STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OCTAVIO BLANCO,
Petitioner,
vs.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT; ENTRYWAY DEVELOPERS, L.L.C.; and WESTFIELD HOMES OF FLORIDA, a
Florida general partnership,
Respondents.
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RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings on August 31 and September 1, 2004, in Dade City, Florida, and on October 13,
2004, in Tampa, Florida.
APPEARANCES
For Petitioner: Marcy I. LaHart, Esquire
Marcy I. LaHart, P.A. 711 Talladega Street
West Palm Beach, Florida 33405-1443
For Respondent Southwest Florida Water Management District: Margaret M. Lytle, Esquire
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34604
For Respondents Entryway Developers, L.L.C. and Westfield Homes of Florida, a Florida general partnership:
Jay J. Bartlett, Esquire Bricklemyer, Smolker & Bolves, P.A.
500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602-4990
STATEMENT OF THE ISSUE
Whether the Southwest Florida Water Management District should issue the Individual Environmental Resource Permit (the "Individual ERP," the "ERP" or the "Permit") applied for by Entryway Developers, LLC ("Entryway")?
The ERP was preliminarily issued by the District as Draft Permit No. 43024788.000 (the "Draft Permit"). If it becomes final, it will allow Entryway's successor in interest, Westfield Homes of Florida ("Westfield") both to construct a new surface water management system in service of a proposed subdivision, known as Ashley Glen, in southern Pasco County, and to conduct dredge and fill activities on site.
PRELIMINARY STATEMENT
On January 2, 2004, the Division of Administrative Hearings ("DOAH") received a letter dated December 31, 2003, from Margaret M. Lytle, Assistant General Counsel for the Southwest Florida Water Management District (the "District" or "SWFWMD"). The letter provided the following background:
On November 14, 2003, the Southwest Florida Water Management District (District) issued
a notice of proposed agency action for approval of Individual Environmental Resource Permit (ERP) Application No. 43024788.000, submitted by Entryway Developers, L.L.C. Westfield Homes, Inc. (Westfield) is the contract purchaser of the proposed project, and the ERP, if issued, will be transferred to Westfield.
On December 10, 2003, Dr. Octavio Blanco (Petitioner) filed a timely Petition for administrative hearing (Petition) with the District. On December 16, 2003, the Petition was dismissed with leave to amend for failure to comply with Rule 28- 106.201(2), Florida Administrative Code (F.A.C.). An Amended Petition was filed on December 30, 2003 (Amended Petition).
Copies of the District's agency action, the Order of Dismissal Without Prejudice, the Petition and the Amended Petition are enclosed herewith.
Southwest Florida Water Management District letter dated December 31, 2003. The District also related in the letter its determinations that the Amended Petition was timely, substantially complied with applicable rules and statutes for the filing of such a petition, and raised disputed issues of material fact so as to require a formal administrative hearing. The District therefore requested that an Administrative Law Judge be designated to conduct all necessary formal proceedings to culminate at DOAH in a Recommended Order.
The District's request was honored. The case was assigned DOAH Case No. 04-0003, and Administrative Law Judge Charles A. Stampelos was designated to conduct the proceedings. The case
was set for final hearing on May 4-6, 2004, in Dade City and then re-noticed for June 30-July 2, 2004.
In the meantime, on June 24, 2004, a notice was issued that the case had been transferred to the undersigned administrative law judge. Shortly thereafter, an unopposed motion to continue the case was granted. The case was subsequently noticed for hearing from August 31 through September 2, 2004.
Final hearing commenced on August 31, 2004, in Dade City.
The hearing continued the next day (September 1) but did not finish. Set to conclude on September 2, 2004, the final day of the hearing did not take place as scheduled because of the approach of Hurricane Frances. The final hearing concluded instead six weeks later, on October 13, 2004, in Tampa, a new location agreed-to by all the parties.
As the applicant with the burden of proof, Entryway and its prospective successor in interest, Westfield, proceeded first. (The two parties will be referred to as "Westfield" since Westfield, ultimately, will be the holder of the Individual ERP if issued. Westfield's status as the party with greater interest was underscored, moreover, by the designation at the hearing of Westfield's Vice-President Barry Karpay as the applicant's corporate representative.)
Westfield presented the testimony of two witnesses: Charles M. Courtney, accepted as an expert in the fields of
wetlands, wetland delineation, wetlands mitigation, environmental resource permitting, wetlands monitoring, wetlands type, nature and function; and, water quality; and Kyle Cyr, accepted as an expert in the fields of environmental resource permitting, interconnected pond routing ("ICPR"), and stormwater modeling and design. Westfield offered 20 exhibits marked for identification consecutively as Westfield Ex. Nos. 1-20. All were admitted into evidence.
The District presented the testimony of two witnesses: Monte Ritter, Senior Professional Engineer with the District, accepted as an expert in the fields of surface water management systems, environmental resource permitting, and ICPR and surface water modeling; and David Sauskojus, Environmental Scientist IV with the District, accepted as an expert in wetlands, wetland mitigation, environmental resource permitting, and ICPR and surface water modeling. The District offered six exhibits, marked consecutively for identification as District Ex.
Nos. 1-6. All were admitted into evidence.
Dr. Blanco testified himself and presented the testimony of two other witnesses: Bart Baca, Ph.D., accepted as an expert in the fields of wetland ecology, wetland mitigation, wetland delineation, wetland assessment, and water quality; and,
John Vecchioli, P.G., accepted as an expert in the fields of geology, hydrogeology, and hydrology as it relates to
groundwater. Dr. Blanco offered three exhibits marked for identification as Blanco Ex. Nos. 1-3. The three exhibits were admitted into evidence. During the hearing, four other exhibits were produced by Dr. Blanco for demonstrative purposes (all photographs used during his testimony); the four were marked for identification as Baca Ex. Nos. 1-4.
Before the conclusion of the final hearing on October 13, the first two volumes of the transcript, bound in four binders entitled Volumes I-A, I-B, II-A, and II-B, were filed with DOAH. The filing occurred on September 20, 2004. The third and final volume of the transcript (Volume III) was filed with DOAH on November 1, 2004.1
By agreement of the parties, proposed orders were due on November 11, 2004 (ten days following the filing of the completed transcript). Over objection by Westfield and the District, a motion to enlarge the time filed by Dr. Blanco was granted. The Order allowed proposed recommended orders to be filed on Monday, November 15, 2004. Proposed orders were timely
filed.
FINDINGS OF FACT
The Parties
The Petitioner in this proceeding is Dr. Octavio Blanco. A veterinarian, citizen of Florida and a resident of
Pasco County, he holds a property interest (described below) in property immediately adjacent to Ashley Glen.
One of the three Co-Respondents, the Southwest Florida Water Management District (the "District" or "SWFWMD") is a public entity created by Chapter 61-691, Laws of Florida. It exists and operates under Chapter 373, Florida Statutes (the "Florida Water Resources Act of 1972" or the "Act"). The District is the administrative agency charged with the responsibility to conserve, protect, manage and control the water resources within its geographic boundaries. It does so through administration and enforcement of the Act and the rules promulgated to implement the Act in Chapter 40D, Florida Administrative Code.
Entryway, the second of the three Co-Respondents, is a limited liability company and the original applicant for the Permit.
Westfield, the third of the Co-Respondents, is a Florida general partnership and the current owner of the Ashley Glen Project. If the Permit is issued by way of a final order, Westfield will be the permit-holder.
An application for an Individual ERP must be signed by the owner of the property or the owner's authorized agent. If signed by an agent, a letter of authority must be submitted by the owner. See Fla. Admin. Code R. 40D-4.101(2).
Westfield was not the owner of the property on the site of the Project at the time of the filing of the application. Entryway was the owner. Westfield filed with DOAH a letter of authority received from Entryway.2 The letter authorized Westfield to sign the Individual ERP application.
Ashley Glen and the Blanco Property
"Ashley Glen-Villages 2-5" ("Ashley Glen" or as it is referred to in the Draft Permit, the "Project") is a 266.36-acre residential subdivision planned to be divided into more than 400 lots. Located in southern Pasco County, the subdivision is on the north side of State Road 54, approximately three miles west of US 41 and less than 1000 feet east of the Suncoast Parkway. To the north, Ashley Glen is bounded along an abandoned railroad right-of-way. The right-of-way extends beyond the northwest and northeast corners of the property in both easterly and westerly directions.
There are 72.69 acres of surface waters and wetlands on the Ashley Glen site. Among the 19 isolated and contiguous wetlands on the property is a portion of a Cypress-forested wetland system (the "Cypress-forested Wetland").
The Cypress-forested Wetland was described at hearing by one of Westfield's experts as "a large wetland" (tr. 41) that is typical of the area. As with similar wetland systems throughout the state, the Cypress-forested Wetland undergoes
"seasonal drawdowns and dry-outs, and in the wet season . . . flood[s] out to the edges and even beyond in certain storm events." (Tr. 43).
The portion of the Cypress-forested Wetland that is on the Ashley Glen site is identified by the Permit as "Wetland A3." Wetland A3 is 29.94 acres. The entire Cypress-forested Wetland system south of the railroad bed of which Wetland A3 is a part is at least twice as large. Most of the remainder of the Cypress Wetland south of the railroad right-of-way is on the Blanco Property.
It appears from exhibits used during the hearing that the Cypress Wetland originally extended north of where the railroad right-of-way now lies in its abandoned state. The connection was indicated also in the testimony of Mr. Courtney (Westfield's "wetlands" and "ERP" expert3) when he stated that there was potential for contiguity with systems to the north. Aerial photographs used at hearing indicated that the Cypress- forested wetland system was, indeed, part of the contiguous wetland system to the north of the railroad bed. The contiguity between the Cypress-forested Wetland and the system to the north was confirmed by Dr. Baca, Petitioner's wetland ecologist, on the basis of on-site examinations. Dr. Baca believes the Cypress-forested Wetland to be part of a much larger system that extends northward and to the west and that is contiguous with
the Gulf of Mexico. He determined that despite the establishment of the railroad bed, the Cypress-forested Wetland remains connected to the contiguous wetland system to the north by way of pipes under and through the bed.
Drainage on the Ashley Glen site is primarily from south to north with significant contribution from a drainage basin to the east. Drainage from the south is channelized by a ditch that runs nearly the length of the property from Wetland C12 at the southeastern tip to Wetland A3 near the site's northern boundary. Drainage from the eastern basin toward Wetland A3 is intercepted by the ditch. The result is that the drainage from the east is captured before it reaches Wetland A3 and drainage from the south bypasses Wetland A3 to be discharged northward at the railroad bed so that all of the drainage is "short-circuited by [the] ditch to the actual discharge location of [Wetland] A3." (Tr. 41).
The discharge location from Wetland A3 was more precisely described at hearing by Mr. Courtney as "the confluence of [Wetland] A3 and the railroad bed where [the ditch] discharges off-site flows and [the] easterly to westerly flows into pipes that go under [the] old railroad bed "
(Tr. 40-41). This testimony supports Dr. Baca's confirmation of the connection between the Cypress-forested Wetland and the contiguous wetland system north of the railroad bed.
To the west of the ditch and the Ashley Glen site is the Blanco property. It has been held by Dr. Blanco's family for a period spanning six decades. Its boundaries roughly form an elongated narrow rectangle. From the eastern and western ends of 400 feet of frontage on State Road 54 (the southern boundary of the Blanco Property) the eastern and western boundaries run parallel of each other approximately 8000 feet to the north where the northernmost boundary of the Blanco Property meets the abandoned railroad right-of-way.
The majority of the northern half of the Blanco Property is in the Cypress-forested Wetland. In addition to the drainage from the south and the east received prior to the digging of the ditch, the wetland receives drainage from the west which traverses the property between the Blanco Property and the Suncoast Parkway.
With the exception of one acre on which sits the house in which Dr. Blanco's mother lives, the Blanco Property is presently the subject of a Land Trust Agreement. Through this unrecorded instrument, dated December 19, 1996, Dr. Blanco has an ownership interest in the property.
Dr. Blanco's concern for the property pre-dates his ownership interest conferred by the trust agreement. He lived on the property from the age of three until he left for college. During that time, he "constantly" (tr. 374) observed many
species of wildlife in the Cypress-forested Wetland, as he explained at hearing:
Starting with mammals, I observed many deer, foxes, coons, coyotes, squirrels, ground squirrels, fox squirrels. And then numerous bird species . . . from the sandhill cranes to various storks and herons and egrets and
. . . [m]ostly aquatic birds . . . many hawks [and] an occasional eagle [as well]. A lot of animals, such as frogs and snails. The apple snails particularly I've noticed. I've always admired them and the way they lay their eggs up on the water line. So, I've noticed them for years out there [along with] [m]any snakes [and], alligators.
Id. Over the years, Dr. Blanco has observed changes, especially among the wading birds and the aquatic species:
You see less and less of them. The periods where there's consistent water to support their life has grown shorter as time goes by. And this time of year where there's water, the life is pretty abundant. But then, in recent years, I've noticed that the time period seems to be getting shorter and shorter. And then . . . when I go out there, I use all my senses, not just my eyes, and the place just sounds different when it's full of life versus when it's, essentially, dried up.
(Tr. 374-375).
Just as in any typical cypress-forested wetland, during wet periods, the cypress trees in the Cypress-forested Wetland "will be inundated and the ground will be saturated to the edge of the uplands." (Tr. 45). During these times, the majority of the storms that deliver rain are considered small,
that is, rainstorms of below half an inch. Much bigger storms, of course, also contribute to the water that stands in the wetland from time to time.
"By the same token, in droughts or dry seasons, the water levels . . . typically drop to at or below the ground level." (Tr. 46). The dry periods, if part of the natural cycles between hydro-periods, contribute to the health of the system. For example, during dry periods nutrients are oxidized, one of the functions of a wetland.
In 2002, the Cypress-forested Wetland was dried out from mid-March at the end of the dry season until the end of July, a period of drought. The dry season and the occasional drought contribute, of course, to a lowering of the water table below the surface of the wetland. But the water table may also be lowered by the pumping of water from wellfields in the area, one to the northwest of the site, another to the southeast. That pumping is monitored by the District. The District takes action to minimize damage from any lowering of the water table caused by pumping water from the wellfields.
Apple snails have been recently observed in the Cypress-forested Wetland. "Apple snails are unique in that they're the sole food of the snail kite, an endangered species." (Vol. III, p. 61). There are snags and dead trees in the
Cypress-forested Wetland as well. Used by many birds and mammals, they provide particularly good habitat for woodpeckers.
The Cypress-forested Wetland is not a pristine wetland. The establishment of the railroad bed had an impact. In its abandoned state, the railroad bed continues to have an influence on its discharge to the north. The Suncoast Parkway "might have had some impact." (Tr. 53). Cattle grazing on both the Blanco Property and the Ashley Glen site has had an impact on the herbaceous ground cover layer and on the wetland's water quality although it is unlikely that the cows grazed in the Cypress-forested Wetland. ("Generally, [cows] don't graze on
. . . wetland plants, because they're either bitter tasting or [have] poor textures . . . .") (Vol. III, p. 58). The well- fields in the area have had historic impacts mitigated, as mentioned, through implementation of an area-wide hydrology restoration plan by SWFWMD.
The most significant impact to the Cypress-forested Wetland resulted from the combination of the construction of State Road 54 and the ditch's channelization of stormwater runoff migrating through the center of the Ashley Glen site. Had the property not been ditched, the stormwater runoff and any other migrating water would have been conveyed by sheet flow into the Cypress-forested Wetland.
Despite the varied impacts over the years, the Cypress-forested wetland remains ratable today "as a mid to higher level quality wetland for the area." (Tr. 43).
The Draft Permit
Application for the permit was submitted on
February 7, 2003. After eight formal submittals of information in response to questions by the District, a Draft Permit was issued on December 16, 2003. The Draft Permit lists the "Project Name as Ashley Glen - Villages 2-5" and otherwise refers to Ashley Glen as the "Project."
The Permit allows the Project to fill 43.75 acre-feet of the 100-year flood plain on the Ashley Glen site. At the same time, the Permit allows 51.98 acre-feet of excavation on- site.
Project construction will result in the filling of
1.61 acres of forested and non-forested wetlands and secondary impacts to at least one of the isolated wetlands. The permit speaks to secondary impacts to another of the wetlands and surface waters on-site and finds that there are none: "[O]ne isolated wetland, 0.37 acre in size, and 2.81 acres of surface waters will be impacted, however, since these areas provide no significant habitat functions, no habitat mitigation will be required." District Ex. 5, pgs. 3-4. The mitigation for the impacts that require mitigation, in the District's view,
includes creation of 2.89 acres of wetlands and preservation of
65.32 acres of wetlands.
The Permit also authorizes the construction of a new surface water management system (the "SWM System") to serve Ashley Glen.
The Surface Water Management System
The SWM System consists of six wet detention ponds, four isolated wetland treatment systems, an attenuation pond, and an associated conveyance and discharge structure. The wet detention ponds and the isolated wetland treatment systems were designed in accordance with Section 5.2 of the District's Basis of Review.
Westfield Ex. 6 depicts the "generalities of the [SWS] [S]ystem in [Ashley Glen's] built environment." (Tr. 56). Key pipe areas are shown in white on the exhibit. For example, the existing ditch is re-located slightly to the east; the exhibit shows in white where water is piped from the northern terminus of the new, re-located ditch into Pond P11. This piped water will consist of drainage from the south that is now conveyed by the existing ditch and drainage from the east that passes through Wetland W2 and Wetland W1. In keeping with the historical drainage pattern that preceded the existence of the ditch, drainage from the basin on the eastern part of the property that passes through Wetland F4, Wetland E4, and Wetland
D5 will also be discharged westward into P11 to be discharged at a point toward the southernmost part of Wetland A3, the wetland's headwaters.
The discharge from P11 was described by Mr. Courtney at hearing:
The discharge of P11 was placed up in the headwaters of A3 [where] . . . the [existing] ditch short-circuited the discharge of . . . waters to the discharge point of A3. [An SWM System] . . . control structure is placed at the headwaters of A3, a much better situation for A3, given that the quantities and quality of water is going to be the same or better, because water is now going to be reintroduced to the headwaters of A3 as opposed to short- circuiting it.
(Tr. 57). Mr. Courtney estimated that one-fourth to one-half of the surface water flows on the property coming from the south and the east were routed unnaturally by the ditch to Wetland A3's discharge point at the railroad right-of-way at the northernmost point of the wetland. The project re-routes these waters to a point near the headwaters of Wetland A3 (in its southernmost part). Surficial flow, therefore, that had by- passed Wetland A3 because of ditching will be routed by the SWM System to the headwaters of Wetland A3 after treatment and attenuation provided that the attenuation pond reaches a high enough elevation. Any water discharged to Wetland A3 from the attenuation pond will flow in a northerly direction (the
historical flow pattern) through the wetland to the point of discharge at the railroad bed. Provided that the restored flow is of good quality, restoration of the hydrology is a benefit to the system. On this point, Dr. Baca agreed with Mr. Courtney.
The Cypress-forested Wetland on the Blanco Property and the wetland system that extends north of the railroad bed "are dependent upon the treatment, the care and the protection afforded the wetland on the Ashley Glen property." (Vol. III, pg. 60).
Wetlands B8 and D3, surrounded by developed lots, are served by detention ponds. Internal drainage from the lots is collected from street systems. Pop-off from the systems goes either directly to a detention pond and then a wetland or to a sump and then to a wetland. After treatment, the drainage is conveyed to Pond P11.
Pond P10, a relatively small detention pond, is situated at the headwaters of Wetland A3. The pond treats runoff and flows into Wetland A3.
Pond P11, although not a stormwater detention pond and for which the applicant receives no treatment credit, is nonetheless "a good backup treatment mechanism for stormwater that is meeting state water quality standards as discharged from all of the drainage systems in the uplands." (Tr. 59). Through the attenuation process, moreover, it will perform some
treatment that meets or exceeds the minimal requirements of ERP permitting. After attenuation and whenever the pond reaches a certain elevation, waters are discharged into Wetland A3.
A major point of focus of Dr. Blanco's case is the excavation of the attenuation pond and its interaction with Wetland A3. The attenuation pond is designated in the Draft
Permit as Pond P11 ("P11").
P11
If excavated according to present plans, P11 will be
25 feet deep at its deepest point (less than one percent of the pond). "[T]he deepest areas run along the corridor that goes between [Wetlands] B6 and D5." (Tr. 166). The shallowest areas of P11 are along the western edge of the pond where a shelf will be constructed. The surface area of the pond will take up approximately 40 acres. (See endnote 4).
The Respondents refers to P11 as a "100 year flood plain compensation area." (Tr. 116). The Permit's "Water Quantity/Quality list of ponds denominates P11's "treatment type" as "[a]ttenuation" which would make it an attenuation pond. Dr. Blanco prefers to call P11 a borrow pit asserting that one reason for its excavation is to obtain fill for the development.
Dr. Blanco's labeling of P11 as a borrow pit appears to be correct since the District referred to it as a borrow pit
and since significant dredging on site is allowed by the Draft Permit. Whether Dr. Blanco's and the District's nomenclature for P11 is accurate or not, there is no dispute that P11 is part of the stormwater management system. The Draft Permit ascribes to it the function of attenuation: the process by which flow is slowed that allows compounds to be reduced in concentration over time. It is a significant component of the SWM System.
Conveyance of water of sufficient quality that has undergone attenuation from the pond into a point near the headwaters of Wetland A3, moreover, poses the potential to improve the wetland's hydrology.
Dr. Blanco asserts that fill needed by the Project could be obtained off-site. In other words, P11 does not need to be excavated to obtain the fill. But obtaining fill material is not the only purpose of P11 since it also provides retention and attenuation functions.
Dr. Blanco's main concern with P11, however, is not its status as a borrow pit. His concern is based on three of its characteristics, the latter two of which relate to its nature as a borrow pit: 1) its placement, excavated directly adjacent to Wetland A-3; 2) its depth, at its deepest point, 25 feet; and 3) its size; close to 40 acres in open surface area.4
Due to sheer size of P11's open surface area, significant volumes of water in P11 will be lost routinely to
evapo-transpiration. When the water level in P11 is below the water level in Wetland A3, moreover, the pond will draw water out of the Cypress-forested Wetland.
Whenever the water is below its control elevation, it will take a considerable volume of water to raise it to the elevation appropriate to protect Wetland A3 and the rest of the Cypress-forested Wetland. Reaching the control elevation will occur only when all available storage has been filled and contributions of water (from rainfall, stormwater run-off, or by way of conveyance through the SWM System or otherwise) exceed loss through evaporation and seepage, downward and lateral.
The parties disagree as to whether the applicant has provided the assurances necessary to justify issuance of the Permit. The most contentious point is about the effect P11 will have on Wetland A3 and the extended Cypress-forested Wetland. Westfield (with the support and concurrence of the District) bases its case for assurances, in the main, on a type of computer modeling. Dr. Blanco, on the other hand, presented testimony that criticized the computer modeling that was done in this case in support of the application. That computer modeling is known as "Interconnected Pond Routing" or "ICPR."
ICPR
Interconnected Pond Routing ("ICPR") is a type of hydrological computer model that takes into account surface
water flows. It does not take into account groundwater flows, downward or lateral seepage or the lowering of the water table by well-field pumping. It models the surface water hydrology of a site as it might be affected, for example, by detention basins and channel pipes. It models pre-design of a site to be developed and then post-design of a site prior to actual development to provide comparative analysis. It is also a predictive tool. As with any predictive tool, its accuracy can only be definitively determined by observation and collection of data after-the-fact, in this case, after development.
ICPR modeling is used in particular for stormwater and surface water management systems. For that reason, it was used by Westfield to support the ERP application in this case.
Before ICPR modeling of the Ashley Glen site and the surrounding area was conducted, topographic information was collected by survey. The results of the survey and the modeling that followed resulted in several of the exhibits used by Westfield at hearing.
For example, the topographic information and ICPR were used to produce a post-development map (Westfield Exhibit 12). In addition to sub-basins reflected in Westfield Exhibit 11 that relate to the hydrology of the site the map shows two pods (a "Southern Pod" and a "Northern Pod") of development.
Approximately 400 feet of the Southern Pod will abut Wetland A3 on the pod's western edge. The location of the Southern Pod will necessitate re-location of the existing ditch. The Northern Pod, in contrast, will be separated from Wetland A3 by both P11 and the proposed road. The Northern Pod, the larger of the two proposed pods of development, is farther from Wetland A3 although it is separated from Wetland C2 solely by the proposed road.
The sub-basins on Westfield Ex. 12 are reflected in Westfield Ex. 11, the result of pre-design modeling that revealed three off-site basins composed of 218, 544 and 908 acres. Each sub-basin corresponds to a detention pond designed to assist in enhancing the site's post-development hydrology. The modeling was also used to introduce P11, Westfield's proposed 100-year flood compensation area that would act as a detention pond for attenuation.
Each sub-basin used in the modeling exercises covers an area for which there is information relative to size, curve number and time of concentration, all of which was entered into the modeling. Kyle Cyr, a registered P.E. in the State of Florida, and an expert in ICPR and stormwater modeling, described at hearing what happened next:
The input is then directed towards a node, which we call the wetlands of the node or detention ponds. And then each node is
interlinked by either channels, pipes or weirs, swells, drop structures.
* * *
[W]e check the models for pre and post to make sure there's no adverse impacts to off- site properties. No additional flows are allowed to leave the site.
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We end up with flows, staging elevations for each node. . . . [The result is] [a] drainage report. [The] drainage report has a pre- and post- analysis in it.
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[The] drainage report [is used] to design the site, to design the elevations and grading of the roads and [then] the lot and culvert sizes.
(Tr. 147, 148). The drainage report and the information with regard to the design was then submitted by Westfield to the District together with a "pond wetland hydrology interaction report" and modeling with regard to "several minor storm events, a one-inch, a two-inch and a mean-annual event run . . . like a normal rainfall in the area." (Tr. 150).
Various hydrographs for storm events were prepared by Westfield. In general, storm events should assist the hydrology of Wetland A3. The SWM System poses the potential that in storm events, P11 will discharge water to Wetland A3. The discharge pre-supposes that P11 will be at an appropriate elevation to
allow the discharge with the addition of the surface water conveyed by the system into the pond.
Hydrographs of the time versus inflow into Wetland A3 for pre-development and post-development conditions for the storm events were prepared by Westfield. For the one-inch storm and the mean-annual events, provided the pond is at an appropriate elevation prior to the storm (a proviso applicable to all of the hydrograph information), it is reasonably expected that there will be slight increases in peak flow after the development than before. For the two-inch storm, it is reasonably expected that there will be a slight drop in peak flow. None of the changes should have a negative effect on Wetland A3 so long as P11 maintains appropriate water elevations so that water has not been drawn out of the wetland that would have sustained the wetland had P11 not been excavated.5
Hydrographs that depict expected volume over a 72-hour time frame were also prepared based on the same storm events. During the applicable time frame for two-inch and mean-annual events, it is reasonably expected that there will be a slight increase in the volume of water entering Wetland A3 after development. As the result of a one-inch storm event, it is reasonable to expect there to be a slight decrease in volume over the 72 hours. None of the changes are expected to have a
negative effect on Wetland A3, again, provided that appropriate water elevations are maintained in P11.
Finally, hydrographs were prepared for time-versus- inflow for 25-year and 100-year storm events both pre- development and post-development. The modeling showed that, after development, "[a]djacent properties will not experience the higher flood level [that] they have in the past."
(Tr. 156). The decrease is due to the holding back of water in detention ponds after development that will flow off at a slower rate than under pre-development conditions.
The hydrographs show the difference in water flowing onto the site and Wetland A3 after the development under typical conditions in comparison to before development is slight. Water levels in Wetland A3 at times of typical storm events, after development, therefore will not be affected in any meaningful way by the SWM System so long as P11's water level is maintained at an appropriate elevation.
In accordance with Section 4.2 of the District's Basis of Review, the SWM System is designed so that "[o]ff-site discharge is limited to amounts that will not cause adverse off- site impacts." Section 4.2 of the Basis of Review. See District Ex. 4, CHAPTER FOUR, pg. 1. The allowable discharges from the Project were established as a pre-development peak discharge rate from a 25-year, 24-hour storm. The modeling
showed that the post-development discharge rates do not exceed the pre-development peak discharge rate.
The ICPR modeling did not consider the outfall from Wetland A3 that occurs at the abandoned railroad right-of-way on the northern end of Wetland A3. As explained by Mr. Cyr, "Wetland A3 is . . . [a] boundary condition. That's where our model stops." (Tr. 198).
The structure at the outfall at the northern end of Wetland A3 consists of three 42-inch pipes. Had the outfall been considered, Mr. Cyr testified, it would have had no effect on the results of the modeling.
The understanding of the effect on the hydrology of the site provided by ICPR modeling conducted by Mr. Cyr, the drainage report and the other aspects of the information (such as the hydrographs and the design and information related to water quality) gathered and produced by Westfield support the District in its decision to issue the Permit. But there is a criticism of the modeling. It was presented by Dr. Blanco's witness: Mr. Vecchioli, an expert in hydrology as it relates to groundwater.
The Site's Hydrogeology
The area in which Ashley Glen, the Blanco Property and the Cypress-forested Wetland sit was described by
John Vecchioli, a licensed geologist in Florida and an expert in hydrogeology, as:
a low-lying plain of limited altitude . . . underlain by some 20 to 50 feet of . . . fine to very fine sand, sometimes silty, sometimes containing a clay layer or two.
And then beneath that blanket of sand is
. . . the upper Floridan [A]quifer, . . . a thick deposit of limestone, which also constitutes the primary source of drinking water for the area.
(Tr. 93). Connected with the surface waters of the area so that the aquifer and the surface waters function as a single system, the Floridan Aquifer in Pasco County is known as a "leaky- confined aquifer." Id. Its "leaky-confined" nature means that:
[The Floridan is] not firmly capped by thick layers of clay, but rather by sand deposits that although . . . more pervious than the layers of clay, still impede the exchange of water between the two systems.
Id. The source of the water in the upper Florida Aquifer is mainly rainfall because the Aquifer "intercept[s] waters from the surface." (Vol. III, Tr. 95). Much of the water in the upper Floridan is recharged, "very young water . . . indicating that it has a good connection with the surface." Id.
The interaction between the surface water and ground water was shown by a study that "showed . . . 93% of the water derived from . . . public supply wells [was] primarily from capture of water from the surface environment." (Vol. III, Tr. 94). Furthermore, "[t]here's some 133 million gallons per
day pumped from a combination of wellfields in [the] area [of Ashley Glen and the Blanco Property]." Id.
The documented adverse impacts of the pumping in the area has been limited to "drying up the surface, capturing water from streams, pulling down . . . wetlands." Id.
The interaction between the surface waters and groundwater in and around Ashley Glen leads to Mr. Vecchioli's opinion that the effects of the SWM System on groundwater, and in particular the effect of Pond P11, "is a very important aspect . . . almost totally ignored [by Westfield and the District.]" Id.
In other words, ICPR, because it does not account for effects on groundwater, is a flawed model for determining the impact on all water resources in the area. It did not consider "downward leakage as a means for water to escape from the pond [P11]." (Vol. III, p. 96).
The omission is critical because the Floridan aquifer system has a potentiometric surface that's some 10 to 20 feet lower than the water table or surface environment most times during the year. The meaning of this was explained at hearing by Mr. Vecchioli:
[T]here's a downward gradient where water will flow from the land surface in the vicinity of Pond 11 [Pll] down into the Floridan.
When [Westfield's consultants] did the evaluation of the wetland-pond interaction, they ignored this. They essentially said that because we don't intend to penetrate the confining layer, which SWFWMD does not want done, that there won't be any leakage out of the pond vertically. This is not correct . . . . [I]n creating the pond . . .
25 feet or roughly half of the confining bed, or a greater amount, [will be removed], so this makes it much easier for water to move from the water table at land surface down into the Floridan . . . .
Id. The failure to account for downward leakage or "vertical seepage" is significant. "[I]t . . . creates the uncertainty as to whether P11 is going to receive enough water to stay saturated to the top for much of the year." (Vol. III, Tr. 96- 97). If the water level in P11 does not stay at the control elevation, "there will be a downward gradient that prevails from the adjacent wetland [Wetland A3] into the pond and part of this will leak out into the Floridan aquifer, in addition to additional water lost by evaporation from the open surface of the pond. [This] . . . will create a deficiency in storage for the pond." (Vol. III, Tr. 97).
Furthermore, with the removal of the sand during excavation and the replacement of it with water, "the material the water [that is contributing to seepage] has to move through is less, so you have much less energy lost to frictional forces." (Vol. III, Tr. 115). The result is that vertical seepage will be more likely to occur after the pond is excavated
than before. In other words, it will be much easier for water to move from the surface into the Floridan. The seepage, moreover poses difficulties in maintaining elevation in P11.
Evaporation from the pond will be greater than evaporation from the wetland. If water in the pond is not at the appropriate elevation, water will be drawn from Wetland A3. The wetland will be drier than under natural conditions.
Mr. Vecchioli stopped short of predicting that downward leakage would damage the wetland; he stated only that damage would occur if P11 functions as he thought it "might." (Vol. III, Tr. 106). In essence, Mr. Vecchioli's opinion does not stand as a projection of certainty that the wetland will be damaged. Instead, it presents a factor that was not considered by Westfield in its analysis and by the District in its review.
The District counters Mr. Vecchioli's opinion with the fact that the depth of the excavation is in compliance with the District's Basis of Review and that it will not remove what SWFWMD considers to be a "primary retarding material or section," that is, a layer of clay. But it will remove much of the sand. Sand, while it inhibits downward seepage from the surface into the aquifer, is nonetheless not impermeable; it is not an aquitard. Seepage, therefore, will occur despite compliance with the Basis of Review (as explained, below) with regard to depth of excavation and aquitards.
Depths of Excavation and Aquitards
Subsection 6.4.1.b of the Basis of Review addresses depths of excavation:
6.4.1 Dimensional Criteria (as measured at or from the control elevation).
* * *
b. Depth - The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer.
District Ex. 4, CHAPTER SIX, Pg. 2
The term "aquitard" is not a term that appears in the "Explanation of Terms" section of the Basis of Review. See
District Ex. 4, Section 1.7, CHAPTER ONE, pgs. 2-6.
The District does not consider sand to be an aquitard.
Clay, on the other hand, is an aquitard. As explained by Mr. Ritter at hearing, the term aquitard is "defined as a
somewhat impermeable layer that if you were to cut through that, that would be considered a breach." (Vol. III, Tr. 128).
If the District were to consider sand an aquitard, there is nowhere in the District that a pond could be excavated in compliance with subsection 6.4.1.b of the Basis of Review.
The Ashley Glen proposal for the excavation of Pond P11 to a depth of 25 feet complies with the Basis of Review. The depth of excavation of the pond does not come within two feet of the underlying limestone. Nor does it breach a clay layer or any other aquitard.
Compliance with the "depth of excavation" and "aquitard" provisions of the Basis of Review does not cure the problem with the placement of Pond P11: adjacent to Wetland A3. The problem was addressed (although not resolved) by a post- Draft Permit correction that showed more water reaching Wetland A3 by way of the SWM System than had been shown in the original modeling.
Post-Draft Permit Correction
The modeling described at hearing included a correction after the issuance of the Draft Permit. The correction was made because of "an additional off-site contributing area east of the project that was not considered in the original flood study prepared by the [applicant's] consultant . . . ." (Tr. 222).
The model was updated to incorporate the additional contributions that had not been considered prior to the issuance of the Draft Permit. After the additional data was introduced, the modeling suggested changes that Westfield made to its proposal. On the north end of the Project, a conveyance channel
had to be enlarged. Additional culverts were proposed beneath the proposed roadway to reduce flood impacts from the additional flows entering from the east that had been overlooked.
Further evaluation by the District ensued in the wake of the additional modeling. Ultimately, in the process that preceded the final administrative hearing, the application was determined by the District to "still me[e]t the conditions for issuance and [staff, therefore] recommended approval." Id. In other words, this additional water would not cause too much water to flow into Wetland A3 and cause adverse impacts from flooding.
The additional data demonstrates that there will be more water flowing through the SWM System and into Wetland A3 then originally projected but not too much so as to cause adverse flooding impacts. The additional water, however, does not cure the problem that Pond P11 poses for Wetland A3 as explained by Mr. Vecchioli due to the wetland's location, depth and open surface area.
Location, Depth and Open Surface Area
In the final analysis, while there may be nothing out of compliance technically with the depth of P11 and the size of its open surface area, when these factors are combined with the location of P11, adjacent to Wetland A3, there is a problem: the potential for adverse impact to Wetland A3 and the extended
Cypress-forested Wetland of which it is a part. Seepage and evaporation will make it difficult to maintain the water levels in P11 necessary for the pond to discharge into the wetland.
Furthermore, when the water table is down, whether due to drought, pumping activities in the region or for some other reason, and P11 is not at an appropriate elevation, it will draw water out of Wetland A3. Seepage and evaporation have the potential to exacerbate the drawdown. Seepage promoted by the presence of Pond P11 was not taken into account in the modeling done for the project. Without consideration of all the factors material to the site that should enter an appropriate calculation, there is not reasonable assurance that Wetland A3 and the Cypress-forested Wetland will not suffer adverse impacts from the SWM System.
Monitoring Water Quantity
Section 3.2.2.4(c) of the Basis of Review states:
Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetlands or other surface waters to demonstrate that such alteration has not resulted in adverse impacts, or to calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions.
District Ex. 4, Chapter Three, P. 6.
The District determined that the routing analysis and volume calculations with regard to the hydrology on-site and the hydrology of the wetlands provided by Westfield show that there will not be significant or frequent negative changes in wetland hydrology on site. The District concluded, therefore, there is no necessity to require monitoring of wetland water levels in the Permit.
The District's determination, based as it is on the ICPR modeling provided by Westfield, does not withstand the criticism by Mr. Vecchioli. If the District, in the face of the evidence of record and Mr. Vecchioli's criticism, nonetheless decides that reasonable assurances have been made by Westfield, the District should require monitoring pursuant to the subsection 3.2.2.4(c) of the Basin of Review; without doubt, the excavation of Pond P11 adjacent to Wetland A3 has at least the potential to affect water levels in the wetland system.
Water Quality
The depth of P11 poses some dangers to water quality.
Generally, the deeper a Florida lake, the more anoxic and "the more likely you have . . . nutrients such as phosphorus, binding up in the [waterbody] and then being released later" (vol. III,
p. 64) to affect the waterbodies negatively. Wetlands surrounding P11, acting like "sponges" would provide treatment that removes nutrients and locks up chemicals to reduce their
toxicity would improve water quality. But the District's rules do not require biological treatment for nutrients as part of the design of a surface water system.
Given its nature as an attenuation pond, P11 will act like a secondary sediment sump. This aspect of P11 contributes no treatment credit to the application, as mentioned earlier, but any water entering Wetland A3 from P11 will have been treated by an SWM System so as to meet the District's requirements. Other measures will improve water quality on- site. One of such measures, for example, is that cattle on-site will be removed.
Other measures related to water quality were examined by District staff. As he testified on behalf of the District, Mr. Sauskojus "checked to see whether or not . . . erosion control was located between any construction in the wetlands and/or buffers provided." (Tr. 288). He also checked to see that structures through which stormwater flowed into wetlands were equipped with skimmers.
The inquiries led him to conclude as an expert in environmental resource permitting that water quality would not be adversely affected by the SWM System.
Monitoring of water quality by the District may be done after the Permit has been finally issued and the SWM System
is constructed. The District so provides in the Basis of Review. Section 5.13 of the District's Basis of Review states:
Staff reports and permits for projects not requiring monitoring at the time of permit issuance will include a statement that water quality monitoring will be required in the future if necessary to ensure that state water quality standards are being met. This should not be construed as an indication that the District is contemplating the implementation of a program of intensive water quality monitoring by all permittees.
District Ex. 4, Chapter Five, P. 6.
Assurances Other than ICPR
P11's Shelf
Westfield proposes creation of a shelf along the western boundary of P11. It is approximately 150 feet wide with a slope of "a hundred to one . . . a flat area . . . right around the seasonal high elevation of [the] pond." (Tr. 158).
Just as it does not claim treatment credit for P11, Westfield does not claim treatment credit for the shelf. There will not be any planting on the shelf; nor is it designed to serve as a littoral zone.
A "shelf is . . . in some cases the final location for . . . the filtration [and] the protection for the wetland[;]
. . . it acts as a wetland buffer for the mature forested wetland." (Vol. III, p. 59). But the shelf to be provided by Westfield is "just . . . a secondary shelf to help the
interaction between the wetland and the pond." (Tr. 159). Without vegetation, the shelf provided will be of insignificant
benefit.
Dewatering During Construction
To prevent dewatering of Wetland A3 during construction, a dewatering plan must be provided the District before excavation of P11 begins. The Permit contains a general condition that if the contractor "decides to use dewatering" (tr. 223) of a wetland, the District must be notified so that an assessment of adverse effects on the wetland can be made.6
Wetland Impacts: Avoidance, Minimization and Mitigation
Direct impacts to wetlands include excavation or filling: events that entail physical construction in the wetland.
The Project proposes direct wetland impacts to 1.61 acres of wetlands and 2.81 acres of surface waters or wet ditches.
With regard to impacts, an applicant must first attempt to avoid them. If that fails, the applicant must minimize the impact. Finally, the applicant must propose mitigation for impacts.
Direct Impacts to Wetlands
In addition to the secondary impacts caused by the Project's upland activities to the many wetlands on-site that are buffered or that were not buffered and that have to be offset by mitigation, Wetland B12, a wetland little more than one-half acre in size, will receive both direct and secondary impacts. The direct impact is caused by the proposed road. The direct impact is unavoidable because of road alignment required by the Department of Transportation, "a human health and safety issue [that relates] to State Road 54." (Tr. 64). The direct impact to Wetland B12 takes up .15 acres, leaving .43 acres of the wetland without direct impact. (At the same time, Wetland B9 is avoided by the curve in the proposed road and the road is aligned to avoid direct impact to Wetlands B6 and D5.)
Wetland B12 is exempt from fish and wildlife review because it "is not connected by a ditch or overland flow to a larger than half-acre wetland at seasonal high "
(Tr. 283). The value of Wetland B12, as an isolated wetland, is not as high as the value of Wetland A3. It has also suffered de-watering and encroachment by exotic species.
Wetland C12, just down the proposed road from Wetland B12, will incur direct impact to 0.05 acres. The remainder of the wetland on site, 1.80 acres will be preserved under a conservation easement.
Wetland B4 is a small, herbaceous wetland. In the middle of what is now cow pasture slated for excavation if the Project is approved, Wetland B4 will suffer permanent destruction by the creation of Pond P11. The direct impact will cover 0.75 of an acre, the size of the wetland as it now exits. Wetland C4, 0.60 acres in size, will also be permanently destroyed by the establishment of several lots in the Northern Pod of development and excavation of P4, a wet detention pond. The justification offered by Westfield for the permanent destruction of these two relatively small isolated wetlands is economic. Saving them would cost $215,000.
Mitigation of the Direct Impacts
The project preserves wetlands on site with conservation easements. If the wetland is a good candidate for wetland stormwater treatment, the project attempts to augment its hydrology.
The direct impacts of Westfield's planned activities are proposed to be mitigated by the construction of 2.89 acres of non-forested wetlands and by the preservation of 65.32 acres of wetlands on site.
Section 3.3.2 in the Basis of Review provides:
Subsections 3.3.2[.1] through 3.3.2.2 [of the Basis of Review] establish ratios for the acreage of mitigation required compared
to the acreage which is adversely impacted by regulated activity.
District Ex. 4, CHAPTER THREE, P. 21. When preservation of wetland and other surface waters is the vehicle of mitigation, it also provides:
The ratio guideline for wetland and other surface water preservation will be 10:1 to 60:1 (acreage wetlands and other surface waters preserved to acreage impacted).
District Ex. 4, CHAPTER THREE, P. 24.
The ratio of wetlands and other surface waters proposed for preservation (65.32 acres) to wetlands proposed to be permanently destroyed (1.61 acres) by Westfield is more than
40 to 1, well within the guideline.
The wetland area to be created is designated as Wetland B2. Adjacent to two wetland systems, Wetland A3 and Wetland C2, and lying between them, Wetland B2 will also serve as a wetland habitat wildlife corridor.
The 2.89 acres of created non-forested wetlands that will constitute Wetland B2 offset 1.36 of non-forested impact, a ratio of 2.13 to 1. The ratio is within the guidelines for created wetlands in Section 3.3.2.1.1. of the Basis of Review.
In the District's view, the applicant's wetland mitigation proposal provides the District with reasonable assurances that impacts to wetland functions will be offset. Put slightly differently by Mr.Sauskojus, in the view of
District staff, "weighing the proposed direct impacts, the secondary impacts and the mitigation provided, . . . there will not be adverse impacts on site or offsite . . . ." (Tr. 293). Since downward and lateral seepage from Pond P11 was not taken into account, however, the mitigation plan offered by Westfield is not designed to offset any impacts from the seepage to Wetland A3 and the Cypress-forested Wetland. These impacts are secondary impacts.
Secondary Impacts
A secondary impact is an impact that follows a direct impact to a water resource. An example of a secondary impact is boat traffic increase because of the installation of a boat ramp or a marina that poses an increased threat of collision with manatees. The construction of the boat ramp or the marina would entail direct impacts to the water resource. The increased boat traffic would constitute impacts secondary to the construction of the ramp or marina.
A way to minimize secondary impacts is through buffers.
Just as the Cypress-forested Wetland should be buffered from development, so should the isolated wetlands
on-site. Isolated wetlands are important for several reasons. They accept the brunt of the discharges from the developed uplands and so are responsible for filtering nutrients,
pesticides and chemicals from stormwater and other run off. They also are spots where wildlife congregate. Birds, in particular, will be under siege from the cats that inevitably accompany development. Buffers, particularly vegetated buffers,
assist in protection of wetlands whether contiguous or isolated.
Section 3.3.7 of the Basis of Review provides:
Secondary impacts to habitat functions of wetlands associated with 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.
District Ex. 4, CHAPTER THREE, Pg. 16.
The upland activities of the Project have an average 25-foot buffer. For the bulk of the Project, the buffer is at least 15 feet, a minimum buffer that is normally required. Close to the headwaters of Wetland A3, however, the Southern Pod of development does not have a buffer that is equal to or more than 15 feet. In this area and other areas where there are less than 15 feet of buffer (such as around isolated Wetlands B8 and D3), the Project calls for a double silt fence, that is, a two- rowed fence to hold back silt.
The silt fence will protect the wetland from damage during grading of the lots and construction of the residences.
But it will not protect the wetland from secondary impacts caused by upland activities after the Project is developed.
The buffers are made up of bahaia grass primarily.
The import of the buffer's composition was explained at hearing by David Sauskojus, a District employee:
If a buffer is made up of pasture grass, it is definitely much less effective relative to protecting habitat functions than . . . an undisturbed upland.
. . . [I]n this case, . . . in the past before they made it pasture, [the undisturbed upland would have] consisted of palmettos, bryonia, bushes, [and] shrubs, that would have provided some kind of habitat value to the wetland itself.
(Tr. 282). Despite the low quality of the composition of the buffers, the additional width of buffers in other areas that allow the average of the buffers to exceed 25 feet was reasonable assurance in the view of District personnel that the encroachment of development closer than 15 feet in certain areas would not have secondary habitat impacts to Wetland A3. Because of this "offset," the District did not request the applicant to mitigate for the encroachments into the minimum 15 feet of buffer normally required.
Cumulative Impacts
Section 3.2.8.1 of the Basis of Review provides:
Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past,
present, and future activities as described in 3.2.8 would then result in a violation of state water quality standards as set forth in subsection 3.1.1(c) or significant adverse impacts to functions of wetlands or other surface waters identified in subsection 3.2.2 within the same drainage basin when considering the basin as a whole.
District Ex. 4, CHAPTER THREE, P. 19.
The Project will not cause unacceptable cumulative impacts on the wetlands and other surface waters on site.
Fish, Wildlife and Listed Species
Under the Basin of Review, when a party applies for an ERP, "[g]enerally, wildlife surveys will not be required." District Ex. 4, Basin of Review, Section 3.2.2, CHAPTER THREE, page 4. The Basin of Review details when a wildlife survey is required:
The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that criteria in subsection 3.2.2 through
3.2.2.3 and subsection 3.2.7 will not be met. Survey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.
Id. It is apparent from the record that District staff initially believed that a wildlife survey was needed.
The file of record contains a document prepared by District staff entitled "Project Information Review List," (the
"First Request for Additional Information" or "1st RAI"). Dated March 7, 2003, it refers to the Application's receipt one month earlier. Under the heading "SITE INFORMATION," the following appears:
Has any current wildlife survey been performed on site? In particular, what recent observations have been made of wildlife usage within Wetlands B4, C4 and B12? The submitted wildlife survey not only is almost three years old, but it represents a preliminary effort.
(emphasis supplied), Westfield Ex. 19, File of Record,(1st Volume), p. 104. The staff request for additional information continues with recommendations not only to cure the outdated nature of the survey but also for the methodology that should be used:
Id.
Staff would recommend, for the above three wetlands, that a survey be performed which is consistent with Florida Fish and Wildlife Conservation Commission's methodology, documented within; Standardized State Listed Animal Species Survey Procedures for FDOT Projects by Jim Beaver, revised in 1996, and Wildlife Methodology Guidelines by Mike Alan, 1988. Reference Rules 40D-4.101(1)(c) and (e) and 40D-4.301, F.A.C. and Section 3.2.2, Basis of Review (B.O.R.).
The file of record reflects a response to the 1st
RAI. With regard to the question as to whether a current wildlife survey has been performed, the criticism of the submitted survey and the recommended methodology to be used in a
subsequent survey, Westfield's ERP consultant, King Engineering Associates, Inc., ("King") responds:
Site conditions have not changed since King conducted the original preliminary listed species survey. During more recent site visits, King staff have not observed any additional listed species, or evidence of their breeding/nesting activity on the subject property. Onsite wetlands B4 and C4 are essentially shallow, wet depressional areas in the pasture. While these herbaceous wetlands could potentially provide occasional foraging habitat for wading birds, they do not represent suitable habitat for breeding/nesting of any listed species. Wetland B12, a forested wetland, likewise does not represent suitable habitat for breeding/nesting of listed species, and no listed species have been documented in this wetland. As a follow-up effort to King's preliminary listed species survey, and following recommendations made in that report, King has performed additional wildlife surveys. Specifically, a Southeastern Kestrel Survey and Gopher Tortoise Burrow Survey were conducted by King. The results of these follow-up surveys, which were included with Attachment
7 of the original submittal, revealed that neither of these two listed species is currently present on, or breeding/denning on, the subject property.
Westfield Ex. 19, File of Record, (1st Volume), p. 123.
On May 7, 2003, the District responded by letter to the additional information provided by King with a second Request for Additional Information (the "2nd RAI"). The letter states, "[y]our permit application still lacks some of the components necessary for us to complete our review; the enclosed
checklist describes the missing information." District Ex. 19, File of Record, (1st Volume), p. 184). The checklist attached, under the heading "SITE INFORMATION" states:
The response to Request for Additional Information (RAI) Comment No. 3, regarding wildlife surveys, does not give the District reasonable assurance that threatened or endangered species do not use the wetlands proposed to be impacted. Many changes have taken place in the vicinity of the project since King performed the preliminary survey three years ago. The construction of the Suncoast Parkway and several nearby residential developments have re-shaped habitat availability within this area. The District strongly recommends performing a wildlife survey to evaluate the usage by threatened or endangered species of Wetlands B4, C4 and B12. The survey should be performed using the previously noted Florida Fish and Wildlife Conservation Commission (FFWCC) methodology. Additionally, when/if the survey is performed, please provide details regarding the actual survey, including but not limited to, dates, times of day, location and methods used.
Westfield Ex. 19, File of Record (1st Volume), p. 185.
On June 20, 2003, King responded in writing to the 2nd RAI. With regard to the strong recommendation of a wildlife survey that uses the FFWCC methodology, King wrote:
The applicant is confident based on the results of the existing Preliminary Listed Species survey and the extended amount of property contact time by field scientists and District staff in the intervening months when hydro-period, wetlands delineation, and
permit application work were on-going, that no wetland dependent species are present.
Westfield Ex. 19, File of Record, (1st Volume), p. 198. In addition to the time spent on the preliminary survey, the response lists 64 hours of time when the site was visited for purposes of "[w]etland delineation, wetland delineation & [h]ydro-periods," "h]ydro-periods," "[h]ydro-period [r]eview with SWFWMD," "[f]ollow-up Gopher Tortoise/Kestrel [s]urvey" and "[f]ield [v]isit with ACOE staff." Id.
On July 18, 2003, a third RAI ("3rd RAI") was issued by staff. Satisfied with the June 20, 2003, response with regard to the earlier inquiries about a wildlife survey, the 3rd RAI makes no reference to the earlier requests with regard to site information or the need for wildlife survey.
Dr. Baca, Dr. Blanco's wetlands ecologist, criticized the wetland information provided by Westfield along the same lines as did District staff in the documents in the file of record. For example, Dr. Baca testified with regard to endangered species that a survey should be conducted over several seasons. A great deal of time must be spent studying the particular habitat and looking for particular organisms. "It cannot be an aside to other work . . . with wetlands or soil studies . . . [i]t has to be a focus of [a wildlife survey]." (Vol. III, tr. 33).
A survey for endangered or threatened species requires time and focus precisely because of the nature of listed species; in Dr. Baca's words, "they're not around very much and sometimes they're not around very long." (Vol. III, tr. 32).
Time of day that a survey is conducted, moreover, has an impact on the likelihood that wildlife will be found on site. As Dr. Baca testified,
Most of the time, you'll find more wildlife on-site around the hours of dusk and dawn
. . . Other times, especially during cold weather, wildlife will come out during the hottest part of the day, which is around noon . . . [a]ll of these add to the amount of time that would be required to do a proper study.
(Vol. III, Tr. 33). There is no evidence of record as to time of day of the visits used by Westfield for credit toward wildlife observation.
Finally, it is apparent that the on-site visits following the preliminary species survey three years prior to the submission of the application did not employ the methodology recommended by the District: the FWWCC methodology. Perhaps an equivalent methodology could be employed, but there is no evidence of an attempt to conduct a survey with an acceptable methodology, either that of FWWCC or an equivalent.
The District's acceptance of the Kestrel Survey may have been appropriate.7 But the hours spent visiting the site for wetland delineation and purposes other than to survey wildlife were not shown to have employed the FWWCC methodology or its equivalent and do not supplant the need for a wildlife survey that employs an appropriate methodology.
The Mitigation Plan
When the impacts of a project that requires an ERP permit are such that an applicant is unable to meet the criteria for approval (the "public interest test"), the applicant may propose or accept measures that mitigate the adverse impacts of the regulated activity so that the Project in its entirety can be demonstrated to be "not contrary to the public interest." In other words, "[t]he mitigation must offset the adverse effects caused by the regulated activity." § 373.414(1)(b), Fla. Stat.
It is "the responsibility of the applicant to choose the form of mitigation." Id. As explained by the testimony, all of the mitigation proposed by Westfield is on-site.8
The Respondents' Joint Proposed Recommended Order addresses mitigation for the adverse impacts caused by the Project. The proposed findings that relate to mitigation are summed up in paragraph 16 of the proposed order:
16. The mitigation for the project is appropriate and adequately compens[]ates for
the unavoidable direct and secondary wetland impacts from the Project.
Respondents' Joint Proposed Recommended Order, p. 6. In support of this finding, the proposed order cites to the File of Record, Westfield Ex. 19, testimony from Mr. Courtney at Tr. 66-76 and 120-121 and testimony from Mr. Sauskojus at Tr. 284-286.
Mr. Sauskojus' testimony explains how the mitigation plan adequately mitigates for the direct impacts to wetlands on site. But that explanation does not demonstrate mitigation for all of the potential impacts. No effort was offered for how the plan was designed to mitigate for the impact of draw-down from Wetland A3 caused by low elevation of Pond P11 due to seepage, for example, because seepage was not accounted for in the ICPR modeling. Mr. Courtney's testimony is no different with regard to the same critical omission.
Westfield, quite simply, did not take into account, as Mr. Vecchioli testified, the effect of seepage in the information it provided the District. Nor was the mitigation plan designed to mitigate for secondary impacts that might have been indicated by a wildlife survey since an appropriate wildlife survey was not conducted.
At bottom, Westfield did not provide reasonable assurances as required by the statutes and rules; it omitted an adequate wildlife survey from the submission of information to
the District and it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland. Its mitigation plan does not make up for Westfield's failure to demonstrate that the Project is otherwise "not contrary to the public interest."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat.
These proceedings are governed by Florida Administrative Code Chapter 28-106. Joint Pre-hearing Stipulation.
Requirement of an ERP Permit
Section 373.414, Florida Statutes, authorizes the governing board of the District or the Department of Environmental Regulation to "require such permits and impose such reasonable conditions as are necessary to assure that the construction . . . of any stormwater management system, . . . impoundment, . . . appurtenant work, or works will comply with the provisions of [Part IV of the Act governing the Management and Storage of Surface Waters]."
Florida Administrative Code Rule 40D-4.041, in part pertinent to this case, states:
40D-4.041 Permits Required.
Unless expressly exempt by law or District Rule an Environmental Resource Permit shall be obtained from the District prior to:
The construction and operation of any new surface water management system . . .
District Ex. 3, Rules of the Southwest Florida Water Management District, Chapter 40D-4, Individual Environmental Resource Permits, p. 4-4. There is no dispute that an ERP is required for Westfield to construct a Surface Water Management System on the site of Ashley Glen.
Additional Criteria
Section 373.414, Florida Statutes, bears the catchline, "Additional criteria for activities in surface waters and wetlands." It provides, in part,
As part of an applicant's demonstration that an activity regulated under this part will not be harmful to . . . water resources
. . ., the governing board or the department shall require the applicant to provide reasonable assurances that state water quality standards . . . will not be violated and reasonable assurance that such activity in, on or over surface waters or wetlands
. . . is not contrary to the public interest.
* * *
In determining whether an activity, which is in, on, or over surface waters or wetlands, . . . is not contrary to the public interest, the governing board . . . shall consider and balance the following criteria:
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 enhance significant historical and archaeological resources under the provisions of s. 267.061; and
Whether the current condition and relative value of functions being performed by areas affected by the proposed activity.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the governing board . . ., in deciding to grant or deny a permit, shall consider measures proposed by . . . the
applicant to mitigate adverse effects that may be caused by the regulated activity.
Such measures may include, but are not limited to, onsite mitigation . . .
The conditions for issuance of individual and other types of permits are contained in Florida Administrative Code Rules 40D-4.301 and 40D-4.302. These include that "an applicant must provide reasonable assurance that the construction . . . 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 adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District;
will not adversely impact the quality of receiving waters such that . . . water quality standards . . . will be violated;
will not cause adverse secondary impacts to the water resources;
* * *
Fla. Admin. Code R. 40D-4.301(1). The rule also provides that "[t]he standards and criteria contained in the Basis of Review for [ERP] Applications shall determine whether the reasonable assurances required by [the rules] have been provided.
After application of the pertinent statutes, rules and sections of the Basis of Review, the District issued the Draft Permit.
For the Permit to be finally issued, Westfield must demonstrate that its application complies with the requirements of Sections 373.413 and 373.414, Florida Statutes (the "statutory requirements") as well as two administrative rules: Florida Administrative Code Rules 40D-4.301 and 40D-4.302 (the "rule requirements").
Basis of Review
With regard to the District's Basis of Review for Environmental Resource Permitting, Florida Administrative Code Rule 40D-4.301(3) provides:
The standards and criteria contained in the Basis of Review for Environmental Resource Permitting Applications shall determine whether the reasonable assurances required by subsection 40D-4.301(1) and Rule 40D- 4.302, F.A.C., have been provided.
District Ex. 3, p. 4-20. Nonetheless, the Basis of Review provides in Section 1.3 for flexibility so long as overall District water resource objectives are met:
the review criteria is to meet District water resource objectives. However, the criteria are designed to be flexible.
Performance criteria are used where possible. Other methods of meeting overall objectives will be considered depending on
the magnitude of specific or cumulative impacts.
District Ex. 4, CHAPTER ONE, P. 1 (e.s.). The provision of the Basis of Review are interpreted by the District to mean that the Basis of Review "provides guidance in how the District receives reasonable assurances that the conditions of issuance in [Rule Chapter] 40D-4 are met" and "to provide descriptions of how reasonable assurances would be obtained." (Tr. 274).
The Ultimate Issue
The ultimate issue is whether the applicant has met the conditions for issuance of the Permit. The greater weight of the evidence in this case is that Westfield has met those conditions in some respects but not in all.
By virtue of the failure to account for the effect of seepage from Pond P11 on Wetland A3 and the Cypress-forested Wetland on Dr. Blanco's property and the failure to conduct an adequate wildlife survey, Westfield has not provided reasonable assurance that the construction and operation of the SWM System:
"will not cause adverse water quantity impacts to receiving waters and adjacent lands;" Fla. Admin. Code. R. 40D-4.301(a);
"will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District" Fla. Admin. Code R. 40D-4.301(d); and
"will not cause adverse secondary impacts to the water resources [of the District]" Fla. Admin. Code R. 40D-4.301(f).
Westfield, moreover, "as part of [its] demonstration that [the SWM System] will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district" is required "to provide reasonable assurance that such activity . . . is not contrary to the public interest."
§ 373.414(1), Fla. Stat.
The criteria listed in Section 373.414(a), Florida Statutes, must be balanced to determine whether the activity proposed by Westfield in its application is not contrary to the public interest. Because of Pond P11's location adjacent to Wetland A3 and the Cypress-forested Wetland, its depth and the extent of its surface area, and the lack of accounting for seepage from Pond P11, as well as the lack of a wildlife survey as a base for determining secondary impacts from the activity proposed by Westfield, it is determined that the criteria listed in Section 373.414(1)(a) 1., 2., 5., and 7., weigh heavily toward a determination that the proposed activity is contrary to the public interest. The other criteria are either not applicable or do not carry much weight in the balancing test.
The Project, therefore, has not been demonstrated by Westfield to be not contrary to the public interest.
While its mitigation plan offsets the direct impacts to the wetlands onsite, the plan was not designed to mitigate two potential impacts that were not acknowledged by Westfield:
1) the potential impact to Wetland A3 and the portions of the Cypress-forested Wetland on Dr. Blanco's property caused by drawdown from Pond P11 when seepage keeps the pond from reaching an appropriate elevation; and (2) the secondary impacts to wildlife that might have been indicated by an appropriate wildlife survey.
The mitigation plan, therefore, cannot be determined to offset potential effects of the proposed activity that, on the basis of the evidence and record in this case, have not been taken into consideration in the showing of Westfield and the analysis by the District.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Individual Environmental Resource Permit sought by Entryway and Westfield be DENIED.
DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2004.
ENDNOTES
1/ The court reporting service used in Tampa was different from the one used in Dade City. As a result, Volume III pagination begins with a page one rather than following the pagination of the first two volumes. Pages in the first two volumes will be referenced in this order as "Tr." followed by the page number without reference to the volume. Pages in the third volume will be referred to as "Vol. III, Tr." and the page number assigned by the second court reporter.
2/ The letter was admitted into evidence as Westfield Exhibit 20.
3/ Mr. Courtney is an employee of King Engineering Associates, Inc., of Tampa, and the director of its ecological services department. Included under his department's responsibilities are ERP permitting support and listed species surveys. See Tr. 26.
4/ According to the Draft Permit, P11 takes up 36.85 "Acres @ Top of Bank"; according to a demonstrative exhibit the open surface area of P11 is 42.79 acres.
5/ The source of this water would include precipitation or stormwater runoff from the west of Wetland A3.
6/ Although reference in the Permit is made to "General Conditions" (see District Ex. 5, page 8, General Conditions), the general conditions of the Permit were not attached to the Permit introduced by the District into evidence (see District Ex. 5), but unrebuttted testimony from Mr. Ritter was presented that such a general condition applies to all SWFWMD permits.
See Tr. 225.
7/ The gopher tortoise search is another matter. Gopher tortoises are upland species.
8/ ". . . [I]n deciding to grant or deny a permit, [the governing board] shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136."
§ 373.414(1)(b), Fla. Stat.
COPIES FURNISHED:
Margaret M. Lytle, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604
Jay J. Bartlett, Esquire Bricklemyer, Smolker & Bolves, P.A.
500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602-4990
Marcy I. LaHart, Esquire Marcy I. LaHart, P.A.
711 Talladega Street
West Palm Beach, Florida 33405-1443
David L. Moore, Executive Director Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
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 on Remand. 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 |
|---|---|---|
| Jan. 25, 2005 | Agency Final Order | |
| Dec. 17, 2004 | Recommended Order | Modeling for surface water management system`s impact on contiguous wetland omitted the effect of seepage, and an adequate wildlife survey was not conducted. Recommend that the application for an Environmental Resource Permit be denied. |
