STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VICTOR W. LAMBOU, TONY ) CARTLIDGE, and RICHARD JOHNSON, )
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Petitioners, )
)
and )
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SIERRA CLUB, INC., )
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Intervenor, )
)
vs. )
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondent, )
)
and )
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PANFLA DEVELOPMENT, LP, )
)
Intervenor. )
Case No. 02-4601
)
RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, on March 19-21, 2003, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Andrew Jubal Smith, Esquire
12542 Waterfront Drive
Tallahassee, Florida 32312
For Respondent: Larry Morgan, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 For Intervenor Sierra Club, Inc.:
Curt G. Levine, Esquire Mutch & Levine, P.A.
2114 Northwest 40th Terrace, Suite A-1 Gainesville, Florida 32605
For Intervenor Panfla Development, LP:
Robert A. Routa, Esquire Post Office Box 6506
Tallahassee, Florida 32314-6506 STATEMENT OF THE ISSUES
Whether Petitioners have standing to initiate this proceeding? Whether Sierra Club has standing to intervene? Whether the Restoration Plan, a part of a Consent Order entered between the Department of Environmental Protection and J. Don Nichols, is a reasonable method of restoring the Tide Creek Landing site following an unpermitted and highly destructive alteration of the site by Intervenor Panfla?
PRELIMINARY STATEMENT
On December 2, 2002, the Department of Environmental Protection (the "Department" or "DEP") filed at the Division of Administrative Hearings a request for assignment of an administrative law judge to a matter that was the subject of an amended petition for an administrative hearing. The Amended
Petition challenges a consent order entered between J. Don Nichols on behalf of Panfla, Inc., and the DEP. Mr. Nichols was not named as a party to the proceeding by the Amended Petition.
The case was assigned Case No. 02-4601 by the Division of Administrative Hearings. Judge Charles A. Stampelos was designated as the administrative law judge to conduct the proceedings. On December 9, 2002, Judge Stampelos issued an Order of Pre-Hearing Instructions and set final hearing for February 3, 2003. On the same day, an order was issued pursuant to Rule 28-106.109, Florida Administrative Code, that J. Don Nichols be notified of the proceeding by DEP and be given an opportunity to be joined as a party of record. The following day, December 10, 2003, Panfla Development, LP, was allowed to appear as an Intervenor in the proceeding when its petition to intervene was granted. Mr. Nichols, the party who entered the Consent Order, was later described by Panfla's counsel as the "responsible family member." (Tr. 32).
During pre-hearing proceedings, the final hearing was continued until March 17, 2003. On the twentieth day before hearing was to commence, Sierra Club's Petition to Intervene was filed. It was the last day under Rule 28-106.205, Florida Administrative Code, for the filing of a petition to intervene absent good cause for a later filing. The Petition was denied without prejudice to file an amended petition by March 7, 2003.
An Amended Petition to Intervene was timely filed. After consideration of it and responses in writing by DEP and Panfla, the petition was granted subject to proof of the Club's standing at hearing. In the meantime, during argument on a Motion to Dismiss the Amended Petition to Intervene, an oral request was made to re-set the final hearing to commence on March 19, 2003. The Motion to Dismiss the intervention was denied, but the request to commence the hearing two days later than scheduled was granted.
Final hearing commenced on March 19, 2003, and took the better part of three days. At the outset of the hearing, leave was granted to Petitioners to submit the testimony of
Bruce Means, Ph.D., by way of a deposition as a late-filed exhibit. Petitioners' other witnesses presented testimony at the hearing: Howard W. Kessler, Wakulla County Commissioner;
Victor W. Lambou, an expert in wetlands systems; Robert J. Livingston, an expert in aquatic systems and wetland systems; Charles Lynn Coultas, Ph.D., an expert in soil science;
Anne Edemiller Rudloe, Ph.D., an expert in marine aquatic systems, including endangered species such as sea turtles; Richard L. Johnson, Petitioner; and Anthony C. Cartlidge, Petitioner. Petitioners' Exhibits 1-12, 13A, and 13B were all admitted. The deposition of Dr. Means, whose expertise was stipulated as being in fire ecology and wetlands ecology, was
filed on April 24, 2003. With the deposition, Petitioners offered two exhibits, marked for identification as Petitioners' Exhibits 14 and 15. Panfla offered four exhibits marked as Panfla Exhibits 1-4. The Panfla exhibits used during the Means deposition have since been remarked as Panfla Exhibits-to-Means Depo. 1-4 to distinguish them from Panfla exhibits offered during the final hearing. The Means deposition, Petitioners' Exhibits
14 and 15, and Panfla Exhibits-to-Means Depo. 1-4, are all hereby admitted into evidence.
Sierra Club called Commissioner Kessler and Petitioner Cartlidge as its own witnesses. It also called Jack Rudloe, expert in marine biology and marine wildlife with a specialty in Kemp's Ridley sea turtles; and Chad Hanson, Board Member of the Florida Chapter of the Sierra Club. Sierra Club's one exhibit, marked for identification as Sierra Club Exhibit 1, was admitted into evidence.
The Department called one witness, John David Tobe, Ph.D., an expert in plant physiology, ecology and Florida wetlands. The Department offered one exhibit, Dr. Tobe's Curriculum Vitae. It was marked for identification as Respondent's No. 1 and was admitted into evidence.
Intervenor Panfla Development LP, called to the stand Randall L. Armstrong, an expert in aquatic and estuarine ecology, and Mark Oliver Friedemann, an expert in ecology and wildlife
biology. Panfla offered 20 exhibits marked for identification sequentially as Panfla Nos. 1-20. All were admitted into evidence.
With the exception of the Sierra Club, the parties filed their Proposed Recommended Orders by May 5, 2003. Sierra Club's Proposed Recommended Order was filed on May 7, 2003. This Recommended Order follows.
FINDINGS OF FACT
Tide Creek
For the past three thousand years, if not since the last Ice Age Melt, Tide Creek has meandered ox-bow fashion between two bay systems that join the salt waters of the Gulf of Mexico. The creek today, with the appearance from a bird's eye view of a delicate ribbon, continues to tie together the two bodies of water at the eastern edge of Wakulla County: the Dickerson/Levy Bay system to its north and Ochlockonee Bay to its south.
As observed through modern aerial photography, the Tide Creek Area is a drainage basin: a system of uplands and wetlands composed of associated woodlands, swamps, and marshes that grade into the bays. It is an area with a complex and fragile ecology that from its beginning thousands of years ago depended upon fire.
Fire Ecology
Fire is essential to the ecology in the stretch of land from the middle of Florida's Big Bend in Tallahassee through the state's panhandle to Pensacola, an area that contains more "plants and animals and ecosystems . . . than you'll find in any other similarly-sized area in the United States or Canada . . .". (Deposition of Bruce Means, Ph.D., at 6)
Prior to the settlement of Florida by the Spanish, the area around Tide Creek was subject to regular and periodic burning as part of a natural fire regime. Fires would commence in the pine environment of what is now southern Georgia and sweep across North Florida following the grade down to the coastal wetlands.
The regime's burning coincided with the lightning season, that is, from mid-April until the middle of summer. With the production of cattle introduced first by the Spanish settlers, however, it was discovered that burning in winter produced new growth that cattle needed when nutritious forage was otherwise scarce. The practice of cattle grazers continued during the British colonial period. After the Revolutionary War, cattle grazers colloquially known as "crackers" set fire to forested areas and grazing sections of uplands regularly in the winter so that burning occurred earlier in the year than under
the natural fire regime. Cattle thrived. Effects on the ecology went unreported by mankind.
In the late 1930's and '40's, foresters "got the notion that all fire under all conditions was bad." (Means Deposition,
p. 12.) Laws were enacted to stop controlled burning practices used by cattle grazers. An unanticipated consequence of the control of fire was that the quail population dropped dramatically. Research revealed that without fire in the early part of the growing season, many ground cover plants that lived in both longleaf/wiregrass ecosystems and wetlands down-slope of uplands do not flower and produce viable seed upon which the ecology (including the quail) depended.
Studies revealed furthermore that the quail population would return and the ecology could be restored if fire were re- introduced into the system. The area could not be allowed to return to the natural fire regime, of course, because of the presence of the human population and certain destruction of homes and other structures by a natural fire regime. Roads, towns, and agricultural fields, moreover, would impede the natural flow of fire across the landscape. Since the natural regime could not be allowed, prescribed fire (human-created fire) would be necessary in any effort to restore conditions that preceded the interruption of the natural regime. It would be necessary to
continue prescribed fire, moreover, to sustain the ecosystem, its plants and wildlife.
Wildlife in the Tide Creek Area
The Tide Creek Area, particularly Dickerson Bay, is inhabited and visited by numerous species of wildlife, some endangered or threatened by the impacts of mankind. In addition to the movement of manatees and Kemp's Ridley sea turtles, the area benefits from constant activity of the native fauna. Bottle nose dolphins, Tursiops truncatus, charge mullet toward the marsh. Vast herds of fiddler crabs, dominated by the species, Celuca pugilator, or the sand fiddler crab, feast on diatoms and plankton left by the receding tides of their habitat: the fragile niche between land and sea. Blue crabs emerge from the mud of the flats exposed by the tide to prey on the fiddler crabs as well as periwinkle snails that ride the marsh grass.
For the blue crab, the area is a veritable banquet. In addition to the fiddler crab and the periwinkle snails, there are many micro-crustaceans that nourish the blue crab as well as countless amphipods, isopods and multitudes of small fish in the bays. In the Tide Creek Area, as it receives, the blue crab also gives. It serves as a delectable food source for humans and as a significant source of food for the endangered Kemp's Ridley sea turtle.
The many other forms of life in the Tide Creek Area all do their part to maintain the ecological balance. Barnacles on the marsh grass and oysters at the edge of the grass produce sperm, egg and larvae. Broadcast into the water, they serve as food for tiny killi fish. The food chain graduates from the killi to many other species of wildlife especially fish and bird life. The chain includes silversides, wading birds, and water fowl, trout, flounder, pompano, and the numerous other species of fish in the Gulf, some of which are hawked from just below the surface of waters by sharp-taloned birds like the osprey. Grass and white shrimp are plentiful in the area. White shrimp that enjoy the brackish water less saline than the open Gulf waters have been observed near the coast so thick that when a boat comes through the bays close to shore, the shrimp shower out of the water. Some of the shrimp land on marsh banks, easy prey for birds which, as do freshwater and marine ecologists, find the Tide Creek Area to be an "incredibly rich, diverse and productive place." (Tr. 304)
Productivity
The productivity of the Tide Creek Area begins at a microbial level among inorganic compounds created from organic detritus in the waters of the state. These compounds are used by plant life at the base of a food chain that sustains the entire ecology.
Among the marsh grasses in the two bay systems connected by Tide Creek, micro-organisms at the base of the food chain are fed by the detritus from grass beds offshore. But the minute living creatures propagate in wetlands where the sawgrass, Juncus, and other wetland vegetation together with leaf litter comprise a favorable reproductive environment. In addition to serving as the breeding ground for the micro-organisms, the wetlands, just as the sea grasses offshore, are a source of vegetative detritus essential to the functioning of the ecology. The wetlands that are brackish marshes, moreover, are "one of the most productive plant communities in the world." (Tr. 603)
Particulate matter is flushed from the wetlands by rains and carried into other zones that transition to the bays. Some of this matter is essential to highly specialized ecological function that originate in the freshwater ponds of the area's wetlands, particularly those with karstic features that make the area a matchless, natural "treasure." (Tr. 307) For the area's productivity, these ponds, in large measure, are the source.
The Source
System analysis employing physical, chemical, biological, and oceanographic methods has been used to investigate the basis for the high productivity in this coastal region. Among other revelations, it has revealed the identification of the nutrients at a microbial level, the manner
in which the nutrients are moved through the system, and how micro-organisms transfer certain of the microbial nutrients in their organic form into an inorganic form to be utilized by plants.
The analysis has demonstrated that the interconnectedness of the system is essential to the complexity of its productive function for flora and fauna. The function begins in ponds, among them the tidal ponds that connect to the brackish waters in the bays through a series of marshes and swamps. From the freshwater marsh to the salt marsh to the bays and the open waters of the Gulf, all along the way, productivity is stirred. This productivity is:
dependent upon a detritus-based food chain, that is, a food chain in which the [most common large omnivorous marine organisms in the area, blue crabs] . . . are feeding on smaller organisms that ultimately are deriving their nourishment from the detritus that's coming out of the salt marshes and also [out] of . . . intermittently flooded coastal ponds.
(Tr. 207) To put it most directly, the coastal ponds are a source upon which the entire ecological system depends.
Among the ponds that served as the source of the productivity of the Tide Creek Area were those in the wetlands now governed by the Consent Order: wetlands within the Panfla development site.
The Site
The site, Tide Creek Landing, is owned by Panfla Development, LP, with Panfla GP, LLC, as general partner and
J. Don Nichols, as manager. Adjacent to the east side of U.S. Highway 98, it is located in Wakulla County, in Section 1, Township 6 South, Range 2 West, not far north of Ochlocknee Bay and Mashes Sand Road.
The south and east side of the property includes and borders the salt marsh adjacent to Tide Creek, a Class II water of the state. Through the connection between Dickerson/Levy Bay to the north and Ochlockonee Bay to the south provided by Tide Creek, the waters of these bays are shared and exchanged. The two bay systems directly join the Gulf of Mexico.
Prior to alteration of the site by Panfla, the site contained three karst ponds surrounded by freshwater wetlands: areas that are saturated or inundated long enough with water to produce a prevalence of hydrophytic vegetation. Florida wetlands include marshes, swamps and cypress domes and "generally . . . areas that are dominated by slash pine, longleaf pine with ground cover of saw palmetto, . . . a very common landscape . . . in Florida." (Tr. 598)
"[T]here should be no argument that [the three ponds were] karst ponds . . . solution ponds . . . produced in a coastal situation." (Tr. 596)
Two of the three karst ponds on-site were destroyed by the alteration: one pond was a jurisdictional wetland connected to the waters of the State; the other was a non-jurisdictional wetland as part of an isolated wetland system. The largest pond of the two, approximately 1.9 acres of jurisdictional wetlands, was connected to the waters of the State through herbaceous wetlands and hydric pine flatwoods. The connection continued to adjoining off-site salt marshes connected by mosquito canals directly to Tide Creek and Levy Bay, making the ponds part of wetlands subject to the jurisdiction of the Department.
In its altered state, the pond is part of a lake that remains a jurisdictional wetland.
The wetlands surrounding the largest pond were herbaceous and comprised the littoral zone of the pond. This littoral zone increased and decreased in size with the water level of the pond and the amount of rainfall. The slope of ground surface of the littoral zone was not steep; it was extensive laterally and contained plants such as Spartina bakeri
and Juncus.
The area to the north of the jurisdictional pond comprises both wetland systems: the herbaceous wetland that included the littoral zone, and hydric pine flatwoods that continued off-site. At various times, the water of the pond flowed north through the herbaceous wetland, through the hydric
pine flatwoods on the site and off the property into the salt marsh wetlands and on toward the bay, ultimately reaching Dickerson/Levy Bay.
Just as the non-jurisdictional pond, the jurisdictional pond was a karstic feature, that is, it sat above a limestone sub-strata and had formed over time as the limestone dissolved. Similar to other limestone-dominated ponds in the area formed with the dissolution of the limestone, the karst ponds on the site were shallow with a gently sloping bottom.
The flow of water into the jurisdictional karst pond from the pine flatwood forest and through the herbaceous littoral zone happened by a process know as anastomose. At hearing, Robert J. Livingston, Ph.D., described the function provided at the site of anastomose.
Anastomose
The jurisdictional pond system in its original form on the site was interrelated with the groundwater system. The water in the pond rose and fell with the water table.
The functioning of the jurisdictional system was dependent on continuous changes in the water column as well as in light. The changes produced aquatic flora that underwent constant change themselves.
The production of the nutrients begins with the rains.
When a flush of water caused by rains moves through the system it
washes organic litter and various nutrients into the system by spreading through all of the interrelated plant matter and microorganisms. This is the process of anastomose. In very diverse fashion, the water burrows through the ground vegetation and moves into the ponds. As it does so, it acts like a tertiary sewage treatment plant in taking up the nutrients, breaking them down and making them available without an imbalance that would pollute the ponds. The organic phase of nitrogen, carbon, and phosphorus are then transformed by the microbiota, largely in the sediments of the pond, into various forms of inorganic nutrients, such as ammonia, nitrites, nitrates, and orthophosphate. The inorganic nutrients so transformed are used by the plant communities, both submerged plants, microbial and macrobial, and emergent vegetation.
The nutrients generated in the ponds travel out of the ponds as part of the exchange of waters. They are regenerated in the marsh systems and eventually reach the bay where they contribute to the growth of offshore sea grasses.
There is a connection between the nutrients' formation, their change into inorganic forms worked by microbes in the waters of the ponds and other waters of the state, and the use of those forms by the vegetation traced from one wetland to another and ultimately to the bays.
Nutrients that form in ponds may or may not be productive for a system. The ponds must be part of the system that includes the bay or marine waters by way of connection. If ponds are isolated wetlands, the nutrients formed in them will not have positive loading features because they cannot get from the pond to the salt water offshore. The ponds must be connected to the entire system by way of the creeks leading into the bays and the estuaries along the coast for the nutrients to function positively throughout such a system.
Such a connection existed between the bays and the jurisdictional pond that was on-site prior to Panfla's alteration. The pond was connected to the salt water of the bays by way of wetlands and Tide Creek. When nutrients formed in the ponds reached the bay, they were utilized not only by plants but by shellfish, oyster, blue crabs, shrimp, and the various fishes in a very complex trophic organization.
Dr. Livingston visited the site at issue in this proceeding once. The visit, on February 27, 2003, for "[a] couple of hours" (Tr. 165), was prior to the completion of restoration activities. During the visit, Dr. Livingston did not take any measurements on-site.
Dr. Livingston does not know, moreover, how often waters were exchanged between the ponds that existed on the Panfla site and the bays. Nor did Dr. Livingston do any studies
that would indicate how much of a reduction in the exchange would need to occur before reduction of the productivity in the marsh to the north of the site would occur.
To scientifically demonstrate the impact of detritus loading from the karst ponds that preceded Panfla's alteration a scientist:
would have to . . . do a series of studies looking at the seasonal abundance and distribution of species of microorganisms, such as photoplankton, zooplankton. [The scientist] would have to monitor the populations of detritus-feeding organism, particularly [with regard to] recruitment of juvenile blue crabs [and] . . . small oysters.
(Tr. 214).
To assess the impacts of an interruption in nutrient loading at this side, baseline information would be needed. As Dr. Rudloe explained at hearing, "you would have to have an experimental design that had been implemented prior to the alteration so that you would have data of what kind of organisms are there, . . . the nutrient levels in the water, both fresh water and salt water, . . . prior to any changes on the
site. . . ." (Tr. 215) Only then would one be able to know what "might or might not [have] occur[red] after the alteration." Id.
According to the evidence of record, studies of seasonal abundance, data produced by monitoring and comparative data is not available for the site at issue in this proceeding.
Nonetheless, "it is reasonable to assume, scientifically, that a site that has been altered will not function in the same way that it did. . . ." (Tr. 219)
In other words, for all that is unknown with regard to the quantification of the impact of nutrient loading from the site at issue both before and after the site's alteration, there remains that which is known. It is known that exchanges of waters involving nutrient loading took place prior to the alteration and that the exchanges were part of the cycle of productivity. It is also known that the capability for exchange was interrupted and the opportunity for this essential exchange of waters on the site, even after the restoration, is minimal. Or in Dr. Livingston's words, that opportunity is "limited, severely limited . . . in a major flood, like [one caused by] a
hurricane, you might get something, but [that] would be limited." (Tr. 176)
Interruption of the intermittent exchange of waters essential to nutrient loading at the base of the food chain necessary for the functioning of the ecology of the Tide Creek Area occurred at the site that is subject to the Consent Order under de novo review in this proceeding. It occurred because of development activities undertaken by Panfla for its subdivision project.
A Project Gone Wrong
Owned by Panfla Development, LP, with Panfla GP, LLC, as General Partner, and J. Don Nichols as Manager, Tide Creek Landing is a subdivision intended for single-family residences. It has 49 lots located on 58.84 acres of land.
During the development of Tide Creek Landing, a contractor working for Panfla engaged in the alteration of some of the jurisdictional wetlands and the jurisdictional pond on the property by filling them. The alteration had not been permitted by the Department.
At the behest of Dr. Howard Kessler, then a citizen, now a Wakulla County Commissioner, among others, the Department investigated the site after the alteration. It determined that Panfla had committed a number of violations of the law. They related to domestic wastewater collection system permitting and stormwater treatment system permitting, and included dredge and fill violations.
The communities on the site, post-alteration, are described as follows:
Upland communities on the site consist primarily of pine flatwoods and coastal scrub. Wetland communities fall into four
(4) main categories: saltmarsh, freshwater marsh, freshwater pond and hydric pine flatwoods.
The saltmarsh communities are primarily along the eastern and northern boundaries, and are
dominated by Juncus sp. and Spartina sp. Only very minor impacts have occurred to the saltwater marsh, mainly associated with construction of a stormwater berm along the eastern shoreline. These impacts are generally only a few square feet in size and
are primarily related to fill "sloughing off" into adjacent marsh from the areas of initial fill.
* * *
The freshwater marsh communities are generally dominated by sawgrass (Cladium jamicense), with a canopy in the ecotone around the marsh consisting of primarily slash pine (Pinus elliottii), swamp bay (Persea palustris) and sweetbay (Magnolia virginiana). Ground cover consists of primarily gallberry (Ilex glabra), bracken fern (Pteridium aquilinium) and yaupon holly (Ilex vomitoria).
The hydric pine flatwoods consist of the species noted above in the freshwater marsh ecotone, plus the following: red maple (Acer rubrum), cinnamon fern (Osmunda cinnamomea), wild olive (Osmanthus Americana), eastern red cedar (Juniperus virginiana), wax myrtle (Myrica cerifera) and saw palmetto (Serenoa repens).
The freshwater pond is dominated by Spartina (Spartina bakeri),with occurrences of sawgrass, Sagittaria (Sagittaria spp.), Juncus (Juncus spp) and Fimbristylus (Fimbristylus castanea).
(Emphasis in original.) Petitioner's Ex. 6, Consent Order, "Tide Creek Wetland Restoration Plan," Ex. I to the Consent Order, pgs. 1-2.
The Department's investigation and determinations led to orders that Panfla stop construction. The Department's
activity culminated in an order fully and finally executed on September 27, 2002, by Mr. Nichols, Panfla's manager of the site, and the Department. That order is the subject of this proceeding: the Consent Order.
The Consent Order
In addition to making findings related to violations of domestic wastewater collections system permitting and stormwater treatment system permitting in the Consent Order, the Department made the following finding:
An inspection by Department personnel on January 17, 2002, revealed that the Respondent had filled an area of 4.37 acres of land which included a salt marsh fringe and hydric pine flatwood areas. Also 4.5 acres of a jurisdictional pond and its sawgrass fringe were dredged and filled. The activity was conducted on the above-described property on wetlands contiguous with Dickerson Bay, a Class II Waters of the State, as defined by Florida Law.
Petitioners' Ex. 6, para. 4.
The findings led to the requirements of the Consent Order. J. Don Nichols, manager of the site for Panfla, was ordered to pay $65,444 for all of the violations. Included in the amount was $50,597 in civil penalties, and $1,000 for costs and expenses for "alleged dredge and fill violations of Sections 373.430, 403.161, F.S.[,] incurred by the Department during the investigation of this matter and the preparation and tracking of this Consent Order." Id., at paragraph 8.
The Consent Order divides the site into eight areas of wetland impact. This proceeding primarily concerns Areas 1, 2 and 3. Area 1 comprises 1.9 acres. The impact is described in an attachment to the Order as "[h]istoric pond; fill removal occurred; remains as a pond." Id., Exhibit I, p. 2. Area 2 comprises 3.9 acres. The impact is described as "[h]ydric pine flatwoods; filled." Id. Area 3 comprises 2.6 acres. The impact is described as "[h]istoric uplands/non-jurisdictional pond; currently pond." The description also contains a note: "Areas 1 and 3 involve dredging of an existing pond and creation of a new pond from uplands; a reconfigured pond remains. These areas will not be restored except for the littoral zone fringe. . . ." Id.
The Consent Order described the soils. In the wetland areas, where the groundwater table was found to be shallow, soils exhibited strong hydric characteristics. Vegetation had been removed by scraping the surface, leading to the determination that "[w]hile the upper horizon of the soils may have been disturbed, for the most part the hydric soils remain beneath the fill." Id., p. 3.
With regard to hydrology, the Consent Order determined that some dewatering occurred during the pond's excavation. When pumping ceased, however, the porous nature of the soils allowed surficial aquifer levels to return promptly to pre-disturbance
levels. No activities occurred that would have modified groundwater levels. The order concluded:
The fill has obviously disrupted the opportunity for surface water flow to the north during high water and flood conditions, but it is likely that groundwater flows beneath the fill area toward the wetlands to the north remain for the most part in the
pre-disturbance condition.
Id.
Based on the fact that hydric soils appear to remain beneath the fill areas and that groundwater levels seem to have returned to pre-disturbance elevations, re-establishment of wetland plants species after removal of fill would be expected to have a high degree of success. Fill removal to pre-disturbance elevations would also re-establish the opportunity for the exchange of surface waters between the pond and the wetlands to the north during high water conditions.
In light of the findings, Mr. Nichols was ordered by a
time certain to complete restorative actions mandated by the Consent Order's exhibit referenced above: the Tide Creek Wetland Restoration Plan.
The Restoration Plan
The Restoration Plan is a document composed of approximately 43 pages that is attached as Exhibit "I" to the Consent Order and that was produced following a session that involved the participation of DEP, Panfla, some citizens (including at least one of the Petitioners) and a few interested groups other than Sierra Club. Primarily narrated, compiled and
generated by The Phoenix Environmental Group, Inc. ("Phoenix"), it consists of six pages of narrative, tables of wetland species, a topographic map, approximate representations of wetland impacts, aerial photographs, a soils map, sketches of redesign, a vegetation survey prepared by Phoenix, photographs of wetland transects, and herbaceous/shrub data with summary of the data and photographs of the vegetation. It is a plan that demonstrates thought dedicated to what should be done on-site in the wake of its destructive alteration and, if carried out, a plan that will entail expense and effort by Panfla.
As viewed by Phoenix, the plan had three community types to deal with on site: open water, herbaceous wetland, and pine flatwoods. Randall L. Armstrong, Panfla's expert in aquatic and estuarine ecology, described the approach of Phoenix in its proposal that ultimately led to the Restoration Plan:
[W]e decided . . . that we would try to restore at least as much, if not more, of each of those community types in a restoration plan. The design that we came up with allowed us to increase the open water area beyond what was historically there, increase the acreage of littoral shelf beyond what was there, and also the acreage of pine flatwoods.
(Tr. 406) There were "some other pieces that we had to deal with" (Tr. 408), but the major emphasis of the Restoration Plan was explained in this way by Mr. Armstrong:
Our proposal . . . was to create some open water, to create some littoral zone that we would then plant with species that were similar to the species or basically the same as the species that occur or at least dominate in this unaffected littoral zone here, and to plant both the island and this hydric pine flatwood area with species that were common to the pine flatwoods adjacent to the restoration area but in unaffected areas.
(Tr. 407, 408).
The narrative of the Plan, in a section headed "Restoration," details the activity proposed by Phoenix and worked on in the sessions that led to the Consent Order to achieve the restoration objectives on the site. With regard to Areas 1, 2, and 3, the activity on which is primarily challenged by Petitioners, the narrative states:
The pond in Areas 1, 2, and 3 will be enlarged to the east in the configuration shown on Exhibits D-1 and D-2. The total open water area will be approximately 5.0 acres. The additional excavation beyond the current footprint of the pond will be to a depth of -3.0 to -5.0 ft. to reduce the potential for nuisance rooted aquatic vegetation.
As shown on Exhibits D-1 and D-2, much of the shoreline will be backfilled for a width of approximately 20 feet and to an elevation of approximately +3.0 ft. NGVD for creation of a littoral zone of approximately 0.56 acres. Herbaceous species associated with the historic pond as noted in Table 1 (dominated by Spartina) will be planted on 3-foot centers.
Within the new excavation area will be an island of approximately 0.5 acres, which will
be totally separated from the uplands such that it can provide refugia for wildlife, especially birds. The island will be graded to an elevation of approximately +3.0 to +4.0 ft. NGVD and planted with a mix of hydric pine flatwood tree species as outlined in Table 1 below. All trees will be planted on 10-foot centers. In addition, dead snag trees or constructed platforms will be erected on the island for birds to perch.
Adjacent to the new pond configuration, Block B Lots 11, 12, 13, and 14 and the adjacent access road will be scraped down to an elevation of approximately +3.0 to +4.0 ft.
NGVD for re-creation of hydric pine flatwoods. As noted above, it is believed hydric soils remain under the current fill and final elevations will be field-determined during scrapedown (based on measured elevations of adjacent existing wetlands).
The hydric soils and relatively high groundwater table should readily support a mix of hydric pine flatwood tree species as outlined in Table 1. Again, trees will be planted on 10-foot centers. This restored area will allow for the re-establishment of surface water exchange between the pond and the wetlands to the north during periods of high water.
As shown on Exhibit D-1, a park/common space will be created between the pond and the park/common space in the southwest portion of the property (adjacent to the saltmarsh).
This will provide a corridor for residents to move between the marsh and the pond on common property.
The pond will not be a part of the stormwater management system. Treatment of stormwater from nearby residences will be within minimum
35 foot natural vegetated buffers surrounding the pond (including the littoral shelf). The pond may be stocked if necessary to provide a fishing amenity for the residents, especially youth. Provisions may be made in the future
(subject to issuance of the necessary permits) for an observation deck/fishing pier to be located in the common areas.
The re-establishment of the pine flatwood community adjacent to the pond will provide for the restoration of wetland functions historically provided by that community.
Reconfiguration of the pond, to include the littoral zone and the island as well as significant open water, will add ecological value to the system, especially as habitat for fishes and other aquatic organisms as well as for birds. Presently there are limited freshwater ponds in the area that are not overgrown with vegetation (as are most brackish and saltwater ponds). The availability of open water should attract numerous overwintering waterfowl and many year-around species, especially those that need freshwater habitat. The island will provide a refuge protected from most predators that could serve as a nesting and/or foraging habitat. Exhibit E shows the final restored configuration of the wetlands and pond, including the re-establishment of surface flows to the existing wetlands to the north during periods of high water.
Petitioner's Ex. 6, Exhibit "I," pgs. 3, 4 of the opening narrative.
Areas 1, 2, and 3 are also subject to a section of the narrative under the heading "General Notes":
The restoration work will be conducted under the direction of a qualified forester.
Efforts will be made to provide a mix of tree and herbaceous species as outlined in this restoration plan. However, based on information from the Association of Florida Native Nurseries, some plants may not be in great enough supply at the time restoration is to be done. Also, the mix of nursery stock sizes (liners, bare root seedlings,
1 gallon, etc.) has not been specified due to fluctuations in availability, but generally bare root seedlings will be used for the tree species, if available. Groundcover and understory vegetation will not be planted as it is expected that natural recruitment will result in the establishment of these species rather quickly. If, however, these species are not becoming well established by year 3, a plan will be developed for the planting of these species based on the species that exist in adjacent unimpacted areas. Finally, if approvals of this plan are received in a timely manner, efforts will be made to conduct the earth-moving necessary to allow for planting in the most desirable late Fall period (generally late November to early December). Wakulla County (County), the Florida Department of Environmental Protection (FDEP) and the U.S. Army Corps of Engineers (Corps) will receive monthly progress of re-grading and planting efforts.
After planting all restoration areas will be monitored twice annually (Spring and Fall) and reports will be provided to the County, the FDEP and the Corps. Monitoring will also include a benchmark control site within the development of unaffected wetlands to allow for a comparison of species in the restoration and natural areas. Photographic stations will be established, and transects will be established (field-marked) through all restoration areas. Transect monitoring will consist of identification of species present and measurements of height. In the restoration areas, mortality as well as the presence of any nuisance or exotic species will be recorded. Replanting will occur with mortality such that 85% survival of desired species is maintained and all nuisance or exotic species will be controlled to less than 5% of all species present. Monitoring will cease within 5 years unless it is determined that additional planting and maintenance is needed to insure the long-term viability of the restoration areas. If after
3 years of monitoring the restoration areas show strong evidence of success (regeneration and recruitment of desirable species, low occurrence of nuisance/exotic species, etc.), a request may be made to the County, the FDEP and the Corps to cease or reduce monitoring. As noted above, after 3 years the planting of groundcover and understory species may also be needed depending on the degree of natural recruitment, and monitoring would be continued.
The restored, created and natural wetlands on the site will be managed by control burning if the necessary approvals can be obtained from the Florida Division of Forestry. It is possible that such approvals cannot be obtained due to the proximity of existing and expected residences. If approvals are obtained, the burn plan will be developed and implemented by a qualified forester.
Finally, all wetlands remaining on the site (restored, created and natural, see Exhibit
E) will be protected in perpetuity by a conservation easement. The easement will allow for the long-term management of the wetlands as discussed above, and also will allow for the construction of amenities such as the observation deck/fishing pier as discussed above (subject to receipt of the necessary permits/authorization).
Id., pgs. 5 and 6.
The two portions of the Restoration Plan, quoted above in paragraphs 54 and 55, are the primary subjects of Petitioners' challenge as stated in their Amended Petition.
The Amended Petition
Denominated "Amended Petition for an Administrative Hearing on the Don J. Nichols, Tide Creek Landing Consent Order
(OGC File No. 02-1129-65-DF," the Amended Petition was submitted to DEP on November 12, 2002, by Petitioners Victor W. Lambou, Tony Cartlidge, and Richard Johnson, under a cover sheet with their three signatures. The complaint in Section C., recited in detail the Petitioners' substantial interests in the Consent Order. These were summarized as follows:
In summary, the wetlands of the Tide Creek Development area are an integral part of the [Ochlockonee Bay/Levy Bay/Dickerson Bay Complex] and we use that complex and the associated tidal creeks and marsh areas for boating, fishing, bird watching, and nature viewing which is a very important part of our lifestyle. The reduction and/or deterioration in the wetlands and marsh and pond areas on the development will adversely affect the biota in the [complex] and thus substantially affect our interests.
Amended Petition, Section C.
By the Amended Petition, Petitioners seek modification of the Consent Order referenced in the title of their Petition in seven enumerated ways. (See Section F of the Amended Petition.) They do so on the basis of three statutory provisions. (See Section E of the Amended Petition.) Two are Sections 373.016 and 373.414, Florida Statutes, from Florida's Water Resources Act. The third, Section 403.061, Florida Statutes, is from Florida Air and Water Pollution Control Act.
With regard to the statutory sections the Petition invokes, the Petition states as follows:
The statutes that require modification of the Consent are as follows:
Chapters 373.016 of the Florida Statutes state it is the policy (item g) "to preserve natural resources, fish, and wildlife." The Consent Order as presently constituted does not preserve the natural resources, fish, and wildlife.
Chapters 373.414 of the Florida Statutes (additional criteria for activities in surface waters and wetlands) state "that the governing board or the department shall consider and balance the criteria, among other criteria, item 2, whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats" and, item 4, "whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity." The Consent Order as presently constituted violates the above criteria.
Chapter 403.061 to the Florida Statutes (Department; powers and duties) states that the department (item 8) shall "issue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceeding." The department has not issued orders that are necessary to effectuate the control of water pollution and enforce the same by all appropriate administrative proceeding.
Amended Petition, Section E.
The following are the seven modifications of the Consent Order that Petitioners seek:
Redraft the Consent Order so that it facilitates the restoration of the wetlands and not the completion of the subdivision.
Restore all jurisdictional wetlands and water areas to their original configuration. An enlarged and deepened pond is not appropriate for the restoration of the wetlands and water areas originally occurring in the Tide Creek Development area.
Do not include the littoral shelf in the 35-foot natural vegetated buffer surrounding the pond that it is intended to protect.
Spell out exactly what type of conservation easement will be executed. Have the easement include both existing and restored wetlands. Place the wetlands in the public domain.
State exactly what mix of tree and herbaceous species will be included in the restoration of the wetlands.
If control burning will be allowed as a management tool, include in the Consent Order how, when, and where burning will be conducted so that its impact can be evaluated.
Include an accurate survey of the present wetland tree species occurring on the area in order to provide a benchmark for evaluating and monitoring the wetland tree restoration efforts.
Id., Section F.
As Petitioners state in the "Preliminary Statement" of their Proposed Recommended Order at p. 3, "the Petitioners limited this action to the challenge of the Consent Order and Restoration Plan as they relate to the authorization of activities in the . . . jurisdictional wetlands. The Petitioners
chose not to challenge issues relating to the stormwater system or the domestic waste water collection facilities."
The Parties
Petitioners
The Petitioners, Victor W. Lambou, Tony Cartlidge, and Richard Johnson, reside in Wakulla County. They use the public lands, wetlands, and waters in the immediate vicinity of and near Tide Creek Landing in related but somewhat different ways and with varying degrees of intensity.
Mr. Lambou lives in Crawfordville. He uses the Tide Creek Area near the site of Tide Creek Landing for sightseeing, bird watching and nature watching. It is not unusual for him to recreate in the area as much as four or five times a week with an estimate that he does so about 70 times in a typical year.
Mr. Lambou has a master's degree in aquatic ecology.
His educational background and past employment with various governmental agencies whose role was environmental protection enhances his enjoyment in observing the area's vegetation, the soils in which it grows and the animals with which it is associated. He particularly enjoys watching birds: "[t]he wading birds, the herons, -- sometimes you see wood storks in the shallow ponds, certainly a lot of pelicans. This winter, loons, the grebes, the mergansers and the shore birds of many varieties." (Tr. 68).
Mr. Johnson lives in Panacea. A visitor to Wakulla County for the 17 years prior to establishing residency in Wakulla County 14 years ago, he drives by Tide Creek four or five times a week. Over that 31 years, he has "boated through the area quite a bit, fished through there, birdwatched, just enjoyed the general intact integrity of the whole area." (Tr. 231)
In the winter, it is more difficult to navigate Tide Creek than at other times of year. From March until early November, Mr. Johnson boats or canoes on Tide Creek an average of four times per month. He does not swim "in Tide Creek that much per se" (Tr. 234), but swims in Levy Bay and Ocholockonee Bay.
Mr. Johnson uses a cast net to catch bait fish and catches fish and other seafood in the area that he consumes himself:
I've . . . caught croakers, mullet, blue crabs. As it connects around on the back side of the island in the cold winter months we've actually harvested oysters in part of Levy Bay. In Ochlockonee Bay, . . . [there are] mackerel, redfish, . . . blue fish, flounder, pretty much the whole gamut of the indigenous fish [in the area].
Id.
In response to the question "[h]ow important is this
area to you?", Mr. Johnson answered:
I find it very important for a number of reasons, and one of the main ones being this is one of the last undisturbed parts of Florida that hasn't been, you know, destroyed
or altered to such a degree that it's pretty much in the natural state. I've been around the whole state of Florida, and this is a very rare gem that we still have left here.
(Tr. 235).
With regard to how his nature watching, bird watching or fishing have been affected by the Consent Order, Mr. Johnson was unable to say definitively since he did not have a baseline empirical study. He supposed that alteration of the ecosystem would have an effect on fish. He could not say with certainty what effect the Consent Order would have on wood storks, although he imagined there would be some effect. He had observed fewer "critters running across the road" (Tr. 248), due to the construction activity on the Tide Creek Landing site but was unable to attest to any impact of the Consent Order because not enough time had passed to observe effects "on a seasonal basis."
Id.
Anthony Cartlidge lives in Wakulla County roughly two
miles from the Tide Creek Landing off of Surf Road on Ochlockonee Bay. Unlike Mr. Johnson, Mr. Cartlidge is not a skilled fisherman but he is a frequent boater, boating hundreds of times in a year in the area. He had boated there two days before the hearing and in summer goes out in his boat in the area as much as four times a day.
Sierra Club
The mission of the Sierra Club is "to conserve and protect natural environments and to actively participate in their conservation." (Tr. 345) It is common, moreover, for its members to utilize natural environments for boating, fishing, recreating and enjoying the outdoors.
The Sierra Club is interested in the Tide Creek Area because of its relatively undeveloped state, the connection provided by the creek between the two bay systems and because it "borders on the St. Marks National Wildlife Refuge." (Tr. 346) The matter of the Consent Order and its Restoration Plan was brought to the attention of the Board of the Big Bend Group and subsequently to the Florida Chapter of the Club. Those bodies within the Sierra Club agreed "unanimously" that the matter was "important." (Tr. 357) The unanimous view of the case was part of the basis for Sierra Club joining the Petitioners in this proceeding to have the Consent Order modified.
Sierra Club has over 30,000 members in Florida and over 1,500 members in the Big Bend area of Florida (Leon, Wakulla, Jefferson, Franklin and Taylor Counties.) In Wakulla County, Sierra Club has slightly more than 50 members.
Chad Hanson is a fishery biologist. He is also on the local board of the Big Bend Group of the Sierra Club where he serves as Wakulla issue chair. He represents the Big Bend at the
state chapter of the Sierra Club by virtue of his membership on the state chapter board.
Mr. Hanson canoes in Levy Bay. He fishes there, too, and tries to catch "speckled trout, spotted sea trout, . . . redfish, red drum, and then . . . after that, anything but catfish." (Tr. 339) He has conducted bird watching in the area on occasion over a four-year period. He has seen the usual assortment of wading birds and once spotted two roseate spoonbills in the area of Tide Creek.
Other members who utilize the site do so in the manner of Mr. Hanson's use, as he explained in his testimony:
The Sierra Club members utilize this site much like myself, in recreating passively, fishing, birdwatching, nature viewing in general, getting out and walking around on the marsh lands and the Mashes Island and the beach area, just basically . . . enjoying nature and its peacefulness.
(Tr. 353). One of those members is Dr. Kessler. Two other members of the Sierra Club who reside and work in Panacea in Wakulla County, Anne E. Rudloe, Ph.D., and Jack Rudloe, testified in the proceeding. Both of the Rudloes recreate and conduct professional activities in the Tide Creek Area. The professional activities relate to their marine research laboratory that is located in Panacea. Among the many activities of the laboratory is the management of sea turtles.
No formal surveys have been done by Sierra Club to determine how many of its members use the Tide Creek Area for recreation or other purposes.
DEP
The Department described itself in its post-hearing submittal, "DEP is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce Part IV of Chapter
373 and Chapter 403, Florida Statutes." DEP Proposed Recommended Order, p. 5.
Part IV of Chapter 373, Florida Statutes, governs the management and storage of surface waters. Within Part IV is The Surface Water Improvement and Management Act, (the "SWIM Act",) Sections 373.451-373.4595, Florida Statutes. The SWIM Act provides in pertinent part:
The Legislature finds that the water quality of many of the surface waters of the state has been degraded, or is in danger of being degraded, and that the natural systems associated with many surface waters have been altered so that these surface waters no longer perform the important functions they once performed. These functions include:
* * *
(b) Providing habitat for native plants, fish, and wildlife, including endangered and threatened species;
* * *
The Legislature finds that the declining quality of the state's surface water has been detrimental . . . and that it is the duty of the state, through the state agencies and subdivisions, to enhance the environmental
. . . value of surface waters.
The Legislature finds that factors contributing to the decline in the ecological, aesthetic, recreational, and economic value of the state's surface waters include:
* * *
(b) Destruction of the natural systems which purify surface waters and provide habitats.
Section 373.451, Florida Statutes.
Chapter 403, Florida Statutes, is known as the "Florida Air and Water Pollution Control Act," Section 403.011, Florida Statutes (the "Act").
In the Act the Legislature declares as public policy, in pertinent part, the following:
The pollution of the . . . waters of this state . . . is harmful to wildlife and fish and other aquatic life; . . .
It is declared to be public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof . . . for the propagation of wildlife and fish and other aquatic
life . . .
* * *
(8) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of . . . water resources in the
state and which are or may be detrimental to
. . . animal, aquatic, or plant life . . . be increased to ensure conservation of natural resources . . . [and] to ensure and provide for recreational and wildlife needs as the population increases and the economy expands;
Section 403.021, Florida Statutes.
To carry out the legislative intent, DEP is conferred the power and duty to control and prohibit
pollution of . . . and, for this purpose to:
* * *
(8) Issue such orders as are necessary to effectuate the control of . . . water pollution and enforce the same by all appropriate administrative and judicial proceedings.
Section 403.061, Florida Statutes.
Panfla
Panfla is a business organization in the form of a partnership, described in opening argument by Panfla's counsel as "a family limited partnership out of state . . . ." (Tr. 31)
Panfla is the land owner of Tide Creek Landing, a subdivision of residential housing that is the subject of the Consent Order and its Restoration Plan. By the time of hearing, Panfla had commenced and was well under way with the implementation of the Restoration Plan.
Implementation of the Restoration Plan
The Restoration Plan has been implemented with the exception of some of the planting in what the plan refers to as
the "littoral" shelf. (The planting requires frost-free conditions that were not yet certain at the time of hearing.) A wetland island was created in an area that had been non- jurisdictional. Disturbed areas were planted with native vegetation. A thirty-five foot buffer was created landward of all wetlands and waters.
The implementation accomplished by Panfla included the following:
fill was added to or left in the jurisdictional pond to the north but open water including part of what remained of the pond was enlarged to a total of 5 acres to create a lake;
a portion of the lake was backfilled to create a 20 foot wide shelf totaling .56 acres;
a new hydric pine flatwood island was created within the lake by scraping down historic uplands, for an area of .5 acres;
a contiguous area of 3.9 acres was created along the northern shore of the lake, matching surrounding elevations, and planting with slash pine and bay trees (rather than removing the fill from the original pond down to pre-filling conditions) with the intention that the area would constitute wetlands;
of the .47 acres of wetlands elsewhere that suffered the impact of the alteration,
all was subject to activity under the plan except for .19 acres;
the .19 acres that did not receive the plan's efforts was considered replaced by the creation of the .5 acre island.
The implementation of the plan's activities is permanent in that a conservation easement was imposed over the wetlands and water bodies that were subject to plan activity and the remaining wetlands that totaled 22.58 acres of the 58.84-acre site.
The implementation achieved some of the goals that Phoenix and Panfla set out to accomplish with their proposal for post-alteration activity on-site. Open water was increased and hydric pine flatwoods were increased. There was not an increase in the littoral zone, however, despite the increase in the size of what was designated as a "littoral" shelf.
The Shelf
Areas of fill were removed from some of the wetlands that had suffered the impacts of road and lot construction, that is, they were scraped down as called for by the Consent Order. But sand fill from one to five feet deep was either added to or left to stand on top of other areas of the original wetlands to the north and the east of the new lake. The depth of this fill, whether post-scraping, left as deposited by Panfla's original alteration or added-to, was proven by auguring conducted by an expert in soil science, Charles Lyn Coultas, Ph.D.
Some of this filled area is referred to in the Restoration Plan as the "littoral" shelf. It was created with the intention that it be a transition zone from the lake to the
uplands. Consistent with a littoral zone, indeed, the shelf has a gentle grade that slopes toward the lake. Such a slope is preferable to a steep slope if the shelf is to function as a littoral zone. The shelf is not, however, a true littoral shelf nor is it, for the most part, a transition zone from a water body to uplands for two reasons. First, it is too high. Second, when it reaches the edge of the dredged area that now constitutes the lake, the elevation in the lake drops steeply and precipitously. The karst ponds that preceded the alteration continued the gentle slope of the shelf until they reached bottom, five feet or so below the water surface. After the illegal alteration of the site and the implementation of the plan, the lake bottom drops very rapidly if not immediately to five feet and then to at least eight feet if not 10 to 12 feet at its deepest point.
The edge of the re-created shelf is within a "narrow zone" (Means Depo., p. 56) for emergent plants around the new lake. This zone, two or three feet wide from the shore, was observed on March 11, 2003 and again on April 9, 2003, to have produced an emergent plant, perhaps Spartina, and another emergent plant of a different species. Near the edge of the shelf in the water were water lilies, probably Nimphoides. The lilies were close to the Spartina and the shore on April 9, just before the hearing in this case.
Despite the presence of these flora noted on March 11 and April 9, the narrowness of the zone renders it insufficient to make it a littoral zone. The water depth from dredging, five feet a few feet offshore, is too great on the water-ward side of the shelf and too close to the shelf for the zone to be sufficiently wide to restore adequately a littoral zone. On the landward side, the shelf is too high for it to constitute a functioning littoral zone. Much of the sand fill on top of the original wetlands is about 3.5 feet higher than the original wetlands. With regard to the status of the shelf as a wetland or an upland, Dr. Means opined, "[a]n elevational difference of three and one-half feet of sand so close to the coast and on elevations less than 10 feet NGVD are all that is required to set apart uplands from wetlands." Petitioners' Ex. 14, p. 2.
In times of heavy rain, the water from the lake will pop over onto the new shelf and inundate it as occurred shortly before April 9, 2003. Some wetland vegetation may be recruited as a result. But whether the effect of pop-overs will sustain the recruitment of natural wetlands vegetation for the greater part of the shelf is unknown. Dr. Means thinks not. "[I]t's too deep in most of its parts for that to happen, because water will quickly percolate through it and dewater the site and allow oxygen to get into the interstices among the sand grains and not allow organic matter to build up." Without the buildup of
organic matter, moreover, the shelf will not function as a littoral zone.
The shelf's failure to extend into the lake to create a true littoral zone so that the lake would more closely resemble the northern edge of the former karst ponds and its failure to function as a littoral zone is not all that the Restoration Plan fails to accomplish.
What the Restoration Plan Does Not Do
By allowing the areas illegally filled by Panfla to be dredged and the area of the former ponds to be enlarged into a lake, with its increased depth, straightened and filled northern and eastern shores, steeper sides and truncated littoral zone, and by the other action listed in paragraph 54 and 55, above, the Restoration Plan is not an attempt to restore to their original configuration or status the jurisdictional waters and wetlands disturbed without permits by Panfla.
By virtue of the provisions of the Consent Order that relate to the shelf, the enlargement of open water and the lack of an attempt to restore their original configuration with karstic features, it is true that Panfla lost land space for some of the lots it intended to develop. But, in doing so, it obtained a site that contained a man-made lake, an amenity that is more attractive to the average purchaser of lots in a
subdivision than the karstic features that had preceded Panfla's illegal activity.
The Restoration Plan, moreover, will not restore the herbaceous Spartina and Juncus wetland to the north of the pond to its former function as part of the littoral zone because the zone is too narrow. Rather than a littoral zone, the shelf is an extension of the hydric pine flatwood uplands in the hope that it will become wetlands. The monitoring of progress toward wetland development required by the Consent Order appears to be a form of self-monitoring by Panfla. It calls for reports to Wakulla County, DEP and the Army Corps of Engineers. After 3 years, if the reports generated by Panfla show success, monitoring stops.
The Restoration Plan authorizes the use of prescribed fire but does not require it at the most beneficial time, during the growing season. The lack of prescribed burning at the most beneficial time, as essential as it may be to the original ecology of the Tide Creek Area, would be difficult to correct whether Panfla's illegal activity had occurred or not. While the optimum time to burn is during the growing season, nonetheless, "[w]e have problems burning when we want for lots of reasons." (Means Depo., p. 67). It is better, however, to burn in the winter than to not burn at all
Prescribed burning considerations aside, when that which the plan does not accomplish is understood, it appears that
the term "restoration" in the denomination of the Restoration Plan is a misnomer. Rather than restoration, the plan calls for mitigation of the damage that was caused by Panfla's alteration activities. Mandating mitigation in favor of restoration is somewhat understandable. Restoration, considered in the fullest sense of the word (restoration of the site to the ponds' original configurations complete with karstic features including the full functions of the former karstic ponds) is an objective that would be impossible to achieve.
All the King's Horses and All the King's Men
Dr. Means testified in his deposition when asked what he would propose to restore the function of the system that existed before Panfla's alteration, "I don't think you could restore it." (Tr. 54) That it could not be fully restored, however, does not mean that mitigation activities should not be undertaken. Dr. Means explained, "if the goal is to try to restore . . . they shouldn't have put fill on the original wetlands . . . that allowed water to communicate, during high water events, across that with the bay, and I certainly wouldn't have dredged the pond deeper." Id.
The inability to restore the site presented DEP with a decision: in light of the damage and the inability to restore what had been to the fullest extent, what should be required of the developer in the wake of its destructive and un-permitted
activity? Should DEP have required that which the Petitioners and their experts advocated: more of an attempt to approximate a karstic environment? Or would something else or a lesser approach, in the manner of Mr. Armstrong's proposal, be an adequate method of dealing with the aftermath of the destruction?
The Department chose the latter course. It opted to attempt that which Mr. Armstrong proposed: a gently sloped extension of the shelf toward the lake in the hope of creating a wetland, one that would encourage recruitment of wetland species and the survival and growth of wetland species planted per the plan, in other words, extension of the hydric pine flatwood wetlands.
Hydric Pine Flatwood Wetlands
The Spartina that grows in a marsh system is Spartina
alternaflora. The Spartina at the edge of the pine flatwoods to the north of the site is Spartina bakerii. Both types of Spartina are wetland species but the two are subject to markedly different hyrdrology. The Spartina bakerii near the pine flatwoods had not been flushed daily with water from salt water tides; it received water from seasonal high rain events or other hydrological events that saturated the soils. The Panfla site would only have been saturated by salt water during extreme weather events like a tropical storm or a hurricane.
For the wetlands between the former fresh water ponds and the hydric pine flatwoods with connection to salt marshes, the creek, the bays, and the Gulf of Mexico, it remained most important, in DEP's view, that the site provide the functions of wetlands whether those be tidal or wetlands sustained by intermittent non-saline waters. In the words of DEP's expert, Dr. Tobe, it was important that the wetlands continue to "prevent flooding, . . . provide habitat for wetland-dependent species,
. . . help improve water quality . . . ." (Tr. 605) In other words, it was most important that they achieve the basic functions of any wetland system in general rather than to attempt to achieve the more specific and highly valuable functions of the karstic features that had preceded the alteration.
Whether the activities required by DEP will succeed will not be known for an extensive period of time, perhaps "hundreds of years." (Tr. 607) This calls into question the self-monitoring called for by the plan for five years with the potential to stop after 3 years if there is "strong evidence of success." Petitioner's Ex. 6, Exhibit "I," p. 6.
Synchronizing the disparate factors that had to be taken into consideration, the result (encapsulated in the Consent Order) was summed up by Dr. Tobe:
[I]n my opinion, DEP got a good deal . . . because we had a lot of lots taken out of
wetlands that may have been developed. We had a buffer.
* * *
[T]he DEP . . . did their job, we protected the water resource. We agreed upon a consent order which I believe . . . will [lead to] a functioning wetland. . . . [W]e can argue as to how much herbaceous wetland there should be versus swamp, and . . . how much productivity a slash pine-magnolia forest might produce as opposed to a Spartinai littoral zone, but . . . in the long term, this will pop over, as it obviously has done. It will connect to waters of the State as it had done in the past.
(Emphasis in original.) (Tr. 611-612) Dr. Tobe opined, too, that given enough time, the planted area on the shelf to the north of what had been the jurisdictional karst pond could be replaced with herbaceous perennial type plants like Spartina.
Whether Dr. Tobe or Dr. Means is correct, the Consent Order will not restore the productivity function of the littoral zone that had existed prior to the site's alteration. If Dr. Tobe is right, however, then the shelf will operate as a wetland. In other words, it will be a wetland with the essential characteristics that Dr. Tobe enunciated. If Dr. Means is right, the shelf will not provide any characteristics of a wetland because the shelf will be an upland due to the rapid percolation characteristics of the fill and other factors. Only time will tell which of the two expert opinions prevails on the Panfla site following full implementation of the plan in the Consent Order.
Short of modification of the Consent Order, the sure method of resolving the controversy of the future function of the shelf is for DEP to insist on monitoring the site for some reasonable period of time. Monitoring by DEP is not provided by the Consent Order. Furthermore, no evidence of what would be a reasonable monitoring time was offered at hearing, other than the plan's call for five or three years of monitoring depending on success and Dr. Tobe's expert opinion that success will not be known for many years more than the five envisioned by the plan. Given Dr. Tobe's testimony, without consideration of DEP resources, it appears to be unreasonable for the Consent Order not to require a reasonable time period for monitoring by DEP or some other trustworthy governmental entity.
With regard to the rest of the plan, DEP did not attempt to enforce the impossible by requiring restoration of the karst ponds including their crucial function of stirring productivity. It simply did what it thought best in the wake of destructive events. This solution was neither the optimal solution nor what Petitioners advocate as the better solution. In the end, however, the Department opted for an agreement to obtain what it viewed as reasonable: attaining practical, realistic results in circumstances beyond regrettable in their adverse impacts to precious natural resources that Petitioners and the Department agree could not be fully righted.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties (except for Sierra Club, as explained below) and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Standing of Petitioners
Subsection (5) (the "subsection") of Section 403.412, Florida Statutes, the "Environmental Protection Act of 1971," makes reference to "any administrative . . . proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction . . . ." This administrative proceeding is such a proceeding.
Amended in the 2002 session of the Legislature, the subsection decries any intent to limit a citizen's rights to invoke Chapter 120 administrative proceedings. "Nothing herein limits or prohibits a citizen whose substantial interests will be determined or affected by a proposed agency action from initiating a formal administrative proceeding under s. 120.569 or
s. 120.57." The subsection then sets out the test for when such a citizen's substantial interests are considered to have been determined or affected:
A citizen's substantial interests will be considered to be determined or affected when if the party demonstrates it may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter. No demonstration of special injury different in kind from the general public at large is required.
Petitioners have not quantified the impact of the Consent Order's failure to attempt to require restoration of the site to its pre-alteration status: karstic ponds with littoral zones that attempt to approximate those that existed before instead of a man-made lake with no littoral zone and a filled shelf extension of hydric pine flatwoods. But they have shown more than that this failure may produce an impact to the productivity of the flora and fauna in the Tide Creek Area, an area that they utilize for recreation and other purposes. They have shown that there will be an impact to the natural resources of the Tide Creek Area, as un-quantified and as un-quantifiable as that impact may be. This is more than sufficient to show that Petitioners "may" suffer an injury under the Consent Order.
While Petitioners concede by virtue of Dr. Means' testimony that human beings are not capable of fully restoring the ponds to their former productivity, they have shown that there are restorative efforts that would go further toward the direction of restoration of the pre-alteration status of the
Panfla site. Their approach would do more than the mitigation efforts that the Consent Order requires.
Petitioners have demonstrated that they may have suffered an injury in fact of sufficient immediacy that is of the type and nature (protection of water and natural resources) intended to be protected by Chapter 403. Petitioners have proposed a method of limiting the injury in fact that the natural resources of the Tide Creek Area have incurred. While the degree of that injury is unknown, it is nonetheless one of immediacy and sufficient to confer standing upon Petitioners for purposes of initiating this administrative hearing.
Petitioners have proven their standing to initiate this formal administrative proceeding.
Standing of Sierra Club
Unlike Petitioners, Sierra Club must meet the test for standing of an environmental association enunciated in Friends of the Everglades, Inc., v. Board of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186 (Fla. 1st DCA 1992).
In Friends of the Everglades, the Court held that an environmental organization must meet both the two-pronged test for standing of Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2nd DCA 1981), rev. den., 415 So. 2d 1359 (Fla. 1982), and the test for standing
of associations under Florida Home Builders Ass'n v. Department of Labor, 412 So. 2d 351 (Fla. 1982).
The question of what would constitute a substantial number of substantially affected Sierra Club's members, the Florida Home Builders' requirement for an association's standing, is not clear. Should the base of membership be the 30,000 members of the Florida Chapter, the 1500 or so in the Big Bend Group of the organization, or the 50 members who reside in Wakulla County? No evidence, moreover, was introduced to identify the Club's full membership which may be inferred from the existence of a Florida Chapter to be greater than that of a Florida Chapter by way of a national, if not, international organization in which the Florida Chapter participates.
The evidence of record establishes that four members of the Club, all residents of Wakulla County, were affected by the Consent Order: Dr. Kessler, Jack Rudloe, Ann Rudloe, Ph. D., and Chad Hanson. Four members is not a substantial number of Sierra Club members no matter what base offered by the evidence is used and no matter how the impact of the Consent Order to the natural resources of the Tide Creek Area is viewed. If the base is the members of Sierra Club who reside in Wakulla County, as suggested by Hillsborough County v. Florida Restaurant
Association, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992), in which
41 percent of the county membership in a statewide association
was found to be a "substantial number," then Sierra Club's number of four composing less than 10 percent of the County membership can hardly be said to be substantial.
Sierra Club has failed to show that a substantial number of its members are affected by the Consent Order. It has thus failed to achieve standing under the Florida Home Builders' test for standing of an association adopted for environmental organizations by Friends of the Everglades, above.
Sierra Club's Petition to Intervene is denied for lack of proof of standing.
Validity of the Consent Order
The seminal case on challenges to DEP consent orders is a DEP Final Order rendered in Sarasota County v. State of Florida Department of Environmental Regulation and Ronald
Falconer, 9 FALR 1822 (1987). In that order, the Secretary of the Department described two types of consent orders:
There are two classes of consent orders that have been issued by the Department. The first class of consent order serves as authorization for a permittable type of activity that has not yet been conducted or is ongoing in nature and is the type of activity more properly the subject of a permit application.
* * *
[discussion of Williams v. Moeller and DER, 8 FALR 5537 (1986).]
The second class of consent order is issued by the Department to resolve an alleged
violation of statute or rule resulting from a facility being constructed without a permit, or from a facility causing pollution that must be ameliorated or both. Consent orders of this type are issued to settle existing, outstanding violations of law, and may require any or all of the following as the specific circumstances of each case dictate: payment of penalties, reimbursement of Department costs, payment of damages to the environment, or remedial action.
The Consent Order at issue in this case is of the second class. The Consent Order is not to serve as authorization of a permittable type of activity as are consent orders in Falconer's first class. (The evidence, moreover, strongly militates toward the conclusion that the original alteration activity on site conducted by Panfla would not have been permittable.) The Consent Order in this case was entered to resolve a violation of law resulting from activity without a permit, that is, a consent order in Falconer's second class.
When a consent order falls into the second class described by Falconer, the burden is on the Department and the settling party to prove the consent order's reasonableness.
Falconer instructs that the form of this proof depends on whether the project would have been entitled to a permit had the respondent applied for one.
"If the respondent or the Department can carry the burden of proving that a permit could have been obtained based upon the reasonable assurance standard, then entry of a consent
authorizing the project to remain is per se reasonable." Falconer, above. The Department and Panfla did not carry the burden of proving that a permit could have been obtained based upon the reasonable assurance standard. To the contrary, the evidence of Petitioners militated toward the conclusion that the reasonable assurances could not have been given for the alteration Panfla undertook.
"If the project would not have been entitled to a permit, . . . inquiry as [to] the appropriateness of the consent order may be the subject of Section 120.57 review." Id. The necessity of that inquiry has been raised by the Petitioners' Amended Petition.
"Factors such as the nature of the violation, the sufficiency of any penalty, the availability of Department resources, Department enforcement priorities, and the harm that might result from restoration would then be considered in determining the reasonableness of the Department's settlement." Id.
The Nature of the Violation
The nature of Panfla's violation is egregious. In this day of DEP Environmental Resource Permitting and age of environmental awareness, the activity conducted on site by Panfla without a permit is remarkably flagrant in its disregard for state law and the Department's permitting authority.
On the other hand, whether it was Panfla's plan to create the lake without permitting and to suffer the cost of such a violation of law as a cost of business that could be passed on to purchasers of its lots in the Tide Creek Landing subdivision, as argued by Petitioners, is an inference that cannot be drawn from this record.
One might conclude that creation of an amenity attractive to purchasers was a benefit of the Restoration Plan attractive to Panfla. There is no direct evidence, however, to substantiate the finding that this was Panfla's plan from inception. No representative of Panfla (other than its environmental consultant, Mr. Armstrong, who entered the picture after the illegal alteration) nor any representative of the contractor who conducted the illegal activity appeared at hearing, let alone testified. Nor was there any other direct evidence to support the Petitioners' assertion that Panfla intended to create a lake from the beginning. To the contrary, the original filling activity was intended to create more land for more lots.
Whatever its intent and whenever formed, the environmental damage wreaked by Panfla is profound. While the quantification of that damage to numbers of wildlife and flora cannot be made on this record, it is clear that the activity had a serious adverse impact to natural resources. Furthermore, in a
karstic environment that had existed for thousands of years, several karst ponds in the midst of wetlands both jurisdictional and isolated are lost forever.
The Sufficiency of the Penalty,
the Availability of Department Resources, and Department Enforcement Priorities.
Petitioners did not challenge the sufficiency of the penalty, either in terms of civil penalties or recovery of Department costs. There is little in the record that relates to the availability of Department resources or Department enforcement priorities other than Dr. Tobe's unadorned assertion that the Department does not monitor restoration activities with regard to wetlands.
Harm from Restoration
The focus of Petitioners' case is harm caused by the activities called for by the Consent Order's Restoration Plan. Petitioners showed that the activities called for by the plan might be strengthened or, in the words of Petitioners' experts, be "better." They assert that the Department's failure to insist on an attempt to restore ponds that would have features more akin to the karst ponds that preceded the alteration rather than allowing a subdivision lake, causes harm. But they did not show that the failure of such insistence would create harm. To the contrary, they did not show that their approach would assist in the restoration of the natural resources. They showed only that
it would be somewhat more like what was there before while conceding that what was there before could never be fully attained.
To require the attempt advocated by Petitioners would be to penalize the wrongdoer more than the penalties currently imposed by the Consent Order. Whether the additional penalty advocated by Petitioners should have been required is the subject of the Department's exercise of enforcement discretion.
Exercise of Enforcement Discretion
The ultimate question in the review of a Consent Order that falls into Falconer's second category is "whether the action taken by the Department is a reasonable exercise of its enforcement discretion." Id.
"Unless a third party challenger can show that discretion has been abused, its exercise should not be disturbed." Id. Had Petitioners succeeded in demonstrating that natural resources are damaged by the Consent Order's Restoration Plan then, depending on the extent of the damage, they might have demonstrated an abuse of discretion. As the record stands, their attempt fails.
This case does demonstrate, however, that the success of returning to wetlands some of the disturbed site is not known. As Dr. Tobe candidly testified, monitoring for a lengthy period
of time is necessary to determine the success of the return of the shelf and other parts of the property to wetlands.
While there is no evidence as to the DEP resources that would need to be marshaled in this regard, it seems unlikely that periodic monitoring visits for some reasonable amount of time would entail too great a consumption of Department resources, particularly since the Restoration Plan calls for a method of monitoring to be installed by Panfla.
If the Plan's monitoring methodology is sound, and there is nothing of record to suggest otherwise, then it seems that DEP's commitment to monitoring would entail no more than visits to the site, twice yearly as called for by the Plan, and oversight of the monitoring process installed and provided by Panfla as a means of verification.
In short, it is clear that an active role of DEP in the monitoring process is necessary in order to confirm the adequacy of the process installed by Panfla, to assure the accuracy of reports provided by Panfla under the current plan, and to support the ultimate success of the return of wetlands that is a goal of the Consent Order's Restoration Plan. Some reasonable amount of time should be selected; one that falls somewhere between the five years called for in the Plan and the centuries suggested by DEP's expert.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered by the Department that sustains the Consent Order with the single exception that a requirement be added: that the planted wetlands be monitored by spring and autumn semi-annual visits by DEP personnel over a reasonable length of time if Department resources are sufficient to provide such monitoring.
DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
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 24th day of June, 2003.
COPIES FURNISHED:
Andrew Jubal Smith, Esquire 12542 Waterfront Drive
Tallahassee, Florida 32312
Robert A. Routa, Esquire Post Office Box 6506
Tallahassee, Florida 32314-6506
Larry Morgan, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Curt G. Levine, Esquire Mutch & Levine, P.A.
2114 Northwest 40th Terrace, Suite A-1 Gainesville, Florida 32605
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 22, 2003 | Agency Final Order | |
| Jun. 24, 2003 | Recommended Order | Consent Order`s Restoration Plan for site in eastern Wakulla County that had contained Karst ponds illegally dredged and filled, while not the optimal solution to the degradation, was reasonable. |
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