. Southwest Florida Water
Management District, 1999 WL 1486358, *28 (Fla. Div. Admin. Hrgs. 1999); Crystal Springs Recreational Preserve, Inc. v. Southwest Florida Water Management District, 2000 WL 248392, *36 (Fla. Div. Admin. Hrgs. 2000).
Competent, substantial evidence based on detailed site plans and engineering studies, coupled with credible expert engineering testimony, is a sufficient basis for a finding of reasonable assurance. Hamilton County Board of County
Commissioners v. FDEP, 587 So. 2d 1378 (Fla. 1st DCA 1991).
Procedure
The County contends that DEP was not authorized to issue a WRP on Section 1 of the Altman Tract because no WRP application and fee was submitted. However, it is concluded that Section 373.1131, Florida Statutes, authorized this procedure.
The County also contends that IMC's ERP application must be denied because no notice of DEP's receipt of the application was published, as required by Rules 62-1.6105(6), 62-312.060(14), and 62-343.090(2)(k). Neither IMC nor DEP addresses this argument, which appears to have merit.
Permitting Criteria
Pursuant to Section 373.414(1), Florida Statutes, DEP may not issue the ERP unless IMC provides "reasonable assurance that state water quality standards . . . will not be violated
. . . ." IMC has provided reasonable assurance that state water quality standards will not be violated. See Findings 188-194, supra.
Pursuant to Section 373.414(1), Florida Statutes, an ERP applicant must provide reasonable assurance that the proposed activity "is not contrary to the public interest" based upon a balancing of the factors listed in Section 373.414(1)(a), and taking into account measures proposed by the applicant to mitigate adverse effects as contemplated by Section 373.414(1)(b). IMC has not provided reasonable assurance that
the proposed mining activities when mitigated by the proposed reclamation activities are not contrary to the public interest. See Findings 218-229, supra.
Chapter 378, Florida Statutes, and Rule 62C-16 establish standards for approval of phosphate mining reclamation plans. Phosphate mining reclamation undertaken pursuant to Chapter 378, Florida Statutes, is deemed to be sufficient mitigation if the reclamation maintains or improves the water quality and the function of the biological systems present at the site prior to commencement of mining activities. See Section
373.414(6)(b), Florida Statutes.
IMC has not established that the Modified CRP will meet all standards for approval of phosphate mining reclamation plans. See Findings 250-260, 264, supra. As a result, reasonable assurances were not given that mitigation is adequate under Section 373.414(6)(b) to offset the adverse impacts associated with proposed mining at the Altman Tract.
It has been held that the agency having final order authority has exclusive authority to determine the sufficiency of proposed mitigation; and findings related to the sufficiency of mitigation have been held to be essentially conclusions of law and not binding. See Save Anna Maria, Inc. v. Dept. of
Transp., et al., 700 So. 2d 113, 116 (Fla. 2d DCA 1997); 1800
Atlantic Developers v. Dept. of Environmental Reg., 552 So. 2d
946, 955 (Fla. 1st DCA 1989), rev. denied, 562 So. 2d 345 (Fla. 1990). However, a DOAH ALJ has authority to resolve "factual disputes on mitigation." Collier Develop. Corp. v. Dept. of Environmental Reg., 592 So. 2d 1107, 1109 (Fla. 2d DCA 1991).
As a result of the resolution of those factual disputes, it is concluded that IMC's proposed mitigation is insufficient.
Pursuant to Section 373.414(8)(a), Florida Statutes, DEP is required to "consider the cumulative impacts upon surface water and wetlands" of certain types of activities. Section 373.414(8)(b), provides that:
If an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, the . . . department shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a).
As found, IMC did not prove that mitigation proposed through the reclamation plan pursuant to Chapter 378, Florida Statutes, will offset adverse impacts. As a result, a cumulative impacts analysis would be superfluous. In any event, the cumulative impacts analysis performed by IMC only purported to address cumulative impacts on water quantity on the Altman Tract and downstream. It actually addressed the purported differences between those impacts in 1978-2002, compared to those impacts in 2003-2027. It also had other deficiencies. See Findings 233- 248, supra.
Pursuant to Section 373.413, Florida Statutes, an applicant for an ERP is required to demonstrate that the proposed activities will not be harmful to water resources and will not be inconsistent with the overall objectives of DEP. IMC has not provided reasonable assurance of compliance with each of the criteria contained in Section 40D-4, Florida Administrative Code, as well as the 1995 SWFWMD Basis of Review for ERP applications, as adopted by reference by DEP. See Findings 134-248, supra. For that reason, IMC has not demonstrated that the proposed activities at the Altman Tract will not be harmful to water resources and will not be inconsistent with the overall objectives of the DEP.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DEP enter a final order denying IMC's applications to mine and reclaim the Altman Tract.
DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
ENDNOTES
1/ As will be seen, like the proposed recommended orders submitted by IMC and DEP, the findings is this section include references to controlling rule provisions.
2/ At hearing, ruling on the admission of Charlotte Exhibit 161 was reserved pending a demonstration by IMC that IMC was prejudiced by its omission from the County's prehearing exhibit list (T. 2811-2816). IMC made no demonstration of prejudice, and the exhibit has been admitted into evidence.
3/ See Endnote 1.
COPIES FURNISHED:
Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert, P.A.
101 East Kennedy Boulevard, Suite 3400 Post Office Box 2350
Tampa, Florida 33601-2350
Francine M. Ffolkes, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Patricia A. Petruff, Esquire
Dye, Deitrich, Prather, Petruff & St. Paul, P.L. Post Office Box 9480
Bradenton, Florida 34206-9480
Roger W. Sims, Esquire Holland & Knight, LLP
200 South Orange Avenue, Suite 2600 Orlando, Florida 32801-3453
Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
120
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 12, 2003 | Agency Miscellaneous | |
| Sep. 15, 2003 | Agency Final Order | |
| Aug. 01, 2003 | Recommended Order | Based on findings as to disputed facts, phosphate mine reclamation plan did not maintain or improve biological functions of wetlands impacted (and had other defects); mitigation for wetland impacts was insufficient; other required assurances not given. |
