STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOBBY C. BILLIE AND )
SHANNON LARSEN, )
)
Petitioners, )
)
vs. )
) ST JOHNS RIVER WATER MANAGEMENT ) DISTRICT AND MARSHALL CREEK ) COMMUNITY DEVELOPMENT DISTRICT, )
)
Respondents. )
Case No. 03-1881
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in St. Augustine, Florida, on October 14, 15, 16 and 22, 2003. The appearances
were as follows:
APPEARANCES
For Petitioners: Deborah Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082
For Respondent St. Johns River Water Management District: Veronika Thiebach, Esquire
William Congdon, Esquire 4049 Reid Street
Palatka, Florida 32177
For Respondent Marshall Creek Community Development District:
and
Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A.
200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202
Stephen D. Busey, Esquire Allen E. Wulbern, Esquire Smith Hulsey & Busey
225 Water Street, Suite 1800 Jacksonville, Florida 32202
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether an environmental resource permit (number 4-109-0216-ERP) (the ERP) should be modified to allow construction and operation of a surface water management system (the project) for a residential development known as EV-1, in a manner consistent with the standards for issuance of ERPs in accordance with Florida Administrative Code Rules 40C-4.301 and 40C-4.302.
PRELIMINARY STATEMENT
This cause arose on April 18, 2003, when the St. Johns River Water Management District (District) issued a notice of intent to issue a modification to an environmental resource permit, application number 4-109-56730-22 (the permit) to provide for the construction and operation of a 23.83 acre, single-family, residential development on parcel EV-1, with an
associated surface water management system; including modifications to a previously permitted stormwater pond which lies on parcel EV-2 (collectively the "project"), as well as on- site and off-site wetland mitigation areas. An ERP had previously been issued for construction of portions of the "Marshall Creek Development of Regional Impact" (DRI). This case involves a proposed modification to that original ERP.
The above-named Petitioners filed a Petition for Formal Administrative Hearing on May 12, 2003, challenging the District's proposed issuance of the permit. They alleged they are "residents" of the state of Florida whose substantial interests would be adversely affected by issuance of the permit. The matter was subsequently referred to the Division of Administrative Hearings to conduct a formal administrative proceeding. The cause was then assigned to Administrative Law Judge Charles A. Stampelos.
A final hearing was originally scheduled for July 29 and 30, 2003, to be held in St. Augustine, Florida. Motions for Continuance were filed by both the Respondent, Marshall Creek Community Development District (MCCDD) and the Petitioners. The final hearing was therefore re-scheduled for the week of October 13, 2003.
The Petitioners moved to amend their Petition on July 15, 2003, requesting that they be allowed to allege standing under
both "substantial interest standing" pursuant to Section 120.569, Florida Statutes, and "citizen standing" pursuant to Section 403.412(5), Florida Statutes (2002). On July 16, 2003, the Petitioners amended the Motion to Amend, clarifying that they sought to claim "citizen standing" pursuant to Section 403.412(5), Florida Statutes (2000), as opposed to the current version of Section 403.412(5), Florida Statutes (2002). In that Amended Motion to Amend, the Petitioners alternatively requested that, if only one Petitioner was able to demonstrate substantial interest standing, the other would be allowed to intervene pursuant to Section 403.412(5), Florida Statutes (2002). In response to the Motions and Responses filed by the other parties, Judge Stampelos denied the Petitioners' request to add Section 403.412(5), Florida Statutes (2002), as a basis for standing to "institute, initiate, petition for or request a proceeding under Section 120.569 or Section 120.57" on the basis that Section 403.412(5), Florida Statutes (2002), does not authorize a citizen to initiate a request for an administrative proceeding to contest an agency action. Judge Stampelos authorized the second Petitioner leave to intervene under Section 403.412(5), Florida Statutes (2002), in the event that only one Petitioner was found to have demonstrated substantial interest standing.
MCCDD filed a Motion for Sanctions on July 16, 2003, alleging that the Petitioners had filed similar Petitions against two related permits which, after hearing, had been granted, and that the Petitioners and their counsel knew that the allegations in their current Petition are not supported by material fact. On July 21, 2003, Judge Stampelos ordered that a ruling on the Motion for Sanctions would be deferred until issuance of a recommended order. On August 12, 2003, the Petitioners responded to the Motion for Sanctions and on
August 13, 2003, Judge Stampelos again deferred ruling until the issuance of a recommended order and additional briefing.
A Motion to Relinquish Jurisdiction and a supporting Memorandum of Law was filed on August 1, 2003, by MCCDD, stating that the Petitioners had failed to allege in their Petition, and demonstrate in deposition testimony, how their substantial interests would be affected. Based upon review of the Motion and the response by the Petitioners, Judge Stampelos denied the Motion to Relinquish Jurisdiction on August 12, 2003.
On October 2, 2003, Petitioner Shannon Larsen filed a Motion to Recuse and Disqualify Judge Stampelos. On October 7, 2003, that Motion was granted and the undersigned administrative law judge was assigned to the case.
A Motion-In-Limine was filed by the District on October 6, 2003, shortly before hearing, requesting that an order be
entered precluding the Petitioners from presenting testimony and arguing the issue of whether a mitigation plan exists and whether that plan has "regional ecological value" under the District's rule, since those issues were previously litigated in DOAH Case Nos. 00-2230 and 00-2231. A hearing was conducted on the Motion on October 12, 2003, and the Motion was granted, precluding the Petitioners from re-litigating those referenced issues unless they could show "changed circumstances."
On October 7, 2003, the Petitioners filed a Motion for Expert Witness Fees and on October 10, 2003, MCCDD filed a Motion for Recovery of certain discovery costs, a Response to the Motion for Expert Witness Fees and a Request for timing of payment.
The cause came on for final hearing as noticed. MCCDD presented testimony from the following witnesses: Peter Hallock, an expert in civil engineering; Nancy Zyski, an expert in biology, wetlands mitigation, and wildlife and wildlife habitat; Ann Stokes, Ph.D., an expert in cultural resource management, archeology and cultural resources; Harvey Harper, III, an expert in civil engineering, stormwater treatment and hydraulic, hydrology and water quality; Nick Oweis, an expert in geotechnical engineering; Donald Fullerton; and the deposition testimony of Laura Kammerer, State of Florida, Deputy Historic Preservation Officer. During her deposition Ms. Kammerer was
offered as an expert in archeology and cultural resource management. She is so accepted. MCCDD Exhibits numbered 1-7, 10, 11, 12-14, 16, 18-23, and 25-30 were received into evidence. MCCDD Exhibit 11 was partially admitted. A September 17, 2003, letter from Cherly Johnson contained in Exhibit 11 was not admitted. The remainder of the exhibit was admitted, however.
MCCDD Exhibit 12 was admitted with an amendment. The map "location of tributary one to Tolomato River in St. Johns County" in Appendix G of MCCDD Exhibit 14 was not admitted. The remainder of Exhibit 14 was admitted. The District presented testimony from the following witnesses: David Miracle, an expert in water resource engineering, hydrology, and water quality; Walter Esser, an expert in wetland and wildlife ecology, mitigation planning and wetland delineation. Exhibits 1-5 were offered by the District and received into evidence.
The Petitioners presented testimony from the following witnesses: Richard McCann, an expert in biology, wildlife and wildlife habitats; Bobby Billie, an expert in the indigenous cultures of Florida; Bruce Piatek, an expert in archeology; Frank Marshall, III, an expert in civil, stormwater and environmental engineering and water quality; Robert Burks, an expert in ecology, biology, marine biology, and water quality; Glenda Thomas; Robert Bullard, Ph.D., an expert in civil and stormwater engineering; Shannon Larsen; and the deposition
testimony of Thomas S. Hoctor (Petitioners' Exhibit 39-A). The following exhibits offered by the Petitioners were received into evidence: The Petitioners' Exhibits numbered 3-5, 7, 15, 17-19,
, 26-28, 33, 35, and 40. The Petitioners' Exhibit 7 was admitted on a limited basis only to show generalized pictures of the EV-1 site and surrounding area.
The Petitioners sought to enter into evidence Exhibit 39-A, the October 7, 2003, discovery deposition of Dr. Thomas S. Hoctor, Ph.D. The deposition had been noticed and conducted by MCCDD and the District and select deposition exhibits were attached thereto. MCCDD and the District objected to its admissibility on several grounds, including that Dr. Hoctor had not been qualified as an expert witness, concerning due process violations, relevancy, and hearsay. The deposition was not then admitted into evidence. The Petitioners were allowed to proffer the deposition and all its exhibits.
The deposition was excluded because it did not meet the standards of Section 90.803(22), Florida Statutes, because it was noticed and conducted as a discovery deposition, and not taken for the purpose of preserving expert opinion testimony for potential use in lieu of live testimony for hearing.
Consequently, the parties calling the deposition, MCCDD and the District did not have the same motives in questioning upon direct examination or re-direct examination, as might be the
case had the Petitioners, who sought to use the deposition at hearing, deposed Dr. Hoctor for purposes of preserving his testimony prior to hearing. The Petitioners only asked one question, concerning the deponent's resume, during the course of the entire deposition. Thus, all of the frailties associated with using discovery depositions as testimony are presented.
See In Re: Amendments to the Evidence Code, 782 So. 2d 339 (Fla. 2000); Friedman v. Friedman, 764 So. 2d 754 (Fla. 2nd DCA 2000). Accordingly, the deposition was not admitted at hearing.
The Petitioners were allowed to proffer and MCCDD and the District were allowed a five-day period, post-hearing, to submit memoranda stating their objections to the deposition as an exhibit. They timely submitted their memoranda objecting to the deposition opinion testimony of Dr. Hoctor on October 29, 2003. The Petitioners were accorded a like time to respond to the objections and demonstrate a basis for admissibility. The Petitioners responded on November 5, 2003, to the District's memorandum, but have not responded to MCCDD's memorandum and objections. Instead, on November 12, 2003, the Petitioners filed a "notice of non-service" of MCCDD's objections and memorandum regarding admitting the expert discovery deposition in lieu of live testimony. Also, on that date, MCCDD filed a response to the Petitioners’ notice of non-service. It would appear that the MCCDD served its objections and memorandum
concerning admission of the discovery deposition by facsimile transmission. In an earlier order in this proceeding Judge Stampelos had authorized the use of "fax" service as appropriate. Nevertheless, the Petitioners maintained that they did not receive the fax, because their fax machine was not operating or "turned off" on the day of service.
Notwithstanding that, once they clearly had become aware of and possessed of the MCCDD's objections to the deposition testimony, and related memorandum of law they have never filed a response.
The transcript of the deposition reveals that Dr. Hoctor believed that he was called upon to render expert opinions relating to only two issues: (1) whether the Marshall Creek Mitigation Plan has regional ecological value and (2) the value of the mitigation plan offered for the project. Those are the areas or subject matter of opinions of which the MCCDD and the District have notice. The first issue however, was rendered irrelevant by the ruling on the District's Motion-in-Limine, namely, that the Marshall Creek Mitigation Plan existed and had regional ecological value. That ruling occurred after the time of the deposition and therefore the parties did not have a motive or opportunity to object to Dr. Hoctor's testimony on that issue at the deposition. Concerning the second issue,
Dr. Hoctor was not tendered or accepted as an expert in the field of mitigation and his resume does not reflect extensive
experience in that field, although he has training and experience in the area of wildlife conservation ecology and the study of and delineation of conservation reserve-type lands.
Consequently, although strictly considered, under the above- referenced authority, the deposition should not be admissible, because both MCCDD and the District conceded in their proposed recommended orders to limited admissibility of the deposition, the deposition testimony will be admitted. It will, however, be accorded less weight in the area of mitigation, the only remaining relevant area on which Dr. Hoctor himself indicates he was opining, in relation to the other witnesses' testimony, particularly that of witness Zyski and Esser, who had substantially more direct observational and analytical experience with the proposed project, the site, and the surrounding geographical area than Dr. Hoctor.
MCCDD has filed a Motion for Sanctions against the Petitioners and the Petitioners' counsel and a Motion for Recovery of certain discovery costs. The Petitioners have moved for Expert Witness Fees. Upon consideration of all relevant circumstances, the three motions are denied. The parties obtained a nine-volume transcript of the proceedings and timely filed Proposed Recommended Orders. The Proposed Recommended Orders have been read and considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The applicant MCCDD is a unit of special purpose government established in accordance with the provisions of Chapter 190, Florida Statutes for purposes enunciated by that statute. MCCDD has applied for the permit modification at issue in this proceeding.
The District is a special taxing district created by Chapter 373, Florida Statutes. It is charged with preventing harm to the water resources of the district and to administer and enforce Chapter 373, Florida Statutes, and related rules promulgated thereunder.
Petitioner Larsen was born in Daytona Beach, Florida.
Sometime early in 2002 she apparently moved to the Crescent Beach area and lived for 5-6 months. Crescent Beach is approximately 30 minutes from the EV-1 site. Since October 2002, Petitioner Larsen has been a resident of Live Oak, Florida. She resided for most of her life in Daytona Beach, approximately one hour and 20 minutes from the site. She has been involved with the approval process of the entire Palencia Development (DRI) since 1998, of which the subject parcel and project is a part. The Petitioner likes to observe wildlife in natural areas and to fish, swim, and camp.
Ms. Larsen has visited the Guana River State Park (Park) which borders the Tolomato River. Her first visit to the
Park was approximately one to two years before the DRI approval of the Palencia project. Ms. Larsen has used the Park to observe birds and other wildlife and to fish. She has fished the Tolomato River shoreline in the Park, and also at the Park dam located across the river and south about two and one-half miles from the EV-1 site. Ms. Larsen has seen the Tolomato River some 30 to 40 times and intends to continue using the Tolomato River and the Guana River State Park in the future.
On several occasions she and Petitioner Billie have visited "out-parcel" residents of the Palencia development and viewed wildlife and birds and walked the Marshall Creek area and the marsh edge viewing various bird species. In June 2003, after this litigation ensued, she, her niece and out-parcel resident Glenda Thomas walked a great deal of the subject site taking photographs of wildlife.
In July 2003, Larsen and Billie participated in a fishing boat trip in the Marshall Creek area. In September 2003, she and Petitioner Billie kayaked on two consecutive days in the Tolomato River and in Marshall Creek, observing various wildlife such as endangered Wood Storks. Petitioner Larsen has been actively involved for the past 12 years as an advocate for the protection of indigenous or native American burial, village and midden sites on private and government property.
Petitioner Billie is a spiritual leader or elder of the Independent Seminole Nation of Florida. In that capacity he sees it as his responsibility to protect animals, rivers, trees, water, air, rains, fish, and "all those things." The Independent Traditional Seminole Nation consists of approximately 200 persons, most of whom reside in Southern Florida. Mr. Billie lives in Okeechobee, Florida, several hours distant by automobile from the project site. About 10 to 30 years ago Billie visited the Eastside of Tolomato River, to visit the beach, the river and other areas in what is now Guana State Park. He visited the dike or dam area and walked along the river front in what is now the Park. He checked on burial sites along the Tolomato River in what is now Guana State Park.
Billie first visited the Palencia property about five years ago and has been back a number of times. He has observed various forms of wildlife there and has visited out-parcel owners in the development area to ensure that they do not destroy any burial sites. Billie considers himself an environmental and indigenous rights advocate charged with maintaining the earth and resources for the next generation and preserving sacred and burial sites of indigenous people. He has in the past assisted governmental entities in preserving sacred indigenous sites and burial sites and has participated in the reburials of human remains and their belongings.
Sometime ago Billie went on a boat ride on the Tolomato River. Since the filing of the Petition in this proceeding he has been in a kayak on the Tolomato River twice and once in a boat in the vicinity of Marshall Creek. He has also observed Marshall Creek from Shannon Road. He has been on the EV-1 site three times, all in conjunction with this litigation. His concerns with the EV-1 project in part stem from alleged impacts to an indigenous burial ground which he feels he identified, due to the presence of "a lot of shell." However, all of the shell was located in a previously constructed road bed off of the EV-1 project site. He testified that he has had no training with regard to identification of archeological sites, but that he can "feel" if a burial site is present. He believes that the EV-1 project will adversely affect everyone just like it adversely affects him.
The Project
The project is a 23.83-acre, single-family residential development and an associated stormwater system known as EV-1. It lies within the much larger Marshall Creek DRI in St. Johns County, Florida. The project is in and along wetlands associated with the Tolomato River to the east and wetlands associated with Marshall Creek, a tributary of the Tolomato River, to the north. The project consists of thirteen residential lots, two curb and gutter roadway segments with cul-
de-sacs (Hickory Hill Court and North River Drive), paved driveways to individual lots, concrete and pvc stormwater pipes, two stormwater lift stations, perimeter berms, four stormwater run-off storage ponds, and an existing wet detention stormwater pond, which was previously permitted and located south and west of the EV-1 site. The project will also have on-site and off- site wetland mitigation areas. All portions of the EV-1 site are landward of the mean high waterline of the adjacent water bodies.
The project plan calls for permanent impacts to 0.82 acres of wetlands. A total of 0.75 acres of that 0.82 acre wetlands is comprised of fill for four access crossings for roads and driveways and a total of 0.07 acres is for clearing in three areas for boardwalk construction.
MCCDD proposes to preserve 6.47 acres of forested wetlands and 5.6 acres of saltmarsh wetlands, as well as to preserve 10.49 acres of upland buffers; to restore 0.05 acres of salt marsh and to create 0.09 acres of salt marsh wetlands as mitigation for any wetland impacts. The EV-1 mitigation plan is contiguous to and part of the overall Marshall Creek DRI mitigation plan. The Marshall Creek DRI is also known as "Palencia." The upland buffers are included to prevent human disturbance of the habitat value of off-site wetlands. The upland buffers on the EV-1 site range from 25 feet in areas that
do not adjoin tidal marshes to 50 feet in areas which front the Tolomato River or Marshall Creek. Within the 25-foot buffers restrictions include (1) no trimming of vegetation and (2) no structures may be constructed. Within the 50-foot buffers the same restrictions apply, except that for 50 percent of the width of each lot, selected hand trimming may be done on branches 3 inches or less in diameter between 3 and 25 feet above the ground surface. The buffers and other preserved areas will be placed in conservation easements, ensuring that they will remain undisturbed.
The Stormwater Management System
The 23.83 acre drainage area of the EV-1 project is divided into two types: (1) "Developed Treated Area" consisting of the houses, a portion of each residential lot, all driveways, sidewalks and both cul-de-sac roadway sections, comprising 11.27 acres and (2) "Undeveloped Buffer Area" consisting of the undeveloped portion of the residential lots or 12.56 acres. The buffer areas are located between the developed treated area and the surrounding receiving water.
The developed and undeveloped areas of each lot will be separated by earthen berms. The berms will be constructed within each lot and will be a minimum of one foot high above existing ground level at the landward ledge of the natural buffer area. When water falls on the house and the surrounding
yard it will be directed through grading to the berm of the lot. Once it reaches the berm it will be collected in a series of inlets and pipes; and once collected within the pipe system it will be stored within the collection system and in several storage ponds.
The developed areas storage systems consisting of the inlets, pipes and storage ponds are then connected to two stormwater lift stations that transfer the stored runoff to an existing wet detention pond, known as the EV-2 pond, which is located immediately adjacent to the EV-1 project area.
There are two pumps and a wet well in each pump station. The combination of storage ponds, piping systems, the wet wells and the pump stations provide storage of the entire required treatment volume which is 61,000 cubic feet. Actually, the system has been designed to treat 65,000 cubic feet, somewhat in excess of the required treatment volume. Even when the pumps are not running these components of the system are able to completely contain the required treatment volume.
The system has been designed to capture and treat in excess of 1.5 inches of runoff. This is the runoff that would be generated from a 5.3 inch rainfall event which is expected to occur less than once per year. This l.5 inches of runoff would generate the required 61,000 cubic feet of treatment volume. In order to ensure that the design volume is not exceeded, the
applicant has limited the amount of impervious service on each lot to a maximum of 10,000 square feet.
In order to ensure that the on-lot ponds in the collection system are hydrologically isolated, they have been designed to be either completely lined or constructed with "cut- off walls" placed in soils with either a hard pan layer or a layer of low permeability. This would prevent the ponds from de-watering nearby wetlands by removing any hydrologic communication between those wetlands and the ponds. Further, the liners and cut-off walls will isolate the pond from the effects of groundwater. This will ensure that the ponds can be maintained at the designed water level and that, therefore, the collection system will have the required storage volume.
The EV-2 pond provides for wet detention treatment and was previously permitted and constructed as part of the EV-2 project. In order to accommodate the additional flow from the EV-1 site, the existing orifice will be plugged and an additional orifice will be installed. No changes will be made to the shape, depth, width, or normal water elevation of the EV-
2 pond. The EV-2 pond discharges into wetland systems that are directly connected to the intracoastal waterway.
The EV-2 pond discharges into a wetland system and has a direct hydrologic connection to the intracoastal waterway north of the Matanzas inlet. The District rules do not contain
a legal definition of the intracoastal waterway; however, for the purpose of determining whether a project discharge constitutes a direct discharge to the intracoastal waterway, the waterway includes more than the navigable channel of the intracoastal waterway. (Projects that have a direct discharge to the intracoastal waterway north of the Matanzas inlet are not required to demonstrate that the post-development peak rate of discharge does not exceed the pre-development peak rate of discharge, because this criterion was designed to evaluate the flooding impacts from rainfall events.) Flooding in water- bodies such as the intracoastal waterway is not governed by rainfall, but rather by tides and storm surges.
The system design includes a clearing and erosion control plan and specific requirements to control erosion and sediment. The system design incorporates best management practices and other design features to prevent erosion and sedimentation, including (1) capturing turbidity; (2) sodding and grassing side slopes; (3) filtering water; (4) use of siltation fences during construction; (5) removing sediment; (6) early establishment of vegetative cover; and (7) keeping water velocities low, at less than 2 feet per second.
The EV-2 pond is hydrologically isolated from groundwater influence because it was constructed with cut-off walls placed into a hard pan, impermeable layer. The EV-2 pond
appears to be working properly, with no indication of adverse groundwater influence.
The system has been designed to prevent adverse impacts to the hydro-period of remaining wetlands. The wetlands are hydrated through groundwater flow. The groundwater will still migrate to the wetlands as it did in the pre-development condition. The cut-off walls and liners in the ponds will prevent draw-down of groundwater from the wetlands. No septic tanks are planned for the project.
The system is designed based on generally accepted engineering practices and should be able to function as designed. The pumps are three inch pumps that can handle solids up to two and one-half inches in diameter. Yard grates have one-inch slots that will prevent anything larger than one inch diameter from entering the system. Additionally, solids would accumulate in the sump areas. Finally, even if there were a power outage, the system can store the full treatment volume, without discharging, until power is restored.
Flood Plain Consideration
The 100-year flood elevation for the EV-1 site is 7.0 feet NGVD. The finish flood elevation of the houses will be 8.0 feet. The streets and roadways have been designed to be flood free in accordance with the St. Johns County criteria relating to flooding.
The 10-year flood elevation for the EV-1 site is 4.1 feet NGVD. The project will result in filling 2,691 cubic feet of fill in areas below the 4.1-foot NGVD elevation which will include 2,456 cubic feet for "Hickory Hill" and 235 cubic feet for "North River." Thus, 2,691 feet of water will displaced in the 10-year floodplain of the Tolomato River as a result of the EV-1 project. This fill will result in a rise in water elevation in the Tolomato River of 0.0002 feet, which is less than the thickness of the single sheet of paper and is statistically insignificant. If other applicants were to impact the 10-year floodplain to the same extent, there would be no adverse cumulative impact in the flood storage capability of the floodplain. The Tolomato River/intracoastal waterway does not function as a floodway because it is more influenced by wind and tide than by stormwater runoff. Therefore, the project will not cause a net reduction in the flood conveyance capabilities of a floodway.
Surface Water
Each roadway and master driveway is provided with culverts to ensure redundant, multiple paths for water flow. For this reason, the wetland fill will not significantly impact the flow of water. These redundant connections also ensure that the water velocities are low, reducing the likelihood of erosion.
In order to ensure that erosion will not occur, surface water velocities will be less than two feet per second and steep slopes (greater than two percent) will be sodded. The project does not impound water other than for temporary detention purposes. The project does not divert water to another hydrologic water basin or water course.
Water Quality
The Tolomato River and Marshall Creek, its tributary, are classified as Class II water bodies pursuant to Florida Administrative Code Rule 62-302.400. The designated use for Class II water is for shellfish harvesting. The Tolomato River is the receiving water for the EV-1 project.
The Marshall Creek and Tolomato River Class II waters do not meet the applicable Class II water quality standards for total fecal coliform bacteria and for dissolved oxygen (DO). Water sampling indicates that sometimes the regulatory parameters for fecal coliform and for DO are exceeded in the natural occurring waters of Marshall Creek and the Tolomato River.
The EV-2 pond has a large surface area and the top of the water column will be the most well-oxygenated due to contact with the atmosphere. Any water discharging from the pond will come from the surface of the pond which is the water containing the highest oxygen content in the entire water column of the
pond. Thus, discharges from the EV-2 pond will not violate water quality standards for DO and the construction and operation of the project will actually improve the water quality in the receiving waters with respect to the dissolved oxygen parameter.
Bacteria such as fecal coliform, generally have a life span of a few hours to a few days. The EV-2 pond will have a detention time, for water deposited therein, of approximately
190 days. This lengthy residence time will provide an ample opportunity for die-off of any coliform bacteria in the water column before the water is discharged from the pond. Additionally, there will be substantial dilution in the pond caused by the large volume of the pond. No new sources of coliform bacteria such as septic tanks are proposed as part of the EV-1 project. The fecal coliform discharge from the pond will thus be very low in value and will lead to a net improvement in the water quality of the receiving water-body. In fact, since the commencement of construction on the Marshall Creek DRI phases, a substantial and statistically significant decrease in fecal coliform levels has been observed in the main channel of Marshall Creek.
The applicant has provided a detailed erosion control plan for the construction phase of the EV-1 project. The plan requires the use of best erosion and sediment control practices.
In any location that will have slopes exceeding a two percent gradient, sodding will be provided adjacent to roadways or embankments, thereby preventing erosion.
The EV-1 project design is based on generally accepted engineering practices and it will be able to function and operate as designed. The liner and cut-off wall components of the pond portions of the project are proven technology and are typical on such project sites which are characterized by high groundwater table and proximity to wetlands. The pump stations component of the project design is proven technology and is not unusual in such a design situation. The pump stations have been designed according to the stringent specifications provided for wastewater lift station pumps in sewer systems which operate with more frequency and duration of running times and therefore, more stressful service, than will be required for this system.
Once constructed, the surface water management system will be operated and maintained by the applicant, which is a community development district. An easement for access in, on, over and upon the property, necessary for the purpose of access and maintenance of the EV-1 surface water management system, has been reserved to the community development district and will be a permanent covenant running with the title to the lots in the project area.
The portions of the river and Marshall Creek adjacent to the project have been classified by the Department of Environmental Protection as conditionally restrictive for shellfish harvesting because of fecal coliform bacterial levels, which often exceed state water quality standards for that parameter. The boundary of the conditional shellfish harvesting area is the mean high water elevation. The EV-1 project site is located above the mean high water elevation. None of the wetland areas within the project site are able to support shellfish due to the characteristics of the wetlands and the lack of daily inundation of the high marsh portion of the wetlands. No shellfish have been observed on the EV-1 site. The EV-1 project will not result in a change in the classification of the conditionally restricted shellfish harvesting area.
The project will not negatively affect Class II waters and the design of the system and the proposed erosion controls will prevent significant water quality harm to the immediate project area and adjacent areas. The discharge from the project will not change the salinity regime or temperatures prevailing in the project area and adjacent areas.
Wetland Impact
The 23.83-acre site contains five vegetative communities that include pine, flatwood, uplands, temperate
hardwood uplands, wetland coniferous forest, wetland mixed forest and salt marsh. Several trail roads that were used for site access and forestry activities traverse the site.
The project contains 0.82 acres of wetlands. The wetland communities are typical and are not considered unique.
Most of the uplands on the main portion of the site exhibit the typical characteristics of a pine flatwood community. Some of the road-crossing areas within the EV-1 boundary are wetland pine flatwoods; these areas are dominated by pines and a canopy, but are still considered wetlands. There is also a very small area of high marsh vegetative community within the EV-1 boundary.
Most of the site, both wetlands and uplands, has been logged in the past. The wetlands are functional; however, the prior logging operations have reduced the overall wildlife value of the site, including that of the wetlands, due to the absence of mature trees. All of the wetlands on the EV-1 site are hydrologically connected to and drain to the Marshall Creek and Tolomato River systems.
The wetlands on the site are adjacent to an ecologically, important watershed. To the east of the EV-1 site, the Tolomato River and Marshall Creek are part of the Guana Marsh Aquatic Preserve. The Guana River State Park and Wildlife Management Area is also to the east of the EV-1 site.
All the wetlands and uplands on the EV-1 site are located above the elevation of the mean high water line and therefore are outside the limit of the referenced Aquatic Preserve and Outstanding Florida Water (OFW).
Direct Wetland Impact
Within the site boundary there will be a total of 0.82 acres of wetland impacts in seven areas. MCCDD proposes to fill
0.75 acres of the wetlands to construct roads to provide access to the developed uplands and selectively clear 0.07 acres of the mixed forested wetlands to construct three pile-supported pedestrian boardwalks. The fill impacts include 0.29 acres within the mixed forested wetlands, 0.32 acres within the coniferous wetlands, and 0.14 acres within the high salt marsh area. The direct impacts to wetlands and other surface waters from the proposed project are located above the mean high water line of Marshall Creek and the Tolomato River.
The first impact area is a 0.25-acre impact for a road crossing from the EV-2 parcel on to the EV-1 site. 0.14 acres of the 0.25 acres of impact will be to an upper salt marsh community and 0.11 acres of impact is to a mixed forested wetland. This impact is positioned to the south of an existing trail road. The trail road has culverts beneath it so there has been no alteration to the hydrology of the wetland as a result of the trail road. This area contains black needle rush and
spartina (smooth cord grass). The black needle rush portion of this area may provide some foraging for Marsh Wrens, Clapper Rails and mammals such as raccoons and marsh rabbits. The fresh-water forested portion of this area, which contains red maple and sweet gum, may provide foraging and roosting and may also be used by amphibians and song birds. Wading birds would not likely use this area because the needle rush is very sharp- pointed and high and will not provide an opportunity for these types of birds to forge and move down into the substrate to feed. The wading birds also would be able to flush very quickly in this area and their predators would likely hide in this area.
The second impact area is a 0.25-acre impact to a pine flatwoods wetland community and will be used for a road crossing. It is in a saturated condition most of the time. The species that utilize this area are typically marsh rabbits, possums, and raccoons.
The third impact area is a 0.18-acre impact to a mixed forested wetlands for a roadway crossing on the south end of the project. The impact is positioned within the area of an existing trail road. The trail road has culverts beneath it, so there will be no alteration to the hydrology of the wetland as a result of the road. This area is characterized by red maple, sweet gum and some cabbage palm. There will be marsh rabbits, raccoons, possums, some frogs, probably southern leopard frogs
and green frogs in this area. Wading birds would not likely use this area due to the same reasons mentioned above.
The fourth impact area is a 0.07-acre impact for a driveway for access to Lot two. This area is a mixed forested wetland area, having similar wildlife species as impact areas three and seven.
The fifth impact area is a 0.02-acre clearing impact for a small residential boardwalk for the owner of Lot six to access the uplands in the back of the lot. The proposed boardwalk will be completely pile-supported and will be constructed five feet above the existing grade. This area is a mixed forested wetland area, having similar species as impact areas three and seven. Wading birds would also not likely use this area for the same reasons delineated above as to the other areas.
The sixth impact area is also a 0.02-acre clearing impact similar to impact area five. The proposed board walk would be located on Lot five and be completely pile-supported five feet above the existing grade. This area is a mixed forested wetland area similar to impact area five. Deer will also use this area as well as the rest of the EV-1 site. Wading birds will probably not use this area due to the same reasons mentioned above.
The seventh impact area is a 0.03-acre impact for two sections of a public boardwalk (previously permitted) for the Palencia Development. The proposed boardwalk will be completely pile-supported, five feet above the existing grade. This is a pine-dominated area with similar wildlife species to impact area two.
All these wetlands are moderate quality wetlands. The peripheral edges of the wetlands will be saturated during most of the year. Some of the interior areas that extend outside the EV-1 site will be seasonally inundated.
Secondary Impacts
The applicant is addressing secondary impacts by proposing 8.13 acres of 25-foot wide (or greater) upland buffers and by replacing culverts at the roadway crossings to allow for wildlife crossing and to maintain a hydrologic connection. Mitigation by wetland preservation is proposed for those areas that cannot accommodate upland buffers (i.e., the proposed impact areas).
Under the first part of the secondary impact test MCCDD must provide reasonably assurance that the secondary impact from construction, alteration and intended or reasonably expected uses of the project will not adversely affect the functions of adjacent wetlands or other surface waters.
With the exception of wetland areas adjacent to the road crossings, MCCDD proposes to place upland buffers around the wetlands where those potential secondary impacts could occur. The buffers are primarily pine flatwoods (pine dominated with some hardwood). These buffers encompass more area than the lots on the EV-1 site. The upland buffers would extend around the perimeter of the project and would be a minimum of 25 feet and a maximum of 50 feet wide, with some areas actually exceeding 50 feet in width. The buffers along the Marshall Creek interface and the Tolomato River interface will be 50 feet and the buffers that do not front the tidal marshes (in effect along the interior) will be 25 feet. These upland buffers will be protected with a conservation easement.
No activities, including trimming or placement of structures are allowed to occur within the 25-foot upland buffers. These restrictions ensure that an adequate buffer will remain between the wetlands and the developed portion of the property to address secondary impacts. The restriction placed on the 25-foot buffers is adequate to prevent adverse secondary impacts to the habitat value of the off-site wetlands.
No types of structures are permitted within the 50- foot buffers. However, hand-trimming will be allowed within half of that length along the lot interface of the wetland. Within that 50 percent area, trimming below three-feet or above
25-feet is prohibited. Trimming of branches that are three inches or less in diameter is also prohibited. Lot owners will be permitted to remove dead material from the trimming area.
The 50-foot buffers will prevent secondary impacts because there will still be a three-foot high scrub area and the
50 foot distance provides a good separation between the marsh which will prevent the wading birds, the species of primary concern here, from flushing (being frightened away).
None of the wetland area adjacent to uplands are used by listed species for nesting, denning, or critically important feeding habitat. Species observed in the vicinity of Marshall Creek or the adjacent Tolomato River wetland aquatic system include eagle, least tern, brown pelican, and wading birds such as the woodstork, tri-color blue heron, and snowy egrets. Wading Birds will typically nest over open water or on a island surrounded by water. Given the buffers proposed by MCCDD, the ability of listed species to forage in the adjacent wetlands will not be affected by upland activities on the EV-1 site. The adjacent wetlands are not used for denning by listed species.
Under the second part of the secondary impact test, MCCDD must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the
uplands to aquatic or wetland dependent species for enabling nesting or denning by these species.
There are no areas on the EV-1 site that are suitable for nesting or denning by threatened or endangered species and no areas on the EV-1 site that are suitable for nesting or denning by aquatic and wetland dependent species. After conducting on-site reviews of the area, contacting the U.S. Fish and Wildlife Service and the Florida Wildlife Commission and reviewing literature and maps, Mr. Esser established that the aquatic and wetland listed species are not nesting or denning in the project area.
There is a nest located on uplands on the first island east of the project site, which was observed on October 29, 2002. The nest has been monitored informally some ten times by the applicants, consultants and several times by personnel of the District. The nest was last inspected on October 14, 2003. No feathers were observed in the nest at that time. It is not currently being used and no activity in it has been observed. Based on the absence of fish bones and based upon the size of the sticks used in the nest (one-half inch) and the configuration of the tree (crotch of the tree steeply angled) it is very unlikely that the nest is that of an American Bald Eagle. It is more likely the nest of a red-tailed hawk.
Historical and Archeological Resources
Under the third part of the secondary impact test and as part of the public interest test, any other relevant activities that are very closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical or archeological resources must be considered.
When making a determination with regard to this part of the secondary impact test the District is required by rule to consult the Division of Historical and Archeological Resources (the Division) within the Department of State. The District received information from the Division and from the applicant regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division, the Division indicated that there would be no adverse impacts from this project to significant historical or archeological resources.
As part of the Marshall Creek DRI application, a Phase I archeological survey was conducted for the entire area of the DRI, including the EV-1 project area. The Phase I survey of the Marshall Creek DRI area revealed nine archeological sites. At the end of the Phase I survey, five of the nine sites were recommended to be potentially eligible for the National Register of Historical places and additional work was recommended to be
done on those five sites, according to Dr. Ann Stokes, the archeologist who performed the Phase I survey and other archeological investigation relevant to this proceeding.
One of the sites considered eligible for listing on the National Register of Historic Places was site 8SJ3146. Site 8SJ3146 was the only site found in the area near the EV-1 project site. The majority of the EV-1 project site lies to the east of this archeological site. The entry road leading into EV-1 crosses the very southeastern edge or corner of the 8SJ3146 archeological site.
Shovel tests for archeological remains or artifacts were conducted across the remainder of the EV-1 property and were negative. Ceramic shards were found in one of the shovel tests (shovel test number 380), but it was determined by
Dr. Stokes that that ceramic material (pottery) had been within some type of fill that was brought into the site and the ceramics were not artifacts native to that site. Therefore, it was not considered a site or an occurrence. There was no evidence of any human remains in any of the shovel test units and there was nothing to lead Dr. Stokes to believe that there were any individuals buried in that area. (EV-1)
Because a determination was made that 8SJ3146 was a potentially significant site, a "Phase II assessment" was conducted for the site. During the Phase II assessment five
tests units were established on the site to recover additional information about the site and assess its significance. The test unit locations (excavations) were chosen either to be next to an area where there were a lot of artifacts recovered or where an interesting type of artifact had been recovered. Test units one through four contained very few or no artifacts. Test unit five however, yielded faunal bones (animal remains), pottery and a post mold (post molds are evidence of support posts for ancient structures).
After the Phase II assessment was conducted, site 8SJ3146 was considered to be significant, but the only part of the site that had any of the data classes (artifact related) that made it a significant site was in the area of the very southwest portion of 8SJ3146, surrounding test unit five.
Dr. Stokes recommended that the area surrounding test unit five in the very southwestern portion of 8SJ3146 be preserved and that the remainder of the site would not require any preservation because the preservation of the southwestern portion of the site was the only preservation area which would be significant archeologically and its preservation would be adequate mitigation. That southwestern portion of the site, surrounding unit five, is not on the EV-1 site.
Dr. Stokes recommended to the applicant and to the Division that a cultural resource management plan be adopted for
the site and such a plan was implemented. A Phase I cultural resource survey was also conducted on the reminder of the EV-1 site, not lying within the boundaries of 8SJ3146. That survey involved shovel tests across the area of the EV-1 project area and in the course of which no evidence of archeological sites was found. Those investigations were also reported to the Division in accordance with law.
The preservation plan for site 8SJ3146, as to preservation of the southwest corner, is now called an archeological park. That designation was shown to be adequate mitigation for this site. The preservation area is twice as large as the area originally recommended by Dr. Stokes to be preserved; test unit five is within that preservation area.
Dr. Stokes's testimony and evidence are not refuted by any persuasive countervailing evidence and are accepted. They demonstrate that the construction and operation of the EV-1 project will not adversely affect any significant archeological or historical resources. This is because any effects to site 8SJ3146 are mitigated by the adoption of the preservation plan preserving the southwest portion of that archeological site.
Under the fourth part of the secondary impact test, the applicant must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or result in water
quality violations. MCCDD has demonstrated that any future phase or expansion of the project can be designed in accordance with the District's rule criteria.
Mitigation of Adverse Impacts
The permit applicant has proposed mitigation to offset adverse impacts to wetland functions as part of its ERP application. The proposed mitigation consists of 0.05 acres of wetlands restoration, 12.07 acres of wetland preservation (including 6.47 acres of mixed forested wetlands and 5.60 acres of salt marsh), 10.49 acres of upland preservation (which includes buffers and additional upland areas) and 0.09 acres of salt marsh creation.
The mitigation for the EV-1 project will occur on-site and off-site; 10.49 acres of upland buffer are being committed to the project. The upland buffers are on-site; the rest of the mitigation is off-site and is adjacent to EV-1. There will be
5.6 acres of salt marsh preservation and 6.47 acres of forested wetland preservation. All of the mitigation is on land lying above the mean high water elevation and is outside the aquatic preserve and the OFW. The salt marsh restoration will occur by taking out an existing trail road that is in the northeast section of the site and the salt marsh creation site is proposed at the tip of lot number one.
The preservation of wetlands provides mitigation value because it provides perpetual protection, ensuring that development will not occur in those areas, as well as preventing agricultural activities, logging and other relatively unregulated activities from occurring there. This will allow the conserved lands to mature and to provide more forage and habitat for wildlife that would use those areas. The functions that are currently being provided by the wetlands to be impacted will be replaced and exceeded in function by the proposed mitigation. Additionally, MCCDD did not propose any impacts on site that could not be offset by mitigation. The EV-1 project will not adversely affect the abundance and diversity and habitat of fish and wildlife. The mitigation for the proposed project is also located within the same drainage basin as the area of wetlands to be adversely impacted.
MCCDD has proposed mitigation that implements all or part of a plan of regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted.
The plan of regional ecological value consists of the land identified in the DRI as well as the lands that have been permitted as mitigation up to date and the proposed EV-1 mitigation lands. The plan includes lands that have been added to the plan since the approval of the Marshall Creek DRI.
The mitigation proposed for the impact to wetlands and other surface waters associated with the project is contiguous with the Guana River Marsh Aquatic Preserve, with previously preserved wetlands and upland islands and with Marshall Creek. When implemented the mitigation plan will create wetlands and preserve wetlands and uplands with functions similar to the impacted wetlands and those wetlands will be connected through wetland and upland preservation to the Guana River Marsh Aquatic Preserve.
Corridors and preservation areas important for wildlife movement throughout the whole Palencia site have been set aside. As development progresses towards the eastern portion of the Marshall Creek site, it is important to add preservation areas to the whole larger plan. The lands proposed to be added as mitigation for the EV-1 project will add to the value of the previously preserved lands from other phases of the DRI and development by helping to maintain travel corridors and forage areas for wildlife, to maintain water quality in the adjacent marsh and to maintain fish and wildlife benefits of the aquatic preserve.
MCCDD has provided more mitigation than is typically required by the District for such types of impact. The upland preservation ratios for example range from about three-to-one to twenty-to-one. MCCDD is providing upland preservation at a near
twenty-to-one ratio. Salt marsh preservation ratios are typically required to be sixty to one and MCCDD is providing mitigation at twice that ratio. Concerning fresh-water forested preservation, the District usually requires mitigation at a twenty to twenty-five-to-one ratio and the applicant is proposing a thirty to one preservation ratio. Additional mitigation will be provided beyond what is required to mitigate the adverse impacts for each type of impact anticipated.
Although proposing more mitigation may in some instances not provide greater long-term ecological value than the wetlands to be adversely affected, the mitigation proposed by MCCDD will provide greater long-term ecological value.
The Petitioners contend that a chance in circumstances has occurred which would adversely affect the mitigation plan as a plan of regional ecological value. They claim its efficacy will be reduced because of a proposed development to a tract of land known as the Ball Tract which would, in the Petitioners' view, sever connection between the Marshall Creek site and the 22,000-acre Cummer Trust Tract also known as "Twelve mile swamp." Although a permit application has been submitted to the Florida Wildlife Commission for the Ball Tract property, located northwest of Marshall Creek and across U.S. Highway 1 from Marshall Creek and the EV-1 site, no permit has been issued by the District for that project. Even if there were impacts
proposed to wetlands and other surface waters as part of any development on the Ball Tract, mitigation would still be required for those impacts, so any opinion about whether the connection would be severed between the project site, the Marshall Creek site and the Cummer Trust Tract is speculative.
The Petitioners also sought to establish changed circumstances in terms of reduced effectiveness of the plan as a plan of regional ecological value because, in their opinion, Map H, the master plan, in the Marshall Creek development order plan, shows the EV-1 project area as being located in a preservation area. However, Map H of the Marshall Creek DRI actually shows the designation VP for "Village Parcel" on the EV-1 site and shows adjacent wetland preservation areas. Although Map H shows a preservation area adjacent to the EV-1 parcel, the Petitioners infer that EV-1 was not proposed for development. That is not the case. Map H contains a note that the preservation areas (as opposed to acreages) are shown as generalized areas and are subject to final design, road crossings and final wetland surveys before they were exactly delineated. Therefore, in the DRI plan, the EV-1 area was not actually designated a preservation area.
Surface Water Diversion and Wetland Draw-Down
Water will not be diverted to another basin or water course as a result of the EV-1 project. Water captured by the
treatment system and discharged from the EV-2 pond, will flow back through wetlands that meander through the project site. The EV-1 project will not result in significant diversion of surface waters.
The project will also not result in a draw-down of groundwater that will extend into adjacent wetlands. Each of the storage ponds on lots 1, 3, and 7 and between lots 9 and 10 has been designed to include cut-off walls around the perimeter of the ponds and the storage pond on lot 7 will be completely lined. The cut-off walls will be installed in a soil strata that has very low permeability. The cut-off walls and liner will restrict the movement of groundwater from the wetlands into the storage ponds. As a result, the zone of influence of each storage pond will not extend far enough to intercept with the adjacent wetlands.
The Public Interest Test
The public interest test has seven criteria, with each criteria having equal weight. The public interest test applies to the parts of the project that are in, on or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on or over an OFW or may significantly degrade an OFW; then the project must be clearly in the public interest. It is a balancing test. The EV-1 project, however, is not located in an OFW.
The Public Health Safety and Welfare Criteria
The parts of the project located in, on and over wetlands will not adversely affect the public health, safety or welfare. These parts of the project will not cause any adverse impact on flood stages or flood plains and discharges from the system will not harm shell fishing waters. This factor is thus considered neutral.
Conservation of Fish, Wildlife or Their Habitat
The mitigation from this project will offset any adverse impacts to fish wildlife or their habitat. Therefore this factor is considered neutral as well.
Fishing, Recreational Value and Marine Productivity
There is no recreational activity or fish nursery areas within the project limits and the project will not change the temperature of the aquatic regime. None of the impacts associated with the EV-1 site are within the mean high water line of the marine aquatic regime. The activities are not going to interact with the tidal regime and they cause negligible impacts.
Concerning marine productivity, the wetland impacts are landward of the marine system; therefore, impact on marine productivity is not applicable. Thus this factor is considered neutral.
Temporary or Permanent Nature
The project will be of a permanent nature. Even though the project is permanent, this factor is considered neutral because the mitigation proposed will offset any permanent adverse impact.
Navigation and the Flow of Water
The parts of the project located in, on and over wetlands will not adversely affect navigation. These parts will also not impound or divert water and therefore will not adversely affect the flow of water. The project has been designed to minimize and reduce erosion. Best management practices will be implemented, and therefore, the project will not cause harmful erosion. Thus this factor is also considered neutral.
Current Condition and Relative Value of Functions Being Performed
The current condition and relative value of the functions being performed by the areas affected by the proposed activity, wetlands areas, will not be harmed. This is because any adverse impacts to the wetlands involved will be more than offset by the mitigation proposed to be effected. Therefore, there may well be a net gain in the relative value and functions being performed by the natural areas and the mitigation areas combined. Thus this factor is neutral.
Works of the District
The proposed project will not cause any adverse impact to a work of the District established in accordance with Section 373.086, Florida Statutes.
Shoaling
The construction and operation of the proposed project to the extent it is located in, on or over wetlands or other surface waters will not cause any harmful shoaling.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003)
MCCDD's application for an ERP is governed by Rule Chapter 40C-4, Regulation of Surface Water Management Systems and Rule Chapter 40C-42, Florida Administrative Code, Regulation of Stormwater Management Systems. Rule Chapters 40C-4 and 40C-
42 implement, in part, Part IV of Chapter 373, Florida Statutes.
Pursuant to these laws and regulations the District has regulatory jurisdiction over the permit applicant and the project. Fla. Admin. Code R. 40C-4.041(2)(b)8.
The applicant has the burden in proof in demonstrating that it qualifies for the ERP. Department of Transportation v.
J.W.C., Co., Inc., 396 So. 2d 778, 789 (Fla. 1st DCA 1981). The
applicant has the burden of providing reasonable assurances that
the proposed project will not violate the applicable District rules or Florida Statutes. The applicant's burden is one of "reasonable assurances, not absolute guarantees." Manasota-88, Inc., v. Agrico Chemical, 12 F.A.L.R. 1319, 1325 (DER 1990),
aff'd 576 So. 2d 781 (Fla. 2d DCA 1991). This "reasonable assurance" standard has been judicially defined to require an applicant to establish "a substantial likelihood that the project will be successfully implemented." Metro Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
Reasonable assurance must deal with reasonable foreseeable contingencies. This standard does not require an absolute guarantee that violation of a rule is a scientific impossibility, only that its non-occurrence is reasonably assured by accounting for reasonably foreseeable contingencies. Ginnie Springs, Inc., v. Watson, 21 F.A.L.R. 4072, 4080, 4103 (DEP 1999); Manasota-88, Inc., v. Agrico Chemical, 12 F.A.L.R. at 1325; See also Adams v. Resort Village Utility, 18 F.A.L.R. 1682, 1701 (DEP 1996). In assessing the risk to resources or water quality, the District is not required to assume a "worst case scenario" unless such a scenario is "reasonably foreseeable." Florida Audubon Society v. South Florida Water Management District, 14 F.A.L.R. 5518, 5524 (SFWMD 1992); Rudloe
v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426, 3440-41 (DER
1988).
Once an applicant has presented evidence and made a preliminary showing of reasonable assurance, a challenger must present "contrary evidence of equivalent quality" to that presented by the permit applicant. DOT v. J.W.C., 396 So. 2d at 789. "If the Petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted- assuming that the applicant's preliminary showing before the hearing officer warrants a finding of 'reasonable assurances'- then the permit must be approved." Id. Simply raising "concerns" or even informed speculation about what "might occur" is not enough to carry the Petitioner's burden. See Chipola Basin Protective Group, Inc., v. Florida Department of Environmental Protection, 11 F.A.L.R. 467, 480-81 (DER 1988). Thus, MCCDD is not required to disprove all the "worst case scenarios" or "theoretical impacts" raised by the Petitioners. Lake Brooklyn Civic Association, Inc., v. Florida Rock Industries, 15 F.A.L.R. 4051, 4056 (Fla. LWAC 1993); Hoffert v. St. Joe Paper Company, 12 F.A.L.R. 4972, 4987 (DER 1990).
Further, the proceeding before the Administrative Law Judge is a de novo one, and the proper test is not whether the District properly evaluated the original application, but whether the application, as presented in evidence to the Administrative Law Judge, provides reasonable assurance of compliance with the statutory and rule permitting standards.
See McDonald v. Department of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977); D.O.T. v. J.W.C. supra.
In accordance with Section 120.57(1)(j), Florida Statutes, the standard of proof in this proceeding is to a preponderance of the evidence.
Standing
The standing of the Petitioners to initiate this proceeding under Section 120.569, Florida Statutes, is at issue. On July 16, 2003, the Petitioners filed a motion to amend the petition or alternatively to intervene. The Motion sought to amend the Petition to assert additional standing under Section 403.412(5), Florida Statutes (2002). The Motion also sought intervention under Section 403.412(5), Florida Statutes, after the hearing, should one Petitioner be found to have standing under Section 120.569 while the other Petitioner is found to lack such standing. The opposing parties did not object to such intervention, providing the Petitioner complied with the elements of Section 403.412(5). By order of Judge Stampelos on July 23, 2003, the Motion to Amend Standing under Section 403.412(5) was denied and the Motion to Allow Intervention under Section 403.412(5), subject to compliance with that provision, was granted. Under Section 120.569, a person whose substantial interests will be affected by proposed agency action may
petition for an administrative hearing. §§ 120.52(12)(c) and 120.569(1), Fla. Stat. (2003).
The judicial standards for determining whether a third party has standing to challenge an agency decision are:
(1) that the party will suffer an injury-in-fact which is of sufficient immediacy, and (2) that the injury is of the type or nature which the proceeding is designed to protect. Ameristeel Corp., v. Clark, 691 So. 2d 473 (Fla. 1997); Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d
478 (Fla. 2d DCA 1981). This judicial test for standing was derived from analogous federal law. Montgomery v. Department of Health and Rehabilitative Services, 468 So. 2d 1014 (Fla. 1st DCA 1985). The injury-in-fact part of the test focuses on whether the injury arising from the agency action is of a specific, real immediacy warranting relief and is not remote or speculative. Town of Palm Beach v. Department of Natural Resources, 577 So. 2d 1383 (Fla. 4th DCA 1981). The zone of interest portion of the test focuses on whether the type of injury asserted falls within the scope of the agency's statutory authority to protect. Boca Raton Mausoleum Inc., v. State Department of Banking and Finance, 511 So. 2d 1060 (Fla. 1st DCA 1987). The two parts of this standing test are inherently linked because the nature of the injury required to be shown to satisfy the first part of the test is determined by the statutes
or rules which define the scope of the agency's authority which is the subject of the proceeding (i.e., the "zone of interest"). Friends of the Everglades, Inc., v. Board of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 189 (Fla. 1st DCA 1992) (the nature of the injury which is required to demonstrate standing will be determined by the statute which defines the scope and nature of the proceeding). Therefore, it is Chapter 373 and the District's rules which define the scope of this proceeding and the nature of the injury those laws are designed to protect.
The Petitioners have the burden to prove standing under Section 120.569, Florida Statutes. See generally Department of Health and Rehabilitative Services v. Alice P.,
367 So. 2d 1045 (Fla. 1st DCA 1979) (the burden is on Petitioner to establish standing). This burden is not whether the Petitioners have or will prevail on the merits, but rather whether the Petitioners have presented sufficient proof of injury to their asserted interests within the two-prong standing test. See Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000). The law does not require that the Petitioners own land near or adjacent to the Palencia development in order to establish standing. Friends of the Everglades, supra.
Petitioner Larsen presented evidence that she fished and recreated on the Tolomato River and the Guana River State Park, across the Tolomato River from the subject Palencia development and in close proximity thereto. She testified that she will continue to do so. Petitioner Larsen fished along the shoreline of Tolomato River and in the area of the Guana Dam, has viewed wildlife in the immediate vicinity of the Palencia development and the EV-1 site. It is her intention to engage in such future uses. These uses are sufficient to establish an injury-in-fact regarding matters that fall within the protection of the District's permitting rules and statutes. Consequently, Petitioner Larsen has standing under Section 120.569, Florida Statutes. See Save Our Bays, Air and Cabals, Inc. v. Tampa Bay Desal, 24 F.A.L.R. 425 (DEP 2001) (the use of waters and wetlands of the Big Bend area for fishing and boating recreational activities established Petitioner's standing).
Petitioner Larsen also contends that the project will adversely affect significant historical and archaeological resources under Section 267.061, Florida Statutes, as treated in District Florida Administrative Code Rule 40C-302(1)(A)(4). Larsen, however, presented only evidence of her general advocacy and interest in protection of indigenous sites and failed to show any injury-in-fact of sufficient immediacy to herself as a result of the approval of the EV-1 project. Larsen's advocacy
for the protection of indigenous sites, although sincere, itself does not constitute a concrete, non-speculative injury in-fact. Accordingly, Larsen lacks standing to challenge the application as to District Florida Administrative Code Rule 40C- 4.302(1)(a)(6).
Petitioner Billie testified that he has visited the Palencia property and observed wildlife, and that at some indistinct time in the past he had fished at the Guana Dam. He testified that he used the Tolomato River on three occasions in 2003, although they were after this proceeding was being litigated. However, unlike Larsen, he did not indicate any intention in the future to fish or use the Tolomato River. Consequently, he did not establish an injury-in-fact of sufficient immediacy to warrant standing regarding the protection and conservation of fish and wildlife since it is speculative that Petitioner Billie will ever use and recreate in the receiving waters, regardless of whether the EV-1 project is approved. See Village Park Mobile Home Association Inc. v.
State Department of Business Regulation, 506 So. 2d 426 (Fla. 1st DCA 1987) (speculative harm fails to establish standing).
Petitioner Billie also asserts that the proposed project will adversely affect significant historical and archeological resources under the protective criterion of Florida Administrative Code Rule 40C-4.302(1)(a)6. Like
Petitioner Larsen, Petitioner Billie only presented evidence of general involvement with issues concerning indigenous sites and failed to show a concrete, non-speculative injury-in-fact personal to himself as the result of any approval of the EV-1 project. While Petitioner Billie, as a Native-American, has a cultural link and affinity to the question of preservation of indigenous sites, this alone is insufficient to establish an injury-in-fact personal to himself under the facts presented in this proceeding. Accordingly, under the facts of this case, Petitioner Billie lacks standing to challenge the application of Florida Administrative Code Rule 40C-4.302(1)(a)(6).
Although Petitioner Billie lacks standing under Section 120.569, Florida Statutes, pursuant to Judge Stampelos' Order of July 23, 2003, Billie is granted intervention as party on the side of Petitioner Larsen, as provided in Section 403.412(5), Florida Statutes. Petitioner Billie established that he was born and currently resides in Florida. Consequently, he has established that he is a citizen of the state for purposes of Section 403.412(5), Florida Statutes. Environmental Resource Permit
The District's requirements applicable to the ERP application are found in Florida Administrative Code Rules 40C-
4.301 and 40C-4.302. These conditions are further explained in the "applicant's handbook: Management and Storage of Surface
Waters" (AH), adopted by reference in Florida Administrative Code Rule 40C-4.091(1)e. These rules provide as follows:
Rule 40C-4.301 Conditions for Issuance of [ERP] Permits:
In order to obtain a standard, individual, or conceptual approval permit under this Chapter or Chapter 40C-40, Florida Administrative Code, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:
Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
Will not cause adverse flooding to on- site or off-site property;
Will not cause adverse impacts to existing surface water storage and conveyance capabilities;
Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62- 3, 62-4, 62-302, 62-520, 62-522, and 62-550, Florida Administrative Code, including any antidegradation provisions of paragraphs 62- 4.2242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, Florida Administrative Code, and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), Florida Administrative Code, will be violated;
Will not cause adverse secondary impacts to the water resources;
Will not adversely impact the maintenance of surface or groundwater levels or surface water flows established in
Chapter 40C-8, Florida Administrative Code;
Will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes;
Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
Will be conducted by an entity with the 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; and
Will comply with any applicable special basin or geographic area criteria established in Chapter 40C-41, Florida Administrative Code.
If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant must comply with the requirements set forth in subsection of
12.2.4.5 of the Applicant's Handbook: Management and Storage of Surface Waters.
The standards and criteria, including the mitigation provisions and the provisions for elimination or reduction of impacts, contained in the Applicant's Handbook: Management and Storage of Surface Waters adopted by reference in Rule 40C-4.091, Florida Administrative Code, shall determine whether the reasonable assurances required by subsection 40C-4.301(1) and Rule 40C- 4.302, Florida Administrative Code has been provided.
40C-4.302 Additional Conditions for Issuance of Permits
In addition to the conditions set forth in Rule 40C-4.301, Florida Administrative Code in order to obtain a standard, individual, or conceptual approval permit under this chapter or Chapter 40C-40,
Florida Administrative Code an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system:
Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 12.2.3 through 12.2.3.7 of the Applicant's Handbook: Management and Storage of Surface Waters:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 12.2.8 through 12.2.8.2 of the Applicant's
Handbook: Management and Storage of Surface Waters adopted by reference in Rule 40C- 4.901, Florida Administrative Code.
Located in, adjacent to or in close proximity to Class II waters or located in Class II waters or Class III waters classified by Department as approved, restricted or conditionally restricted for shellfish harvesting as set forth or incorporated by reference in Chapter 62R-7, Florida Administrative Code will comply with the additional criteria in subsection 12.2.5 of the Applicant's Handbook: Management and Storage of Surface Waters adopted by reference in Rule 40C-4.091, Florida Administrative Code.
Which constitute vertical seawalls in estuaries or lagoons, will comply with the additional criteria provided in subsection
12.2.6 of the Applicant's Handbook: Management and Storage of Surface Waters adopted by reference in Rule 40C-4.091, Florida Administrative Code.
When determining whether a permit applicant has provided reasonable assurances that District permitting standards will be met, the District shall take into consideration the applicant's violation of any Department rules adopted pursuant to Sections 403.91-403.929, Florida Statutes (1984 Supp.), as amended, which the District had the responsibility to enforce pursuant to delegation, or any District rules adopted pursuant to Part IV, Chapter 373, Florida Statutes relating to any other project or activity and efforts taken by the applicant to resolve these violations. The Department's delegation to the District to enforce Department rules is set forth in the Operating Agreement concerning Strom water Discharge Regulation and Dredge and Fill Regulation, dated January 4, 1988; Operating Agreement concerning Management and Storage of Surface Water Regulation and Wetland Resource Regulation between the St. Johns River Water Management District and
Department of Environmental Regulation, dated August 28, 1992; and Operating Agreement Concerning Regulation Part IV, Chapter 373, Florida Statutes between St. Johns River Water Management District and Department of Environmental Protection dated August 25, 1994, all incorporated by reference in Rule 40C-4.091, Florida Administrative Code.
Fla. Admin. Code. R. 40C-4.301(1)(a-c)
The requirements contained in paragraphs 40C- 4.301(1)(a), (b) and (c) have been met because MCCDD has demonstrated that the EV-1 project complies with the applicable presumptive criteria in Section 10.2.1, A.H.
Section 10.2.1, A.H., provides that:
It is presumed that a system meets the standards listed in paragraphs 9.1.1.(a) through (c) if the system meets the following criteria:
The post-development peak rate of discharge must not exceed the pre- development peak rate of discharge for the storm event as prescribed in Section 10.3.
The post-development volume of direct runoff must not exceed the pre-development volume of direct runoff for systems as prescribed in subsections 10.4.2 and 10.4.3.
Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other watercourses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resources (See section 10.5).
Flows of adjacent streams, impoundments or other watercourses must not be decreased so as to cause adverse impacts (See section 10.6).
The standards listed in Section 9.1.1(a) through (c), ERP A.H., are identical to the requirements in Rule 40C- 4.301(1)(a) through (c), Florida Administrative Code.
MCCDD was not required to demonstrate that the post- development peak rate of discharge will not exceed the pre- development peak rate of discharge for the 25-year, 24-hour duration storm because such a showing is not required for "those systems which discharge directly into . . . the Intracoastal Waterway north of the Matanzas Inlet." Section 10.3.2(a), A.H. The District's rules do not contain a definition of Intracoastal Waterway. Testimony from the District's expert witness explained that this criterion is a "rainfall-driven criterion," designed to evaluate the flooding impacts from rainfall events, and that the water bodies named in the rule were exempted from this requirement because they are large, tidally influenced waterbodies where flooding is not governed by rainfall, but rather by tides and storm surges. The District's expert opined that in the areas of those named waterbodies, the floodplain becomes a function of these large waterbodies and does not depend or rainfall events. Thus, he determined that the Intracoastal Waterway would include the waterbody itself and the
wetlands in and adjacent to the floodplain that have a direct hydrologic connection to it, and concluded that since the proposed project discharges into a wetland system that has a direct hydrologic connection to the Intracoastal Waterway north of the Matanzas Inlet, the exemption was applicable.
The only definition of "direct discharge" in this District's rules is contained in Section 2.0(9) of the stormwater handbook and pertains to direct discharges to classified shellfish waters. However, the rule gives examples of direct discharges and appears to emphasize the importance of connectivity to the shellfish waters. For example, it cites as an example of direct discharge to classified shellfish waters "a discharge without entering any other waterbody or conveyance prior to release to the [classified shellfish waterbody]."
While the concern in the instant case relates to flooding rather than water quality, the emphasis on connectivity as a measure of whether the discharge is direct is analogous.
The District's construction or interpretation of its own rules which it is charged to administer is to be given great deference. Citizens of the State of Florida v. Wilson, 568 So. 2d 1269 (Fla. 1990); Maclen Rehabilitation Center v. DHRS, 588 So. 2d 12 (1st DCA 1991). See also Falk v. Beard, 614 So. 2d 1086 (Fla. 1993).
Section 10.2.1(b), A.H., does not apply because the system will not be discharging to a landlocked lake and it is not located in an area for which separate basin criteria have been established. See Sections 10.4.2 and 10.4.3, A.H.
The preponderant evidence demonstrates that the EV-1 project will not alter floodways, floodplains or levels of flood flows or velocities of adjacent watercourses such as streams so as to adversely impact the off-site storage and conveyance capabilities of the water resource, in this instance, the Tolomato River. See Section 10.5.1, A.H. Since each of the traversing works will have one or more culverts, water will be free to move back and forth and the crossings will not impound or dam water. Therefore, the traversing works associated with the project will not cause an increase in the 100-year flood elevation. Further, MCCDD provided an analysis showing that, excluding the fill associated with traversing works, fill proposed in the 10-year floodplain translates into a 0.0002-foot rise in the water elevation over the area encompassed by MCCDD's frontage on the Tolomato River flood plain. This amount of increase is statistically insignificant. Moreover, flooding in water bodies such as the Intracoastal Waterway is governed by tides and storm surges. Thus, MCCDD has provided reasonable assurance that the singular impact will not be harmful to the water resources and that if all other persons who could impact
the Tolomato River by floodplain encroachment did so to the same degree as MCCDD proposes, the cumulative impacts would not be harmful to the water resources of the District. Therefore, the off-site storage and conveyance capabilities of the water resource will not be adversely impacted and the requirements of Section 10.2.1(c), A.H., have been met.
Section 10.2.1(d), A.H., does not apply because the system will not be impounding water other than for temporary wet detention storage. See Section 10.6, A.H.
Fish and Wildlife
Florida Administrative Code Rule 40C-4.301(1)(d), and Sections 9.1.1(d), 12.1.1(a), and 12.2, et. seq., A.H., require that construction and operation of the system must not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Elimination or Reduction of Impacts
In order to qualify for an ERP, an applicant must first eliminate or reduce adverse impacts to the functions of wetlands or other surface waters caused by a proposed system, by implementing practical design modifications as described in Section 12.2.1.1, ERP-A.H. However, Section 12.2.1.1, ERP-A.H., only requires an elimination and reduction analysis when: (1) a "proposed system will result in adverse impacts to wetlands functions and other surface water functions such that it does
not meet the requirements of subsection 12.2.2 through 12.2.3.7," or (2) neither exception within Section 12.2.1.2, ERP-A.H., applies. Section 12.2.1.2, ERP-A.H., provides:
12.2.1.2 The District will not require the applicant to implement practicable design modifications to reduce or eliminate impact when:
* * *
b. the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.
The two requirements of Section 12.2.1.2.b, ERP-A.H., have been met in this case. It has previously been ruled on October 13, 2003, during a hearing on the District's Motion-in- Limine that the "plan" litigated in the Parcel D proceeding (DOAH Case Nos. 00-2230 and 00-2231) constituted a plan of regional ecological value. In that case, the "plan" consisted of three parts: (1) the preservation of certain wetlands and uplands on-site, as required by the Marshall Creek DRI Development Order; (2) the creation, enhancement, and preservation of certain wetlands on-site and the preservation of certain uplands on-site, as required by prior permits issued by the District; and (3) the mitigation proposed for the Parcel D project. (DOAH Case Nos. 00-2230 and 00-2231; Final Order at 10-12).
The "Plan" in the Parcel D case was found to provide regional ecological value because the land encompassed therein was either adjacent to or in close proximity to the following regionally significant ecological resources or habitats: (1) the Guana River State Park; (2) an Outstanding Florida Water; (3) the 55,000-acre Guana-Tolomato-Matanzas National Estuarine Research Reserve; (4) an Aquatic Preserve; (5) the Guana Wildlife Management Area; and (6) the 22,000-acre Cummer Tract Preserve. The Recommended Order and Final Order in the Parcel D case also found that the "Plan" would provide for a wildlife corridor between these resources, preserve their habitat, and ensure protection of water quality for these regionally significant resources. (DOAH Case Nos. 00-2230 and 00-2231 R.O.: paragraph 30, p. 19; Final Order at 10-12). In addition to upholding the above-referenced findings of the Recommended Order in the Parcel D case, the Final Order in that case upheld the conclusion in the Recommended Order that the "out" provision in Section 12.2.1.2(b), A.H., applied (F.O. at 11). Ultimately that Parcel D Final Order found the existence of a "Plan" and that the plan had regional ecological value under Section 12.2.1.2(b), A.H. Thus, consideration of whether requirements of Section 12.2.1.b ERP-A.H. have been complied with in this proceeding must focus on whether the mitigation proposed for the EV-1 project is part of the plan of regional ecological value
and whether it has greater long-term ecological value than the wetlands to be adversely affected under the EV-1 application.
In the instant case, the mitigation proposed for EV-1 is part of a plan of regional ecological value, which consists of the Parcel D plan and additional preserved lands, because it contributes to the plan by providing wetland restoration, wetland creation, upland preservation and wetland preservation. These areas are adjacent to or in close proximity to the Tolomato River and the Guana River Aquatic Preserve. The evidence showed that the mitigation will add to the value of previously preserved lands by helping to maintain travel corridors and forage area for wildlife, to maintain water quality in the adjacent marsh, and to maintain fish and wildlife benefits of the Aquatic Preserve. The mitigation provides additional lands to the wildlife corridor that have already been established in the Marshall Creek development.
The mitigation proposed for the EV-1 project also provides greater long-term ecological value than the wetlands to be adversely affected. The greater amount of mitigation coupled with the fact that it is in-kind mitigation to be preserved in perpetuity will allow a larger area of conserved lands to mature and to provide more forage and habitat for the wildlife that would utilize those areas over the long-term than the wetlands to be adversely affected.
Although it has been ruled that collateral estoppel precludes Petitioners from re-litigating whether MCCDD has demonstrated the existence of a plan which has regional ecological value, as it relates to the Parcel D proceedings, under Section 12.2.1.2, A.H., collateral estoppel will not apply where unanticipated subsequent events or a substantial change of circumstances related to the subject matter with which the prior ruling was concerned is sufficient to promote or prompt a different or contrary determination. University Hospital Limited v. Sate Agency for Health Care Administration, 697 So. 2d 909, 912 (Fla. 1st DCA 1997); Holiday Inns, Inc., v. City of Jacksonville, 678 So. 2d 528, 529 (Fla. 1st DCA 1996). There has been no preponderant evidence presented to show a change in circumstances that would justify a change in the prior ruling of the existence of a plan of regional ecological value stemming from the Parcel D proceedings. Therefore, the provision in Section 12.2.1.2, A.H., has been met.
Section 12.2.2., A.H., requires consideration of whether the project will impact the values of wetlands and surface waters on the site so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife and listed species. Section 12.2.2.3, A.H., contains the factors that should be considered when assigning the value of a function that any wetland or other surface water provides to fish, wildlife,
and listed species. They include: (a) quality; (b) hydrologic connection; (c) uniqueness; (d) location; and (e) fish and wildlife utilization.
The evidence shows that the applicant is proposing to dredge and fill within .75 acres of wetlands for road-crossings and to clear .07 acres of wetlands to construct three boardwalks. As mitigation for these impacts, MCCDD proposes wetlands restoration, wetland creation, upland preservation at a
20 to 1 ratio, wetland preservation at a 60-to-1 ratio for saltmarsh preservation and 30-to-1 ratio for the freshwater forested preservation. The evidence establishes that the mitigation more than replaces the functions provided by the wetlands to be adversely affected by the project. The evidence also demonstrates that the EV-1 project will not cause the hydro-period of wetlands or other surface waters to be altered so as to adversely affect wetland functions or surface water functions. Therefore, the requirements of Florida Administrative Code Rule 40C-4.301(1)(d) have been met. Quality of Receiving Waters
Rule 40C-4.310(1)(e), Florida Administrative Code, requires the applicant to provide reasonable assurance that the proposed project will not adversely affect the quality of receiving waters such that the water quality standards, as set forth in Rule Chapters 62-3, 62-4, 62-302, 62-520, 62-522, and
62-550, Florida Administrative Code, including any anti- degradation provisions of Rule 62-4.242(1)(a) and (b) and Rule 62-4.242(2) and (3), Rule 62-302.300, Florida Administrative Code, and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters, set forth in Rule 62- 4.242(2) and (3), Florida Administrative Code, will be violated.
MCCDD has provided reasonable assurance that the construction and operation of the project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The preponderant evidence shows that the EV-2 pond is an existing, previously permitted wet-detention pond that was designed in accordance with the District's wet-detention criteria contained in 40C-42.026(4), Florida Administrative Code and will be modified in accordance with those criteria. The pond is operating in compliance with the permit and its operation is not being adversely affected by groundwater inflow. Under the District's rules this created a presumption that state water quality standards, including those for outstanding Florida Waters, will be met. See Fla. Admin. Code. R. 40C-42.023(2)(a). This presumption has not been rebutted and therefore, the requirements of Rule 40C- 4.301(1)(e), Florida Administrative Code, have been met.
Additionally, Section 12.2.4, of the ERP A.H., states that reasonable assurances regarding water quality must be
provided both for the short and long term, addressing the proposed construction, alteration, operation, maintenance, removal and abandonment of the system. MCCDD has provided reasonable assurance that this requirement is met through the design of the stormwater management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures that are proposed as part of the project. If issued, the permit will require that the stormwater management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented.
Rule 40C-4.302(1)(c), Florida Administrative Code, requires the applicant to provide reasonable assurance that any portion of the surface water management system located in, adjacent to or in close proximity to Class II waters or located in Class II waters or Class III waters classified by the Department as approved, restricted or conditionally restricted for shellfish harvesting, as set forth or incorporated by reference in Chapter 62R-7, Florida Administrative Code, will comply with the additional criteria in Section 12.2.5 ERP-A.H., adopted by reference in Rule 40C-4.091, Florida Administrative Code. (Rule Chapter 62R-7, Florida Administrative Code, was transferred to Rule Chapter 5L-1, Florida Administrative Code.)
This chapter establishes a classification system for shellfish harvesting area and incorporates by reference shellfish harvesting areas descriptions and maps. See Rule 5L-1.003, Florida Administrative Code. The preponderant evidence establishes that no part of the subject project is located in shellfish waters. None of the Petitioners' witnesses opined as to the relationship between the proposed project and the boundary of the conditionally-restricted shellfish harvesting area. However, evidence showed that shellfish would not occur in areas impacted by the project based upon the habitat needs of shellfish. Therefore, the applicant was required to comply with Sections 12.2.5(a) and (b) ERP-A.H., which provide as follows:
In accordance with paragraph 12.1.1(d) [Rule 40C-4.302(1)(c), Florida Administrative Code], the District shall:
deny a permit for a regulated activity Class II waters which are not approved for shellfish harvesting unless the applicant submits a plan or proposes a procedure to protect those waters and water in the vicinity. The plan or procedure shall detail the measures to be taken to prevent significant damage to the immediate project area and the adjacent area and shall provide reasonable assurance that the standards for Class II waters will not be violated;
deny a permit for a regulated activity in any class of waters where the location of the system is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the regulated activity
will not have a negative effect on the Class II waters and will not result in violations of water quality standards in Class II waters.
MCCDD has satisfied these requirements by submitting plans and detailed measures implementing erosion and turbidity control measures and designing the stormwater treatment system to provide a higher level of treatment than the required minimum level of treatment and to ensure that state water quality standards will not be violated as a result of discharges from the proposed project. The measures detailed to be taken by MCCDD will prevent significant damage to the immediate project area and the adjacent area and the plans submitted by MCCDD demonstrate that the project will not have a negative effect on the Class II waters and will not result in a violation of water quality standards in the Class II waters. Therefore, reasonable assurances have been provided that any portion of the surface water management system in, adjacent to, or in close proximity to Class II waters or located in Class II waters or Class III waters and classified as approved, restricted or conditionally restricted for shellfish harvesting will comply with the additional criteria in Section 12.2.5, ERP-A.H.
Subsection 373.414.(1)(b)3, Florida Statutes, provides:
If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards.
Section 12.3.1.4, ERP-A.H., which implements this statutory provision, states:
In instances where an applicant is unable to meet water quality standards because existing ambient water quality does not meet standards and the system will contribute to this existing condition, mitigation for water quality impacts can consist of water quality enhancement. In these cases, the applicant must implement mitigation measures that will cause a net improvement of the water quality in the receiving waters for those parameter which do not meet standards.
The preponderant evidence shows that discharges from the project will not contribute to the existing ambient water quality violations for dissolved oxygen and total fecal coliform levels. The lengthy detention, large surface area for aeration and dilution provided by the EV-2 pond and its over design will result in a net improvement in the existing ambient water quality levels for dissolved oxygen and total fecal coliform bacteria.
The evidence establishes that since the construction, operation and maintenance of the EV-1 system will not violate water quality standards and will result in a net improvement for
two parameters, the project will not significantly degrade an OFW.
Secondary Impacts
Rule 40C-4.301(1)(f), Florida Administrative Code, requires that an applicant provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a system will not cause adverse secondary impacts to the water resources. Compliance with this criterion is determined by applying the test in Section 12.2.7 ERP-A.H. Construction, Alteration, and Intended Use of Uplands
As part of the Secondary Impacts Test, the applicant must provide reasonable assurances that the secondary impacts from construction, alternation and intended or reasonably intended uses of a proposed system will not cause violations of water quality standards of adverse impacts to the functions of wetlands. Section 12.2.7, (a) A.H., provides in pertinent part that:
Secondary impacts to the habitat functions of wetlands associated with adverse upland activities will not be considered adverse if buffers with a minimum width of 15' and an average width of 25' are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat. The mere fact that a species is listed does not imply that all of its feeding habitat is critically important. Where an applicant
elects not to utilize buffers of the above dimensions, buffers of different dimensions, measures other than buffers, or information may be provided to provide the required reasonable assurance.
The preponderant evidence shows that MCCDD has proposed buffers with a minimum width of 25 feet and a maximum width of 50 feet although the buffers in some areas will exceed
50 feet. Trimming will be prohibited in the 25-foot buffers.
No compelling evidence of the use of the wetlands by listed species for nesting, denning or critically important feeding habitat was presented in those area where a 25-foot buffer is proposed and no additional measures are shown to be needed.
Thus, pursuant to Section 12.2.7(a), the secondary impacts of human activity adjacent to the wetlands in areas where a 25-foot buffer is provided are not considered adverse. The evidence showed that hand trimming, however, is permitted in the 50-foot buffer areas as proposed, but is limited to an area of half of the length along the lot interface of the wetland, no trimming is allowed below 3 feet or above 25 feet. In these areas the wildlife species of primary concern were shown to be wading birds. These buffer areas will also prevent secondary impacts due to their greater width, the distance to the marsh, and the limitations placed on trimming.
Ecological Value of Uplands for Nesting or Denning of Aquatic or Wetland Dependent Species
Under this Second Part of the Secondary Impacts Test found in Section 12.2.7(b), ERP-A.H., MCCDD must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely impact the ecological value of uplands to aquatic or wetland dependent listed animal species for "enabling existing nesting or denning" by these species. Consideration for areas needed for foraging or wildlife corridors will not be required, except as necessary for ingress and egress to a nest or a den site from the wetland or other surface water. Section 12.2.7(b), ERP-A.H. The evidence shows that none of the listed aquatic or wetland dependent species currently use the project site for nesting or denning. An existing nest was identified on an upland island east of the project site. However, the unrebutted evidence shows that this nest is not currently being used.
Significant Historical and Archeological Resources
This third part of the Secondary Impact Test is found in Section 12.2.7(c), ERP-A.H., and is evaluated below as part of the public interest criteria.
Causally Related Future Activities
The fourth part of the Secondary Impact Test is found in Section 12.2.7(d), ERP-A.H. This section requires the applicant to provide reasonable assurance that certain activities or additional phases will not result in water quality violations or adverse impacts to the functions of wetlands or other surface waters. The evidence showed that additional phases of the project could be designed in accordance with the relevant rule criteria.
Groundwater Levels and Surface Water Flows
The parties stipulated that the project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established in Rule Chapter 40C-8, Florida Administrative Code. Therefore, the project meets Rule 40C-4.301(1)(g), Florida Administrative Code.
Works of the District
The parties stipulated that the proposed project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes. Therefore, the
project meets the requirement of Rule 40C-4.301(1)(h), Florida Administrative Code.
System Functioning as Proposed
Rule 40C-4.301(1)(j), Florida Administrative Code, requires the applicant to provide reasonable assurance that the construction, alteration, operation or maintenance of a surface water management system will be capable, based on generally accepted engineering and scientific principles of being performed and functioning as proposed. The evidence shows that the design of the project is based on generally accepted engineering practices and does not include atypical or unique components. Moreover, the EV-2 pond, which will be modified to a limited degree as a result of the project is currently operating in compliance with its existing permit and the applicant will be required to submit inspection reports of the pump stations to the District on an annual basis. Therefore, the project meets the requirement of Rule 40C-4.301(1)(i), Florida Administrative Code.
The Operation and Maintenance Entity
Rule 40C-4.301(1)(j), Florida Administrative Code, requires the applicant to provide reasonable assurance that the construction, alteration, operation or maintenance of a surface water management system will be conducted by an entity with the financial, legal and administrative capability of ensuring that
the activity will be undertaken in accordance with terms and conditions of the permit, if issued. The applicant is an established entity and, as a community development district, is a unit of special purpose government established under the provisions of Chapter 190, Florida Statutes. The preponderant evidence shows that the MCCDD has provided reasonable assurance that it has the financial, legal, and administrative capability of ensuring that the EV-1 project will be undertaken in accordance with the terms and conditions of the ERP, if issued. Thus, this project meets the requirements of the rule last cited above.
Special Basin Criteria
The proposed project is not located in a special basin or geographic area as established in Rule Chapter 40C-41, Florida Administrative Code, thus these criteria are not at issue.
Minimum Flows and Levels
The preponderant evidence shows that for purposes of Rule 40C-4.301(1)(g), Florida Administrative Code, that the project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established in Rule Chapter 40C-8, Florida Administrative Code.
Public Interest Test
In accordance with Rule 40C-4.302(1)(a), Florida Administrative Code, MCCDD must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. See also Section 12.2.3, A.H. It was not required to provide reasonable assurance that these parts of the project are clearly in the public interest, since no part of the system will significantly degrade, or be located within, an Outstanding Florida Water. See Rule 40C-4.302(1)(a), Florida Administrative Code.
MCCDD has provided reasonable assurance that the EV-1 project is not contrary to the public interest since the evidence established that all of the public interest factors to be balanced were determined to be neutral, as found above. Because the mitigation proposed for the project will offset the adverse impacts to wetlands, no adverse effects to the conservation of fish or wildlife or due to the project's permanent nature will occur. There will be no harmful erosion, and it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archeological resources, recreational or fishing values, marine productivity, or the public health, safety, or welfare or property of others. The project's design, including mitigation,
was found to be such that the current condition and relative value of functions performed by wetlands will be maintained. Cumulative Impacts
The mitigation offered for the proposed project is adequate to offset all the adverse impacts to the area of wetlands to be impacted. Thus, the proposed project will not result in unacceptable cumulative impacts. See Fla. Admin. Code R. 40C-4.302(1)(b).
Rule 40C-4.302(1)(d), Florida Administrative Code - Seawalls
The proposed project does not contain any vertical seawalls in estuaries or lagoons. Thus, this subject matter is not at issue.
In summary, the preponderant evidence adduced at hearing demonstrates that MCCDD has provided reasonable assurance that all applicable requirements of the District rules will be met and that the ERP should be granted with the conditions proposed in the District's Exhibit 3 in evidence, consisting of the technical staff report.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a Final Order be entered by the St. Johns River Water Management District granting MCCDD's application for an individual environmental resource permit with the conditions set forth in the technical staff report dated September 24, 2003, in evidence as St. John's River Water Management District's Exhibit 3.
DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 Clerk of the
Division of Administrative Hearings this 9th day of February, 2004.
COPIES FURNISHED:
Deborah J. Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082
Veronika Thiebach, Esquire
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A.
245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4327
Stephen D. Busey, Esquire Allan E. Wulbern, Esquire Smith, Hulsey & Busey
225 Water Street, Suite 1800 Jacksonville, Florida 32202
Kirby Green, Executive Director
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 13, 2004 | Agency Final Order | |
| Feb. 09, 2004 | Recommended Order | Respondent established reasonable assurances that storm water, water quality and wildlife-related standards of the statutes and rules would be met through the mitigation plan. Pet. established standing on some issues but did not meet burden of proof. |
