STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SIERRA CLUB, INC., )
)
Petitioner, )
)
vs. )
) FCC PARTNERS LP, LTD, PLAZA ) PARTNERS GROUP LP, LTD, PYRAMID ) PARTNERS GROUP LP, LTD, and ST. ) JOHNS RIVER WATER MANAGEMENT ) DISTRICT, )
)
Respondents. )
Case No. 05-0130
)
ST. JOHNS RIVERKEEPER, INC., )
)
Petitioner, )
)
vs. )
) FCC PARTNERS LP, LTD, PLAZA ) PARTNERS GROUP LP, LTD, PYRAMID ) PARTNERS GROUP LP, LTD, and ST. ) JOHNS RIVER WATER MANAGEMENT ) DISTRICT, )
)
Respondents. )
Case No. 05-0131
)
RECOMMENDED ORDER
Pursuant to notice, the final hearing in the above-styled case was held on April 19-22 and 26-27, 2005, in Jacksonville, Florida, before Charles A. Stampelos, Administrative Law Judge of the Division of Administrative Hearings (Division).
APPEARANCES
For Petitioner Sierra Club, Inc.:
Peter B. Belmont, Esquire
102 Fareham Place North
St. Petersburg, Florida 33701 For Petitioner St. Johns Riverkeeper, Inc.:
Kenneth B. Wright, Esquire Bledsoe, Jacobson, Schmidt & Wright
1301 Riverplace Boulevard, Suite 1818
Jacksonville, Florida 32207
For Respondent St. Johns River Water Management District:
Mary Ellen Winkler, Esquire Vance W. Kidder, Esquire 4049 Reid Street
Palatka, Florida 32177
For Respondents FCC Partners LP, LTD, Plaza Partners Group, LTD, and Pyramid Partners LP, LTD:
Frank E. Matthews, Esquire Angela R. Morrison, Esquire
D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
STATEMENT OF THE ISSUE
The ultimate legal and factual issue in this matter is whether FCC Partners LP, LTD, et al. (collectively FCC) has provided the St. Johns River Water Management District (District) with reasonable assurances that the activities it proposes to conduct for construction and operation of a surface water management system for a commercial and residential project and alteration of two surface water management systems to
implement a wetland mitigation plan pursuant to Environmental Resource Permit (ERP) Application No. 4-031-17237-4 (the Permit), meet the conditions for issuance of permits established in Chapter 373, Florida Statutes, Florida Administrative Code Rules 40C-4.301 and 40C-4.302 and the District’s Applicant’s Handbook: Management and Storage of Surface Water (A.H.).
PRELIMINARY STATEMENT
On December 3, 2004, the District issued a notice of final agency action for approval of the ERP. Once approved by the District’s Governing Board, the ERP will authorize FCC to construct a surface water management system for additional office, residential, light industrial, retail, and hotel space within the existing Freedom Commerce Centre, a mixed-use Development of Regional Impact (DRI) in Duval County (the Project). Additionally, the ERP authorizes the alteration of two surface water management systems to implement parts of a wetland mitigation plan.
On December 28, 2004, Petitioners filed timely petitions requesting an administrative hearing. On or about January 12, 2005, the District referred this matter to the Division and on January 21, 2005, the cases were consolidated.
On April 14, 2005, the District filed a Motion for official Recognition. Over Petitioners’ objection to two of nine documents, the motion was granted. (Transcript (T.) 7-8).
On April 18, 2005, the parties agreed to a Prehearing Statement and, in part, that the substantial interests of Petitioners and/or a substantial number of their members will be determined in this proceeding and that the interests of those members will be adversely affected. Prehearing Statement at 20.
At the final hearing, FCC presented the testimony of John W. Dowd, III, representative of FCC; Lee A. Alford, the
Professional Engineer who supervised the project and an expert in the field of civil engineering and the design of surface water management systems; Harvey H. Harper, III, Ph.D., an expert in engineering, hydrology, limnology, water chemistry, and water quality; John B. Melko, an expert in wetland ecology; Charles L. Kocur, Jr., an expert in wetland ecology, mitigation, and functional assessment of wetlands; Brian Winchester, an expert in wetland ecology and wetland hydro-ecology and water quality; and William Michael Dennis, Ph.D., an expert in wetland ecology, fish and wildlife, mitigation, and cumulative impact analysis. On rebuttal, FCC re-called Mr. Winchester.
FCC Exhibit (FCC Ex.) Numbers 1-8, 12A-F, 13A-E, 14A-B, 15, 17-20, 22-24, 28-30, 31B-D, 32-39, 40-42, 44 (photograph 11),
46, 49-51, 53-59, 60 (0112, 0114, 0119, 0125, 0126, 4956, 4953)
and 60B, 61-64, 66, 69-72, 82-83, and 86 were admitted into evidence.
The District presented the testimony of Christine L. Wentzel, a senior regulatory scientist and an expert in wetland and wildlife ecology, mitigation, wetland delineation, and ERP permitting and regulation; Jeffrey C. Elledge, P.E., an expert in civil engineering, water resources engineering, hydrology, surface and groundwater hydrology and administration of the management and storage of surface water, the dredge and fill permitting program, stormwater management and water quality associated with stormwater management, and the environmental resource permitting program; and Dean R. Dobberfuhl, Ph.D., an environmental scientist and an expert in detrital export, limnology, and aquatic ecology. District Exhibit (D Ex.) Numbers 1-3, 6-8, 16 (items A-C and E-S), 19-21, 24-26, 28
(cover and second pages and pages 9-11), 29-31, and 33 were admitted into evidence.
Petitioners presented the testimony of Judith L. Meyer, Ph.D., an expert in microbial food webs, blackwater streams, detrital export, and stream ecosystems; Linda C. Duever, an expert in natural area identification and wetlands vegetation; Roy Robert (Robin) Lewis, III, an expert in fresh and marine wetlands, restoration and mitigation for wetlands, marine ecology, and natural area planning; Dr. Dobberfuhl with the District; Glenn C. Lowe, Jr., Division Director for the District; Joseph P. Stephenson, Jr., public works director for
the St. Johns County Board of County Commissioners; Rick McCann, a biologist employed with the Florida Fish and Wildlife Conservation Commission; Mark Middlebrook, a consultant; Edward Lehman and Michael Brown, both with the Northeast Florida Regional Planning Council; and Ben Williams, involved locally in the retail and wholesale seafood business. Petitioners’ Exhibit (P Ex.) Numbers 5-6, 16, 80A-C, and 85 were admitted into evidence.
Public comments were received during the final hearing.
The record contains a sign-in sheet and several documents.
The final hearing multi-volume Transcript was filed with the Division on May 19, 2005. The one-volume Transcript on the public comment portion of the final hearing was also filed on May 19, 2005. On June 6, 2005, FCC, the District, and Petitioners filed proposed recommended orders and memoranda of law and FCC and the District filed closing arguments.
FINDINGS OF FACT
The Parties
The Sierra Club, Inc., is a national environmental group whose purpose is to preserve, protect, and enhance the natural environment. The Sierra Club, Inc., through its Northeast Florida Group, uses the St. Johns River. It was stipulated that the substantial interests of the Sierra Club, Inc., and/or of a substantial number of its members will be determined in this
proceeding and that the interests of those members will be adversely affected.
The St. Johns Riverkeeper, Inc., is a Florida non-profit corporation whose mission is to protect, preserve, and restore the ecological integrity of the St. Johns River watershed. It was stipulated that the substantial interests of the St. Johns Riverkeeper, Inc., and/or a substantial number of its members will be determined in this proceeding and that the interests of those members will be adversely affected.
Respondents, FCC Partners LP, LTD, Plaza Partners Group, LTD, and Pyramid Partners LP, LTD, collectively hold title to the property that is the subject of the Permit and have not previously violated any District rules.
The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated as Florida Administrative Code Chapter 40C.
The FCC Site
FCC owns an 853-acre parcel in Duval County, Florida, on which the Project is to be located (the Site).1
The Site is bounded by Interstate 95 (I-95), a six-lane highway, on the east and south, Phillips Highway (US-1), a four-
lane highway, on the west, and Baymeadows Road on the north. FCC Ex. 2. Baymeadows Road includes an assortment of retail properties and office parks. A patchwork of industrial and commercial development exists adjacent to US-1 and the Site.
US-1 and I-95 meet at the southern end of the project Site near the Avenues Mall.
Based on prior approvals, 600,000 square feet of office space, 352 residential units, and an 83,500 square foot cinema have already been constructed on the southern part of the Site. In addition, approximately 124.4 acres of on-site wetlands are currently preserved under a conservation easement. FCC Ex. 14B.
Aside from the previously developed area on the Site of over 100 acres, the Site is comprised of undeveloped, mature forested uplands and wetlands. The upland and wetland areas have the following classifications under the Florida Land Use Cover and Classification System (FLUCCS): 434 (mixed forested uplands, pine, hardwood), 610 (wetland hardwood forest), 611 (bay swamp), 615 (bottomland hardwood), 617 (mixed wetland hardwood), and 630 (wetland forested mix). FCC Ex. 30.
The wetland communities include depressional pockets, shallow wetland sloughs, and seepage slopes that drain into the bottomland swamp, known as Pottsburg Creek Swamp.
The Site slopes from east to west coming from I-95 down into the bottomland swamp and west to east coming from US-1
down into the Pottsburg Creek Swamp, which serves as the headwaters to Julington and Pottsburg Creeks, which are tributaries of the St. Johns River. FCC Ex. 20.
The on-site wetlands in the center of the property (Pottsburg Creek Swamp), during certain rainfall conditions, contribute to both Julington Creek (which runs to the south) and Pottsburg Creek (which starts to the north of the Site). FCC Ex. 17.
In addition to rainwater which falls on the Site, stormwater is routed from nearby urbanized areas onto the Site through seven culverts. This water generally flows from the eastern and western sides of the property in conveyance channels and through sheet flow toward the center of the property.
Approximately 2,000 acres of off-site drainage enter the Site from the east through five large-boxed culverts. This drainage flows westerly underneath I-95 and into natural conveyances, natural ditches and unnamed tributaries to the Pottsburg Creek Swamp. The area to the east is urbanized and developed with residential, commercial, and light industrial property.
Approximately 1,000 acres of off-site drainage enter the Site from the west via two boxed culverts. The water passes through these two culverts and drains from west to east through natural conveyances also into the Pottsburg Creek Swamp. See
FCC Exs. 14B, 15, 17, and 20. This area includes US-1 and the Florida East Coast Railroad. It is an urbanized and developed area with light industrial, residential, and retail/office/cinema property.
On-site drainage comes from rainwater that actually falls onto the Site and drains into the Pottsburg Creek Swamp. Once in the Pottsburg Creek Swamp, depending on the hydrologic conditions, the water drains either north into Pottsburg Creek or south into Julington Creek. The wetlands in the center of the Site form a channelized area running north and south on the Site, which is at a lower elevation by approximately 15 feet from the perimeter areas. See FCC Exs. 17, 19, and 59; see also Finding of Fact 11.
Land to the north of the Site is generally developed as office parks and apartments.
The northern portion of the channelized flow from the swamp toward Pottsburg Creek (north and south of Freedom Crossing Trail, FCC Exs. 1, 14B, 18, and 59) has already been preserved under a conservation easement. This flow runs north into a green corridor then under J. Turner Butler Boulevard, the start of Pottsburg Creek, approximately two miles north of the project Site. Pottsburg Creek is a small creek that flows north and then west, becoming larger as it discharges to the Arlington River, which eventually flows into the St. Johns River. FCC Ex.
Pottsburg Creek is approximately five miles long with a drainage basin of approximately 12,000 acres. The basin includes both developed and undeveloped areas. See FCC Ex. 63.
To the south of the Site, the land is used for I-95 and a mixture of office park, residential, and retail (including the Avenues Mall).
Julington Creek exits the Site to the south and runs south under US-1 and underneath the Florida East Coast Railroad then west where it joins Durbin Creek and then becomes larger and ultimately discharges to the St. Johns River. FCC Exs. 17, 58, and 61.
Julington Creek is approximately eight miles long and has a drainage basin of approximately 23,000 acres. This drainage basin comprises both developed and undeveloped areas. Furthermore, there are approximately 3,000 to 4,000 acres of wetlands and upland preservation in the Julington Creek corridor running south of the project Site. D Exs. 16 and 29.
The level of wildlife utilization of the Site is lower than expected. This may be explained in part by the reduced connectivity because of the surrounding roads and development. No federally or state listed species have been identified on the Site. See § 2.0(cc), A.H. Wildlife found on the Site is limited primarily to those in a typical urbanized forest such as snakes, armadillos, rabbits, raccoons, moles, possums, and
frogs. Invertebrate species can be found. Amphibians and reptiles have been seen primarily in the center of the Site. There is evidence of feral hogs being on-site. Small birds, such as doves, blue jays, cardinals, and mocking birds, can be seen along the perimeter of the Site although few migratory birds use the Site because of the thick canopy and the “very mature forest” which permeates the Site. Also, I-95 and US-1 are natural deterrents to these migratory birds.
The Project
The Site is a mixed-use DRI in Duval County, known as the Freedom Commerce Centre. The approved DRI consists of approximately 853 acres, 526 acres of which are either in conservation or preservation. FCC Ex. 2.
FCC intends to develop approximately 208 acres of the remaining acres not previously developed or encumbered. The project includes four development pods, including a small parcel in the northwestern corner of the Site, just south of Freedom Crossing Trail; a parcel in the northeastern quadrant of the Site; a parcel at the south-southeastern end of the Site; and a small parcel in the west-central area along the border of the Site. The largest pods of impact are in the northeast and south southeastern portions of the Site. FCC proposes to dredge and fill approximately 126.8 acres of the on-site wetlands. Under the proposed plan, the developed areas will be 85 percent
impervious coverage. The identified Cypress Tree on the Site will be preserved. FCC Exs. 2, 14B, and 19.
FCC sought an ERP from the District for the construction of a surface water management system to support the development.
The Project includes a stormwater management system comprised of ten wet detention ponds natural and man-made channels to direct the flow of water settling ponds and oil skimmers to help clean the stormwater and culverts for road crossings. See FCC Exs. 18-19. There are no adverse water quality impacts expected as a result of the construction and operation of the system. See also Prehearing Statement at 24- 25.
The Project has been reviewed in its entirety and does not include any future phases.
Wetland Impacts
To develop the 208 acres on the Site, FCC proposes to directly impact 126.8 acres of wetland impacts (126.7 acres of wetland impacts and 0.1 acres of right-of-way wetland impacts, FCC Ex. 14B). Less than 17 acres within the 25-year floodplain will be impacted. Approximately 24.7 acres of mixed hardwood wetlands (617) will be impacted during the development of the northeastern and southeastern pods; 53.7 acres of mixed forested wetlands (630) will be impacted during the development of the
northeastern and northwestern pods; and 48.4 acres of wetland hardwood forest (610) will be impacted during the development of the western and southeastern pods. See FCC Exs. 14B, 19, 30, and 31D; D Ex. 6 at 5.
The Project will result in indirect (secondary) impacts to an additional 7.4 acres of wetlands.
The values of functions these wetlands provide to fish and wildlife have been evaluated using the five factors set forth within Section 12.2.2.3, A.H. These factors are condition, hydrologic connection, uniqueness, location, and fish and wildlife utilization.
Condition
The on-site wetlands being impacted have impaired functions from the perspective of hydrology, although, in general, the overall condition of the wetlands to be impacted is good. The wetlands have a good canopy and diversity of community types. The hydroperiods vary with both saturated and inundated areas. The hydrology of the Site has been altered through a series of culverts and man-made stormwater conveyance systems. The historical sheet flow has been disrupted and channelized by construction and development surrounding the Site. For example, there is evidence of subsidence or hydrologic alterations associated with an old stormwater ditch constructed in the northeast portion of the Site. Subsidence
occurs when the soils are subject to oxidation. Oxidation removes the organic material from the soil and the soil sinks, exposing the roots of the wetland trees. Portions of the on- site wetlands also show indications of converting to uplands due to changes in hydrology as indicated by soil oxidation and the colonizing of young pine trees along with some evidence of exotic and nuisance species.
In addition, the wildlife function is impaired due to the Site’s isolation and lack of wildlife crossings, and the surrounding urbanization. The Site has lower wildlife diversity and abundance than typically associated with a site of its size and character. See Finding of Fact 21.
Hydrologic Connection
All of the wetlands on the Site are hydrologically connected. There are high spots on the Site that are only saturated, meaning the water does not come above the land surface, and there are areas of the Site that are inundated, meaning that the water comes above the land surface. Under certain storm events, there may be extensive inundation into areas that are normally only saturated. The hydrologic connection leaving the Site could be better; however, water and small mammals can move through the culverts at this point under US-1 to the south and Baymeadows Road to the north.
The wetlands on the Site contribute to the production of detritus and detrital export. Detritus is organic material derived from dead and decaying organic material. Detritus can exist in two forms: dissolved or particulate. The dissolved form of detritus is mostly molecular, material that could dissolve and flow in water. Dissolved organic carbon (DOC) includes compounds that are both easily and slowly assimilated by bacteria and other compounds. DOC comes from leaching of stored leaf litter and from stored organic matter in soils. The particulate form of detritus is organic material that does not dissolve in water, like small leaf fragments, wood chips or branches.
Detrital export is the amount of organic matter being exported from a system. The microbial food web is a complicated array of natural processes in which different sized particles of organic matter are used by different components of the system. Detrital export is viewed as the base of the food web because the detritus and DOC that enters a water body is used by detritivores, macroinvertebrates, and insects as a source of food and these organisms, in turn, become food for larger organisms. See P Ex. 5. If the amount of detritus entering a waterbody is reduced, there may be a consequent reduction, e.g., in the detritivores and organisms that consume the detritivores.
During the hearing, there was much testimony and evidence offered regarding the potential loss of detritus and detrital export in light of evaluating the proposed project’s potential impacts on and off the Site.
The wetlands on the Site contribute to detrital production and export because of their extensive tree canopy and their hydroperiod.
Based on the weight of the evidence, as a general proposition, the loss of 126.8 acres of wetlands on the Site can be expected to cause a loss of detritus. The amount of the loss of detritus and detrital export and potential off-site impacts are less certain.
FCC’s experts performed a detrital export analysis of the wetlands to be disturbed (which at the time exceeded the current number of impacted wetlands, FCC Ex. 28) and determined that "[w]ithout [considering the offsite contribution of detrital material], the estimated detrital export from the proposed impact area is less than 8% of the total export from the [Site]." Id.
FCC also provided an analysis quantifying the detrital export functional value of the mitigation proposed at the time of the analysis. FCC Ex. 29.
FCC conducted a comparison of actual total organic carbon (TOC) at the project Site which shows no identifiable contribution from the impacted areas to the creeks. Readings of
total organic and dissolved organic carbon in the St. Johns River are markedly higher than the readings in the creeks at and near the Site. FCC Exs. 61-62, and 64. Sampling data demonstrated that Julington and Pottsburg Creeks and the St. Johns River had an over-abundance of organic carbon. FCC’s experts opined that there is no evidence of a significant site-specific contribution to the lower organisms necessary to the food chain and that it is not likely that a loss of detrital export will adversely affect fishing or marine productivity off the Site.
The scope and extent of FCC’s analyses was criticized indirectly by, e.g., Dr. Meyer and Dr. Dobberfuhl.2
There was no persuasive evidence that there are likely to be adverse impacts or affects to the St. Johns River or to fish or recreational values or marine productivity therein.
With regard to impacts to Julington Creek and Pottsburg Creek, the evidence differed. The evidence offered by Petitioners, including District experts, from the standpoint of qualitative analysis, indicates that there will be a loss of detrital export which will cause adverse affects on fish and marine productivity in Julington Creek, and to a much lesser degree in Pottsburg Creek, as a result of losing 126.8 acres of wetlands on the Site. See, e.g., Endnote 2. On the other hand, based on the qualitative and limited quantitative analyses offered by FCC, there is evidence that it is not likely that
there will be a loss of detrital export occurring off-site and that it is not likely that hydrologic connectivity or fish or marine production on or off the Site will be adversely affected.
It was asserted that detrital export areas were unnecessary in Trout Creek, also known as Whites Ford Creek, (the receiving waters for the Rood/Rayland mitigation tracts discussed below). Actual empirical evidence demonstrated that
49 (mgC/L) TOC in Trout Creek is less than the 54 mgC/L TOC found in Julington Creek. FCC Exs. 70-72.
The alleged salinity differences noted by the Petitioners in the St. Johns River between Trout Creek and Julington Creek do not warrant a finding that marine productivity is diminished.
Notwithstanding the above, the District required FCC to provide detrital export mitigation and applied a four-to-one wetland creation ratio based on the assumption that all 126.8 on-site wetland acres were exporting detritus. Multiplying that number by four, resulted in the need for 507.2 acres of mitigation specifically for detrital export. See P Ex. 85 at 25; see also Findings of Fact 99-104.
The District's required four-to-one detrital export mitigation was reasonable and has been satisfied by FCC.
Uniqueness
The vegetative communities and hydroperiods of the wetland areas to be impacted are fairly common in northeast Florida and are not considered unique. The wetlands to be impacted are not necessarily unique. The uniqueness of the wetlands to be preserved is high.
Location
The location of the wetlands to be impacted in relation to the surrounding area is not ideal because of the extensive development that surrounds the Site. See Finding of Fact 6, regarding the roadways which border the Site.
Fish and Wildlife Utilization
Based upon the different community types within the Site, the different hydroperiods of the Site and its overall maturity, extensive fish and wildlife utilization would be expected. However, the expected amount of fish and wildlife utilization on the Site has not been observed. See Finding of Fact 21.
Secondary Impacts
Under the first part of the secondary impact criterion, FCC must provide reasonable assurance that the secondary impacts from construction, alteration and intended or reasonably expected uses of the project, will not adversely affect the function of adjacent wetlands or other surface
waters. See § 12.2.7(a), A.H. When evaluating the project under this part of the criterion, the District considered increased noise, night lighting, visual disturbances and other impacts that are attendant to human activity associated with the FCC project. In addition, several wetland areas will be severed as a result of the project. These secondary impacts are equivalent to the loss of the ecological value of 7.4 acres of wetlands. FCC has proposed additional mitigation within the overall mitigation plan to offset the project’s anticipated adverse secondary impacts the construction and use of the site have on the remaining wetlands.
Under the second part of the secondary impact criterion, FCC must provide reasonable assurance that the construction, alteration, and intended reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland-dependent listed species for enabling existing nesting or denning by these species.
§ 12.2.7(b), A.H. There are no upland areas on the project site that are suitable for nesting or denning by listed species.
Under the third part of the secondary impact criterion, and as a part of the public interest test, the District must consider any other relevant activities that are very closely linked or causally related to any proposed dredging or filling which will cause impacts to significant historical
and archeological resources. § 12.2.7(c), A.H. When making a determination with regard to this part of the secondary impact criterion, the District is required by rule to consult with the Division of Historical Resources. § 12.2.3.6, A.H. The District received information from the Division of Historical Resources and FCC regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division of Historical Resources, the Division indicated that there would be no adverse impacts from the project to significant historical or archeological resources. Also, District staff did not observe any significant historical or archeological resources on the project site.
Under the fourth part of the secondary impact criterion, the applicant must demonstrate that any future phases of a project and certain additional project-related activities will not result in adverse impacts to the function of wetlands or result in water quality violations. § 12.2.7(d), A.H. The proposed project has been reviewed in its entirety and does not include any future phases. In an earlier application submittal, there was an internal roadway proposed on the project site that would connect the northern and southern portions of the project. This roadway is no longer a part of the application, and the
area where the roadway was proposed will be preserved as part of the on-site mitigation plan for the project.
The District also considered the FCC DRI Development Order and road improvements required for US-1 and Baymeadows Road. At this time, the impacts are not well defined; however, the impacts are expected to be relatively minor. These relatively minor impacts can be offset with mitigation within the drainage basin. The applicant has also conceptually shown that these road improvements can be designed in accordance with the District's rule criteria.
Surface Water Diversion and Wetland Drawdown Impacts
If the water within proposed wet detention ponds is at a lower elevation than adjacent wetlands there is a concern that water would drain out of the wetlands and follow the gradient into the wet detention ponds that are at a lower elevation. Two of the wet detention ponds proposed could present this issue: Pond A2 in the northeastern portion of the Site and Pond 1 at the southern end of the Site. Those ponds will be constructed with impermeable barriers to prevent adverse impacts to adjacent wetland areas. FCC has also proposed the construction of bypass ditches. Two of these bypass ditches will be lined to prevent water from flowing from the wetlands into the stormwater management system.
Mitigation Areas
As compensation for the adverse direct and secondary impacts to the value of functions provided to fish and wildlife, FCC has proposed regionally significant on-site wetland and upland preservation: off-site wetland creation, enhancement, and preservation; off-site upland preservation and enhancement; and purchase of mitigation bank credits. FCC Exs. 13A and 13B.
The off-site portion of the overall mitigation plan includes four components: the Rood Tract, the Rayland Tract,3 the Hunt Farm Tract, and credits from the Tupelo Mitigation Bank (TMB). D Ex. 6.
On-site Mitigation
FCC proposes to preserve 393.1 acres of remaining on- site wetlands in conjunction with 8.8 acres of adjacent upland buffer and internal upland islands. With the existing preservation area of 124.4 acres, a total of approximately 517.5 acres of on-site wetlands will be preserved. FCC Ex. 14B.
The on-site wetlands being preserved are very mature forested areas including the bay swamp area on the east central portion of the Site. FCC Exs. 14B and 30.
The deep swamp area of the Site, a wide corridor running north and south, and the entire central portion of the Site, including the lowest elevations of the Site and the very narrow threads of Pottsburg and Julington Creeks, will be
preserved as part of the 393.1 acres. FCC Ex. 19. The thick canopy above the swamp and creek areas will also be preserved.
In addition, the mean annual floodplain (the wetter part of the Site) is almost completely preserved. Approximately
16.6 acres of the total wetland impact of 126.8 acres is within the 25-year floodplain areas in the southeastern portion of the proposed development on the Site. FCC Ex. 31D.
The on-site conservation/preservation area is approximately one-half mile wide at its mid-point on the Site. FCC Exs. 14B and 31D. Preservation of on-site wetland and upland areas provides an adequate wildlife corridor for habitat. These preservation areas will be encumbered under conservation easements that are consistent with Section 704.06, Florida Statutes, and dedicated to the District in perpetuity.
The on-site preservation area is contiguous with a conservation corridor along Julington Creek of approximately 3,000 to 4,000 acres of uplands and wetlands.
The District established a ratio of 30 to one for the new 393.1-acre wetland preservation along the Pottsburg Creek Swamp/Julington Creek corridor. Application of the ratio resulted in 13.1 offset acreage credits. The ratio means, for example, that for each acre of wetland preservation, FCC receives 1/30th of a credit. FCC Exs. 14B, 17, and 40; P Ex. 85 at 26.
The District established a ratio of ten to one for the new 8.8-acre upland preservation, for 0.9 offset acreage credits.
A 1.4-acre upland strip that is located between US-1 and the western project boundary and several small areas previously encumbered by easements (e.g., drainage easements) or other restrictive covenants will not be included as part of the conservation easement, and FCC has not proposed any work within these previously encumbered areas. FCC Exs. 14B and 31D; D Ex. 6 at 6.
Rood Tract Off-Site Mitigation
The Rood Tract is located approximately one mile south of County Road (CR) 210 at the terminus of Leo Maguire Road in central St. Johns County within Basin 5. (The Rood/Rayland Tracts are located approximately ten miles from the Site.) FCC proposes to preserve 248.7 acres of mixed forested wetlands (primarily bottom-land hardwood) and 6.5 acres of adjacent upland preservation under a conservation easement. This mitigation area is a streambed with surrounding wetlands and, like the FCC Site, is a headwater area. There are small basins within the Rood Tract that overflow and discharge northerly into Whites Ford Creek. Whites Ford Creek leads to Trout Creek and eventually to the St. Johns River. See FCC Ex. 35; D Exs. 6, 30, and 31.
The Rood Tract site is adjacent to approximately 1,400 to 2,500 acres of wetland and upland preservation that have been encumbered by conservation easement and an additional 600+ acres that have been proposed to be encumbered under a conservation easement as mitigation for other projects.
The Rood Tract mitigation area is a mature forest and could be timbered (although not recently) and used for silviculture. The vegetation is very mature like the vegetation on the Site and has a good hydroperiod. The presence of exotic species is minimal.
The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas as well as preventing activities, such as silviculture timbering, and other relatively unregulated activities. This in turn will allow the conserved lands to provide more forage and habitat for the wildlife that would utilize those areas.
Rayland Tract Off-Site Mitigation
The Rayland Tract is located within Basin 5, immediately east of the Rood Tract. The Rood and Rayland Tracts are bisected by Leo Maguire Road, a dirt roadway. The Rayland site is approximately 808 acres and bounded to the north and east by Whites Ford Creek, to the south by undeveloped uplands
and wetlands, and to the west by Leo Maguire Road. FCC Exs. 32- 36.
The Rayland Tract is connected to the east by the Sylvan property of approximately 1,000 acres under a conservation easement, which will have silviculture activity for another 20 years. I-95 borders the Sylvan property on the east. The Cummer Trust/Twelve Mile Swamp Property (consisting of approximately 20,000 acres) is located adjacent to and east of
I-95 and the Sylvan property. D Exs. 30 and 31. There are large drainage culverts under I-95 between the Sylvan and Cummer property. According to Ms. Wentzel, there are large boxed culverts between 12 and 15 feet wide that are underneath I-95 and connect the Cummer property with the mitigation preservation lands on the west side of I-95. These boxed culverts may serve as a wildlife crossing for small mammals and also maintain hydrologic connection. The Rayland/Rood Tracts, in conjunction with Whites Ford Creek, provide a wide corridor for wildlife.
The Rayland Site is also contiguous with areas that have been preserved, including approximately 3,100 acres from various projects.
A majority of this tract has been maintained for silviculture for many years and provides minimal habitat benefits or diversity to wildlife. Another part of the site includes naturally forested wetlands that have been selectively
timbered during recent operations, except along a narrow band associated with Whites Ford Creek. A majority of the planted pine areas are currently wetlands providing minimal functions.
The Rayland Site includes wetland and upland preservation, wetland enhancement, and wetland creation. The entire Rayland Tract will be placed in a conservation easement, which among other things, will prohibit roads. T. 64-65. This should be a required condition of the ERP.
FCC proposes to preserve a total of 295.9 acres of wetlands and 27.4 acres of adjacent uplands. Preservation of these upland and wetland areas will enhance the existing wildlife habitat by removing the silviculture operations and allowing the areas to naturally succeed and regenerate with indigenous species.
Portions of the Rayland Tract are similar to the FCC Site, and by accepting drainage from other off-site areas, these wetlands will eventually drain into Whites Ford Creek. In turn, Whites Ford Creek, later called Trout Creek, discharges to the St. Johns River. See Finding of Fact 67. The amount of nuisance and exotic species is limited. In terms of fish and wildlife utilization, bears have been observed in the immediate vicinity of the Rayland Tract.
FCC also proposes to create 121.5 acres of wetlands from existing upland islands scattered throughout the parcel,
and vegetatively enhance approximately 363.6 acres of existing wetlands that are currently maintained as pine plantation. In the enhancement areas, FCC proposes to remove a majority of the existing pine and replant the area with a mixture of native wetland hardwood trees and to enhance the wetland hydrology pursuant to detailed grading, planting, and monitoring plans.
For the wetland creation areas, FCC will grade the site to create deeper elevations to allow for more extended hydroperiods and will plant mixed hardwood trees. The geotechnical report for the site, which includes soil borings, demonstrates that the underlying soil of these areas of the Rayland Tract is similar to that of the Site.
Creation and enhancement of the wetland areas will provide improved species diversity and hydrology that, in turn, will enhance the habitat for wildlife. The quality of detritus is expected to be improved.
Hunt Farm Tract Off-Site Mitigation
The Hunt Farm Tract, approximately 203 acres, is located in southwestern St. Johns County, within an adjacent, but different drainage basin (Basin 8), and approximately 11 miles south of the TMB. FCC Exs. 32-33 and 38.
The Hunt Farm Tract was the site of an active potato
farm.
FCC proposes to preserve 15.5 acres of mixed hardwood wetlands associated with a tributary of Deep Creek in conjunction with 40.0 acres of adjacent mixed forested uplands. See FCC Ex.
38 for an aerial of this site. Further, FCC proposes to enhance approximately 147.8 acres of mixed forested upland habitat from an existing potato farm and remove this acreage from active agriculture.
The entire Hunt Farm Tract will be placed in a conservation easement.
The farm provides essentially no viable wildlife habitat and has altered the historic drainage patterns in the vicinity of the Site; altered the hydrology of the adjacent wetlands; and contributed to the degradation of the St. Johns River through the discharge of untreated, pollutant-loaded runoff.
The proposed enhancement of this site will create viable wildlife habitat. The detritus produced from this Site will, in time, benefit the ecology of the St. Johns River. The water quality improvements implement and are consistent with the District’s Surface Water Improvement and Management (SWIM) Plan for the area, although they are not part of the SWIM Plan. See Findings of Fact 118-120.
The proposed enhancement will also eliminate furrows so that the hydrology can be restored. A portion of the Hunt Farm Tract will drain towards a ditch or man-made canal bordering the
western boundary of the property that eventually flows into the St. Johns River. Another portion (northern) of the site will discharge into a tributary of Deep Creek and eventually into the St. Johns River. FCC Ex. 38. There is a hydrologic connection between the Hunt Farm Tract and the St. Johns River.
The Hunt Farm Tract will have depression areas which function similarly to the depression areas on the Site. These areas will fill up with water and then discharge. The upland preservation on the Hunt Farm Tract is different than the wetlands to be impacted on the Site. However, there are certain species that need uplands in order to fulfill their life cycles. The exotics on the Hunt Farm Tract are minimal. In terms of off- setting wildlife impacts at the Site, the wetlands and uplands at the Hunt Farm Tract are of a similar nature to the Site.
Tupelo Mitigation Bank Off-Site Mitigation
The TMB is an approximately 1,525-acre mitigation bank that was mostly in silviculture production. The TMB is located in Basin 5, east of Highway 13A and south of Highway 208 in St. Johns County and approximately eight miles south of the Rayland/Rood mitigation sites. FCC Exs. 32-33, and 39.
FCC proposes to purchase 114.9 credits from the TMB located in Basin 5. Each credit equals approximately 3.3 acres, meaning that the 114.9 credits represent 379.17 acres of mitigation. See Pet. Ex. 85 at 26. (One mitigation bank credit
is equivalent to the ecological value gained by the successful creation of one acre of wetland. § 12.4.5(b), A.H.)
A letter of reservation has been issued for these credits from the owner of the mitigation bank.
The overall goal of the bank is to enhance, restore, and protect wetlands and uplands within the bank, promoting conditions similar to those that existed prior to alteration. This will be accomplished by ceasing silviculture activities and eliminating most planted pines; reducing most beds and swales through re-grading; restoring hydrologic levels and patterns by filling or plugging ditches; reducing the grade of unneeded roads, and restoring altered, channelized stream sections; restoring native forest tree types through nurturing existing recruited trees and by supplemental plantings; eliminating hunting leases; implementing prescribed burning; and implementing perpetual preservation and management.
Town Branch (a creek tributary to Six Mile Creek) runs through the northern portion of the TMB site and connects to Six Mile Creek, which discharges to the St. Johns River. FCC Ex. 39. VIII. Mitigation Ratios and Application
As discussed above, the proposed mitigation includes preservation, creation, and enhancement mitigation, to offset adverse impacts of the project:
On-Site Wetland Preservation | 393.10(acres) |
On-Site Upland Preservation | 8.80 |
Rood Wetland Preservation | 248.70 |
Rood Upland Preservation | 6.50 |
Rayland Wetland Preservation | 295.90 |
Rayland Upland Preservation | 27.40 |
Rayland Wetland Enhancement | 363.60 |
Rayland Wetland Creation | 121.50 |
Tupelo Mitigation Bank | 114.90(credits) |
Hunt Wetland Preservation | 15.50(acres) |
Hunt Upland Preservation | 40.00 |
Hunt Upland Enhancement | 147.80 |
See, e.g., FCC Exs. 13A, 40 at 2, and 41; P | Ex. 85 at 16; D Ex. 6 |
at 13. |
Mitigation ratio recommendations and guidelines are set forth in Sections 12.3.2-12.3.2.2 of the District’s Applicant’s Handbook. The District determined that certain mitigation ratios should be applied: ten to one for upland preservation; 30 to one for wetland preservation; 15 to one for wetland enhancement; four to one for wetland creation; ten to one for upland enhancement; three to one for mitigation bank credits; and four to one for detrital export impacts. Id.4
These ratios reflect a consideration of the ecological lift associated with the mitigation, time lag, and risk. Time lag accounts for the time period between incurring wetland impacts and the mitigation fully offsetting the functions that are lost as a result of the impacts. When considering the long term, accounting
for time lag results in more resources being provided by the mitigation plan then the original impact area. Risk accounts for the probability of success of the mitigation.
There are 134.2 acres of direct and secondary impacts which will result from the project. The District also added a ten percent factor (13.42 acres) reflecting “greater long term ecological value,” which yielded total habitat impacts of 147.62 acres. D Ex. 6 at 25.
When the ratios are applied to the proposed mitigation acreage and credits, there are 147.65 total habitat offset acres. Id. at 26.
The District also determined that detrital export impacts should also be mitigated and used a four to one wetland creation ratio. Id. at 25. The direct impact number of 126.8 acres was multiplied times four to equal 507.2 acres of total detrital export impacts. (Although the Applicant’s Handbook does not provide a ratio for detrital export, the District considered a range for the ratio and concluded a four-to-one ratio was appropriate. The ratio chosen is reasonable.)
Again, the four-to-one ratio, as well as the other ratios used, reflects a consideration of the ecological lift associated with mitigation, time lag, and risk. A similar ratio was applied for wetland creation in the habitat function offset.
The mitigation acreage for wetland preservation on-site (393.1), Rood (248.7), Rayland (295.9), and Hunt (15.5) were added with the wetland enhancement acreage for Rayland (363.3) and Tupelo (379.17 (114.9 credits x 3.3 acres/credit)) to yield 1695.97 acres. The District then applied an ecological lift factor of 15 percent to the 1695.97 acres of wetland preservation and enhancement components of the mitigation plan, resulting in a value of 254.40 acres. Id. at 26. (Dr. Dobberfuhl stated that the 15 percent factor is the difference in the averages over time he found in the literature for hardwood wetlands and pine silviculture.) This factor represents the ecological improvement with regard to detrital production associated with converting, e.g., a pine plantation that is subject to periodic harvesting to hardwood wetlands, i.e., more detrital production is expected from replanting hardwood wetlands. T. 956.
An ecological lift of 100 percent was applied to the upland preservation, upland enhancement, and wetlands creation areas resulting in 352.1 acres. Because these areas are currently uplands and may be developed, there could be a complete loss of detrital export from these areas.
The total detrital export offset was 606.5 acres versus proposed detrital export impacts of 507.2 acres. P Ex. 85 at 26.
The replanting of the wetland enhancement and creation areas on the Rayland Tract will enhance the production, the
quality and quantity of detrital material. The areas that are currently pine plantation provide less value in terms of quantity and quality of detritus as compared to hardwoods. The upland enhancement at the Hunt Farm Tract will produce detritus in the form of particulate and dissolved organic carbon. The on-site and off-site preservation areas will benefit detrital production because unregulated activities like silviculture timbering will be prevented. When areas are timbered, there is a consequent loss of detrital production. The detrital export function of the wetlands to be impacted is not only offset, but exceeded by the mitigation plan. FCC did not propose any impacts on-site that will not be offset by the proposed mitigation.
Section 12.2.1, A.H. - Elimination and Reduction
“The degree of impact to wetland and other surface water functions caused by a proposed system, whether the impact to these functions can be mitigated and the practicability of design modifications for the site, as well as alignment alternatives for a linear system, which could eliminate or reduce impacts to these functions, are all factors in determining whether an application will be approved by the District.” § 12.2.1, A.H. “Except as provided in subsection 12.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of subsections 12.2.2 through
12.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.” § 12.2.1.1, A.H.
FCC has reduced the proposed wetland impacts by more than 130 acres from 258 acres to the currently proposed 126.8 acres during the course of the application review process. See generally FCC Exs. 31B-D.
One of the most substantial modifications to the proposed design includes the removal of an extension of an existing roadway (Sunbeam Road) from its intersection with US-1, easterly, over I-95 to Western Way. Construction of this east/west roadway across the headwater swamp would have further bisected the wetlands.
Another substantial modification includes the removal of a north/south connector roadway and, instead, the creation of two access roadways that terminate in cul-de-sacs and service future development in the northern and southern portions of the
Site.
There was limited evidence produced regarding whether
additional modifications (other than reducing wetland impacts from
258 acres to 126.8 acres) were appropriate or whether additional modifications, if appropriate, would be “economically viable.” There is no persuasive evidence that information regarding
economic viability was produced to the District during the application process. (Ms. Wentzel testified that FCC “did not submit an economic analysis relative to 12.2.1 of the Applicant’s Handbook.” T. 781, 849.) However, Mr. Dowd testified that the project reached the point, where if further reductions were made, FCC (Goodman Company) would be unable to pursue the development.
Notwithstanding the above, during the processing of the instant ERP, the District concluded that the mitigation implemented was part of a plan that would provide regionally significant ecological value and have greater long-term value than that of the impact Site. See D Ex. 6 at 6-7. As a result, FCC would not have been required to reduce or eliminate impacts pursuant to Section 12.2.1, A.H., assuming this assessment was proven during the final hearing.
Based on the persuasive evidence offered on this topic, it is determined that FCC was not required to eliminate or reduce the impacts of the project as contemplated in Section 12.2.1, A.H. Stated slightly differently, FCC offered persuasive evidence that it has complied with the elimination and reduction criteria because it has proposed mitigation that implements all or part of a plan that provides regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted. (“The District will not require the applicant to
implement practicable design modifications to reduce or eliminate impacts 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.” § 12.2.1.2 b., A.H.)
Section 12.2.1.2 b., A.H. – The “Out Provision” – Significant Regional ecological Value of Mitigation
The location of the mitigation and improvements are regionally significant and the perpetual easements ensure greater long-term ecological significance than is associated with the wetlands to be impacted.
Under the pending application, there are four plans of regional ecological value for consideration under Section 12.2.1.2 b., A.H.5 The on-site preservation is a part is the Julington/Durbin Creek corridor, which is a plan of regional ecological value. This plan includes the proposed on-site preservation; the existing on-site preservation of 124.4 acres; the mitigation required by prior District permits in the Julington/Durbin Creek corridor; and publicly-owned lands within the corridor. See D Exs. 6, 16, and 29. The on-site preservation in conjunction with the publicly-owned lands has ecological value. Almost 3,000 to 4,000 acres of wetlands and uplands form a
preservation corridor that provides good habitat and hydrology, although wildlife has been limited. See Findings of Fact 62-63.
The proposed mitigation plan implements a number of other plans that provide regional ecological value have been considered under Section 12.2.1.2 b., A.H.
The plan of regional ecological value for consideration for the Rayland and Rood Tracts consists of the proposed mitigation for this project; the mitigation required by prior District permits; and lands under public ownership.
The Rayland and Rood mitigation sites are contiguous with, and in the vicinity of, wetland preservation and upland preservation parcels that have been accepted as mitigation for other projects. The combination of land currently encumbered by conservation easements and lands proposed for mitigation under this application, totals approximately 3,100 acres in an area that is under significant development pressure. These mitigation areas increase the protected area provided by the District’s Cummer Trust/Twelve Mile Swamp and provide significant added wildlife value to this protection plan. The overall mitigation plan provides significant regional ecological value. See Findings of Fact 67-80.
In its Technical Staff Report dated December 30, 2003, District staff stated, in part, that the TMB “project will result in a significant acreage of enhanced forested wetlands, a small
amount of enhanced uplands, and the improvement of wildlife habitat. In addition, the project will restore the historic hydrologic patters to the degree possible, including Town Branch, which is a major tributary to Sixmile Creek.” D Ex. 21 at 6. The project site is located within regional watershed 5 which is nested within watershed 4. Id. at 9. By virtue of receiving a permit from the District, the TMB enhances and contributes to the ecological value within a regional watershed.
The preservation and improvement of the Hunt Farm Tract wetlands and uplands implements the District’s regional objective of improving the water quality in the Lower St. Johns River by addressing stormwater pollution associated with agricultural land use. The Lower Basin SWIM Plan is a District plan to improve the water quality in the lower St. Johns River, including the Hasting Drainage District.
The District SWIM plan calls for the development and implementation of best management practices, the construction of stormwater treatment systems and the acquisition/forestation of farmlands in order to accomplish this objective. The proposed mitigation is part of a larger ecological system and is part of an intact wetland system.
The FCC mitigation plan for the Hunt Farm Tract is consistent with the District’s SWIM Plan to purchase conservation easements and reforest lands currently in row crop
agriculture. By converting the property from row crops to upland forest, there will be less drainage off of the property and the water quality draining off of the property is expected to improve significantly. (The Hunt Farms Tract is located within the Hastings Drainage District. This drainage district maintains a number of large ditches with substantial drainage. The St. Johns River is the eventual outlet for all of these ditches in the vicinity of the Harm Farm Tract.)
Furthermore, notwithstanding the ecological value on the Site, FCC’s mitigation will provide greater long-term ecological value because FCC has proposed significantly more mitigation than is needed to offset the project’s adverse impacts to fish and wildlife caused by the proposed wetland alteration. FCC provided mitigation to offset an additional 13 acres of wetland impacts that are not being proposed. In addition, the mitigation plan, when implemented, will provide more ecological resources above that are currently on the Site and that are expected on the Site in the future.
The proposed mitigation plan also provides additional habitat for animal species not present on the impacted wetlands on the Site.
Over objection and the denial of a motion in limine filed by FCC and the District, Petitioners introduced testimony and evidence related to a potential, yet speculative future road
project by St. Johns County (CR 2209) that might affect a portion of FCC’s proposed mitigation on the Rayland Tract. See
FCC Ex. 35 (generally showing a potential road bisecting the Rayland Tract as a single blue line and generally showing the east-west right-of-way reservation corridor leading from a proposed town center to I-95 to the east as part of the Silverleaf DRI as a jagged blue line).
A corridor study was competed in 2001, which explored various alternatives for and identified a corridor that led through the Rayland Tract. The complete proposed CR 2209 is expected to be about 20 miles.
This study was incorporated into the northwest sector
plan.
In July 2004, St. Johns County became aware that FCC
proposed to place a conservation easement over the Rayland Tract. Ultimately, an agreement was reached between FCC Partners LP, Ltd., and St. Johns County, in which FCC Partners LP, Ltd., agreed to convey to St. Johns County by warranty deed the right-of-way required to construct CR 2209 across the Rayland Tract for the right-of-way location approved by the Board of Commissioners’ Resolution on February 9, 2005. P Ex. 16.
The alignment of the corridor has changed a “little bit” since the corridor study was conducted. Changes are
frequently made during the negotiation process to applications for development approval of DRIs.
In addition, Petitioners presented testimony regarding a proposed DRI named Silverleaf that allegedly would border and partially surround the Rayland Tract. Other developments near the Rayland Tract and Whites Ford Creek were also discussed.
Petitioners contend that if the proposed mitigation will be bisected by a road in the future, or surrounded by a future DRI and other development, the mitigation could not be considered to provide “long-term ecological value,” as required by Section 12.2.1.2 b., A.H.
The envisioned CR 2209 was not considered by the District in determining whether the mitigation at the Rood and Rayland Tracts would provide greater long-term ecological value than the wetlands to be impacted. Such a roadway would require a District ERP, and all direct and secondary impacts to wetlands and surface waters would have to be offset. No ERP application has been submitted to the District for CR 2209. The specific road alignment and design are needed to determine the type and nature of any impacts that may result from the construction of CR 2209.
With respect to Silverleaf, no evidence was presented that any permit from any regulatory agency had been issued.
Rather, there was testimony that an ADA for a DRI had been submitted to the Northeast Florida Regional Planning Council.
There was evidence regarding the proposed development at Silverleaf. However, it is typical that frequent changes are made to ADAs during the review process. The Silverleaf DRI and the specific land uses contained therein have not been approved.
The District did not evaluate the Silverleaf proposed development, but its analysis assumed that the upland areas surrounding the mitigation areas would eventually be improved similar to the single-family residential development that is occurring in the area surrounding the Rood and Rayland Tracts. This assumption did not diminish the long-term regional ecological value of the mitigation areas.
Accordingly, it is open to speculation as to whether the Silverleaf DRI will be approved, whether it will ever
apply for an ERP, and the extent to which any proposed impacts would affect the current proposed ERP for FCC.
Petitioners’ theory that CR 2209 and Silverleaf will in some manner affect FCC’c proposed mitigation in the future is based on speculation and conjecture.
Florida Administrative Code Rule 40C-4.301
Florida Administrative Code Rule 40C-4.301(1)(d) - Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters
Florida Administrative Code Rule 40C-4.301(1)(d), in conjunction with portion of the Applicant’s Handbook, requires 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.
The proposed mitigation plan offsets any adverse impacts to fish and wildlife caused by the project’s proposed wetland impacts. The evidence also showed that the project will not cause the hydroperiod of wetlands or other surface waters to be altered so as to adversely affect wetland functions or surface water functions. This criterion is satisfied.
Florida Administrative Code Rule 40C-4.301(1)(f) and Section 12.2.7, A.H. – Will not cause adverse secondary impacts to the water resources
Secondary impacts have been considered and quantified to be 7.4 acres and have been mitigated. This criterion is satisfied.
Florida Administrative Code Rule 40C-4.301(1)(i) – Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed
FCC presented evidence that its mitigation plan was fully capable of being performed and functioning as proposed, based on generally accepted engineering and scientific principles.
However, the District should consider whether the monitoring period of five years should be extended as a result of the extensive mitigation proposed, including wetland creation. This criterion is satisfied.
Florida Administrative Code Rule 40C-4.302(1)(a)1.-7. - Public Interest Test
The public interest test has seven criteria, only four of which are in dispute. See Endnote 9. It is a balancing test and each factor is evaluated on its own merit, although each factor need not be given equal weight. See also
§ 373.414(1)(a)1.-7., Fla. Stat.
The public interest test applies to the parts of the project that are in, on, or over wetlands. Those parts of the project must not be contrary to the public interest. (If they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, then the project must be clearly in the public interest. No part of this project is located in or near an OFW.)
The disputed public interest criteria are discussed below.6 See Endnote 9.
Florida Administrative Code Rule 40C-4.302(1)(a)2. - Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats
The evidence demonstrated that the FCC Site is sparsely used by fish and wildlife. The weight of the evidence indicates
that, contrary to biological assumptions regarding habitat use at the Site, there was very little actual use of this Site by wildlife. See, e.g., Finding of Fact 21.
The abundance of wildlife was low considering the various types of habitat on the Site. In contrast, the evidence demonstrated that the off-site mitigation areas (specifically the Rayland Tract) are surrounded by lands used by listed species, including the Black Bear, American Bald Eagle, and Southeast Kestrel. The District considered this factor to be positive in light of the mitigation plan.
This factor is considered to be positive.
Florida Administrative Code Rule 40C-4.302(1)(a)4. - Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity
No open water exists on the Site, rather only deep swamps and creek channels. The areas proposed for development do not include the swamp or creeks. FCC Ex. 31D.
Although not quantified, from a qualitative analysis standpoint, there will be a loss of detrital export with the removal of 126.8 acres of wetlands on the Site, which may cause some potential adverse affects to the fish and marine production in Julington Creek, and to a much lesser degree, Pottsburg Creek, but not the St. Johns River. See Findings of Fact 35-46.
The District initially (and still does) considered this factor to be negative because of their determination that
the impact to the 126.8 acres of wetlands is expected to decrease detrital production and export in the vicinity of the project in the downstream waters of Julington and Pottsburg Creeks and, as a result, adversely affect the fish and marine productivity in these waters.
Notwithstanding, the District required detrital export mitigation. The request for four-to-one detrital export mitigation was reasonable and satisfied. This factor is considered to be negative to neutral.
Florida Administrative Code Rule 40C-4.302(1)(a)5. - Whether the activity will be of a temporary or permanent nature
FCC’s development and impact to the wetlands on the FCC Site will be permanent. Even though the project is permanent, this factor is considered neutral because the proposed mitigation will offset the permanent adverse impacts.
Florida Administrative Code Rule 40C-4.302(1)(a)7. - The current condition and relative value of functions being performed by areas affected by the proposed activity
The District assessed the value and functions of the wetlands on the FCC Site as “high” value and initially considered this factor to be negative. However, because the implementation of the mitigation plan will offset the wetland impacts, this factor is considered positive.
Florida Administrative Code Rule 40C-4.302(1)(b) – Will not cause unacceptable cumulative impacts upon wetlands and other surface waters
During the processing of the ERP, it was the position of FCC and the District that the project offset its functional loss by providing sufficient mitigation within District Drainage Basin 5. As a result, FCC was not required to perform a cumulative impact assessment if they were correct in this assessment.
The proposed mitigation for the project will result in the improvement of approximately 1,800 acres of wetlands within Basin 5, sufficient to offset the direct and secondary impacts in Basin 5.
Notwithstanding, FCC performed a cumulative impact analysis. After the District issued its preliminary intent to issue the ERP, Dr. Dennis performed a cumulative impact analysis and evaluated all of the reasonably foreseeable impacts in Basin 5, including Silverleaf and CR 2209. In accordance with that analysis, he opined that no more than seven percent of the “at risk” forested wetlands (FLUCCS Code numbers 611/617/630, FCC Ex. 46) would be impacted in the basin.
Approximately 25,000 (roughly 20 percent of 139,051) acres of FLUCCS Code 611/617/630 forested wetlands are already in some form of public ownership and control. FCC Exs. 30 and
Approximately 952 acres of the similar FLUCCS Code forested
wetlands would be the applicable cumulative impact to consider (13,600 x .07). Thus, after applying the guidance contained in Section 373.414(8), Florida Statutes, and Section 12.2.8, A.H., there was persuasive evidence that the project will not cause adverse cumulative impacts.
Conservation Easements
FCC submitted into evidence copies of draft conservation easements that it will execute and record for all of the mitigation areas. These conservation easements are consistent with Section 704.06, Florida Statutes, and dedicate the mitigation areas to the District in perpetuity.
Petitioners argued at hearing that a settlement agreement between FCC and St. Johns County, which may lead to FCC conveying “fee simple” title for a proposed road right-of- way to St. Johns County at a future date, creates an encumbrance that will prevent FCC from recording a conservation easement on the Rayland Tract.
The settlement agreement does not create an encumbrance that prevents the recording of a conservation easement on the Rayland Tract. The settlement agreement does not impede the placement of a conservation easement on the Rayland Tract.
Public Hearing
Many concerned citizens testified under oath during the public hearing portion of the final hearing. Their concerns supported those raised by Petitioners. Their comments have been considered during the preparation of this Recommended Order.
CONCLUSIONS OF LAW
Jurisdiction and Burden of Proof
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
The purpose of this proceeding, conducted pursuant to Section 120.57(1), Florida Statutes, is to “formulate final agency action, not to review action taken earlier and preliminarily.” McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).
The burden of proof in the proceeding is on the party asserting the affirmative in the proceeding. Department of Transportation. v. J.W.C., Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). In light of the District’s preliminary decision to approve the ERP, FCC has the initial burden at the final hearing of going forward with a presentation of a prima facie case of its entitlement to the ERP. If a prima facie case was made, the burden of going forward shifted to Petitioners to rebut that prima facie case and support the allegations set forth in the
Petitions, subject to stipulations of the parties, that FCC is not entitled to the ERP. Unless Petitioners presented "contrary evidence of equivalent quality" to that presented by the FCC and District, the ERP must be approved.
Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what might occur. Chipola Basin Protective Group, Inc. v. Department of Environmental Regulation, Case No. 88-3355, 1988 WL 617997 (DOAH Nov. 14, 1988; DER 30, 1988).
The standard for the applicant’s burden of proof is one of reasonable assurances, not absolute guarantees, that the applicable conditions for the issuance of the permit have been satisfied. Manasota-88, Inc. v. Agrico Chemical Company and Department of Environmental Regulation, Case No. 87-2433, 1988 WL 617583, 12 F.A.L.R. 1319, 1325 (DOAH Jan. 5, 1990; DER Feb. 19, 1990).
“Reasonable assurance” contemplates “a substantial likelihood that the project will be successfully implemented.” Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Hamilton County Board of County Commissioners v. Department of Environmental Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991). The reasonable assurance standard requires FCC “to deal with ‘reasonably foreseeable contingencies’ in establishing entitlement to” the ERP.
Further, FCC is “not required to disprove all the ‘worst case scenarios’ or ‘theoretical impacts’ raised by” Petitioners.
Ginnie Springs, Inc. v. Craig Watson and Department of Environmental Protection, Case No. 98-0258, 1999 WL 1483647, at
*8 (DOAH Feb. 23, 1999; DEP April 8, 1999).
The issuance of a permit must be based solely on compliance with applicable permit criteria. Council of Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983).
“The determination of whether mitigation for a proposed project is sufficient is an ultimate conclusion of law and rests with the agency.” Billie v. St Johns River Water Management, Case Nos. 00-2230 and 00-2231, 2001 WL 362658 (DOAH April 9, 2001; SJRWMD June 14, 2001 at 13)(citations omitted). See also Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113, 116 (Fla. 2d DCA 1997); 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So. 2d 946, 955 (Fla. 1st DCA 1989).
FCC has the burden to prove by a preponderance of the evidence that its application complies with the applicable statutes and rules. § 120.57(1)(j), Fla. Stat.
Applicable Statutes and Rules
The District’s requirements applicable to FCC’s ERP application are found in Florida Administrative Code Rules 40C-
4.310 and 40C-4.302. These conditions are further explained in
the Applicant’s Handbook, adopted by reference in Florida Administrative Code Rule 40C-4.091(1).
The parties stipulated that the following provisions apply in this proceeding: Florida Administrative Code Rules 40C-4.301(1)(d), (f), and (i); Florida Administrative Code Rules 40C-4.302(1)(a)2., 4., 5., 7., and (1)(b); Sections 12.2.1, 12.2.1.2 b., 12.2.7, 12.2.3.2, 12.3.4, 12.2.8, 12.2.3, and
12.3.8, A.H.; and Sections 373.414(1) and (8), Florida Statutes. III. 12.2.1 - Elimination or Reduction of Impacts
To qualify for an ERP, an applicant must eliminate or reduce adverse impacts to the functions of wetlands or other surface waters cause by a proposed system, by implementing practicable design modification as described in Section 12.2.1.1, A.H. That section provides:
The term “modification” shall not be construed as including the alternative of not implementing the system in come form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable." A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable,
consideration shall be given to the cost of the modification compared to the environmental benefit it achieves.
§ 12.2.1.1, A.H. See Dibbs v. Department of Environmental Protection, Case No. 94-5409, 1995 WL 368755, at *20 (DOAH Feb. 20, 1995; DEP April 4, 1995). The District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when either alternative set forth in Section 12.2.1.2 a. and b., A.H. applies." Id.7
The District did not conduct an elimination and reduction analysis prior to issuance of its notice of intent to issue the ERP to FCC because it considered the “out provision” (Section 12.2.1.2 b., A.H.) satisfied.
FCC has eliminated and reduced the wetland adverse impacts from the project from 258 acres to the currently proposed 126.8 acres during the course of the application review process. As noted by FCC: “The project has been revised and reduced over 20 years, and exhaustive practical design modifications have been implemented, resulting in the
December 18, 2003 application submittal.” See, e.g., FCC Ex. 13A at 1-3.
Mr. Dowd, senior vice-president for development for the Goodman Company (owner of the FCC entities), testified that in his experience with the Goodman Company, the project reached
the point that if further reductions were made that the Goodman Company would be unable to pursue the development. T. 40.
Notwithstanding FCC’s substantial modifications of the project over time, FCC did not provide an analysis of the requirements set forth in Conclusion of Law 170, including an economic viability analysis. The testimony of Mr. Dowd and other information provided by FCC are insufficient to prove that FCC met the elimination or reduction requirements of Section 12.2.1.1, A.H.
Section 12.2.1.2 b., A.H. – The “Out Provision” Significant Regional Ecological Value of Mitigation
Section 12.2.1.2 b., A.H., states that the District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when “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.” This subsection has been called the “out provision” and it applies to this application.8
The requirements of Section 12.2.1.2 b., A.H., have been met in this case. The persuasive evidence shows that FCC is implementing parts of four “plans of regional ecological value.” The four plans are: 1) the Julington/Durbin Creek
preservation corridor; 2) the Rood/Rayland preservation corridor; 3) the Tupelo Mitigation Bank ERP; and 4) the Lower St. Johns River Basin SWIM Plan.
To assess whether the proposed mitigation provides a greater long-term ecological value than the wetlands to be impacted, the following factors have been considered: 1) whether the mitigation area is part of a larger ecological system; 2) whether the mitigation area is part of an intact wetland system; 3) whether the impacted wetlands will be unlikely to maintain its functions in the long term; and 4) whether the mitigation area provides additional habitat for animal species not present in the impacted wetlands. See, e.g., Billie, 2001 WL 362658, at *9.
Here, the on-site preservation is a part of the Julington/Durbin Creek corridor, which is a plan of regional ecological value. This plan includes: 1) the proposed 401.9 acres of on-site preservation; 2) the existing on-site preservation of 124.4 acres for prior District permits; 3) the mitigation required by prior District permits in the Julington/Durbin Creek corridor; and 4) publicly-owned lands with the corridor. The plan provides regional ecological value because these areas, totaling approximately 3,000 to 4,000 acres, form a preservation corridor that connects the headwaters of Julington Creek to the St. Johns River.
The Rood and Rayland Tracts are a part of a plan of regional ecological value which includes: 1) the proposed mitigation for this project; 2) the mitigation required by prior District permits; and 3) lands under public ownership. The mitigation required for prior District permits accounts for approximately 520 acres of existing conservation easements adjacent to the proposed 1,064 acres of mitigation for this project. The project is also adjacent to publicly-owned lands or conservation easements including the Cummer Trust property and the Sylvan Tract. The plan will help establish corridors for fish, wildlife and listed species to use the resources or habitats that will be created, enhanced, and preserved.
The TMB is a “plan of regional ecological value.” Section 373.4136(1)(a)-(i), Florida Statutes, establishes standards for mitigation banks, including the amount of mitigation credits awarded. To obtain a mitigation bank permit, an applicant must provide, in part, reasonable assurance that “[t]he proposed mitigation bank will improve ecological conditions of the regional watershed.” § 373.4136(1)(a), Fla. Stat. In issuing the mitigation bank permit, the Governing Board found that the TMB provides regional ecological value.
The Lower Basin SWIM Plan is a plan of regional ecological value. One of the objectives of the SWIM Plan is to increase the value of functions performed by uplands, wetlands,
or other surface waters, or listed species by improving the water quality of the St. Johns River. The District SWIM Plan lists several strategies for improving water quality, including the development of best management practices, construction of stormwater management facilities and the purchase of easements over farms and the re-forestation of those farms. FCC is implementing part of this plan by purchasing the Hunt Farm Tract, encumbering it with a conservation easement and implementing re-forestation.
The mitigation proposed for the project also provides greater long-term ecological value than the wetlands to be adversely affected. FCC has provided more mitigation than that which is needed to offset the project’s adverse impacts to fish and wildlife caused by the proposed wetland alterations. See
Billie v. St. Johns River Water Management District, Case No. 03-1881, 2004 WL 283505, at *16-17 (DOAH Feb. 9, 2004; SJRWMD
April 13, 2004 at 34).
Petitioners’ argument that FCC’s proposed mitigation will be adversely affected by the proposed Silverleaf project, as well as potential CR 2209, is too speculative to be considered with respect to the regional significance and greater long-term ecological value of the mitigation proposed for impact. See Billie, 2004 WL 283505, at *17, ¶ 81.
Florida Administrative Code Rule 40C-4.301(1)(d) – Will not adversely impact the value of functions provided to fish and
wildlife species by wetlands and other surface waters
Florida Administrative Code Rule 40C-4.301(1)(d), (in conjunction with relevant portions of the Applicant’s Handbook, i.e., Sections 9.1.1(d), 12.1.1(a) and 12.2 et seq., A.H.,) requires 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.
Section 12.2.2., A.H., requires consideration of whether FCC’s 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 the District considers when assigning the value of functions that any wetland or other surface water provides to fish, wildlife, and listed species. They include: (a) condition;
(b) hydrologic connection; (c) uniqueness; (d) location; and (e) fish and wildlife utilization. See Billie, 2004 WL 283505,
at *28, ¶ 162.
The evidence shows that FCC is proposing to dredge and fill 126.8 acres of wetlands on the project Site. As mitigation for these impacts, FCC proposes to preserve 1,035.9
acres of wetlands and uplands, enhance 511.4 acres of wetlands and uplands, create 121.5 acres of wetlands, and purchase 114.9 mitigation bank credits. The evidence proved that the mitigation more than replaces the functions provided by the wetlands to be adversely affected by the project.
The evidence also proved that the project will not cause the hydroperiod of wetlands or other surface waters to be altered so as to adversely affect wetland functions or surface water functions. Therefore, the project complies with Section 12.2.2.4, A.H., and the requirements of Florida Administrative Code Rule 40C-4.301(1)(d).
Florida Administrative Code Rule 40C-4.301(1)(f) – Will not cause adverse secondary impacts to the water resources
The project will not cause adverse secondary impacts to water resources pursuant to Florida Administrative Code Rule 40C-4.301(1)(f). Compliance with this paragraph is
determined by applying the four-part test in Section 12.2.7(a)- (d), A.H.
Under the first part of the secondary impact criterion, FCC must provide reasonable assurance that the secondary impacts 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. When evaluating the project under this part of the
test, the District considered increased noise, night lighting, visual disturbances and other impacts that are attendant to human activity. In addition, the District considered that several wetland areas will be severed as a result of the project. All of these secondary impacts are equivalent to the loss of the ecological value of 7.4 acres of wetlands.
Additional mitigation within the overall mitigation plan offsets the anticipated adverse secondary impacts the construction and use of the system will have on the remaining wetlands and, therefore, the requirements of the first part of the criterion are met.
No secondary impacts will occur under the second part of the criterion because there was no evidence that any aquatic or wetland dependent listed animal species use uplands for existing nesting or denning.
No secondary impacts will occur under the third part of the criterion because the project will not cause impacts to significant historical or archeological resources.
Finally, no adverse secondary impacts will occur under the fourth part of the criterion. The evidence showed both that: 1) there are no reasonably foreseeable future development phases to be constructed, and 2) the roadway improvements required by the FCC DRI Development Order can be constructed in a way that is permittable under the District’s
rules and that will not result in water quality violations or adverse impacts to the functions of wetlands or surface waters. (FCC represented that the “road will not be build” [sic], FCC’s PRO at 38, ¶ 122, and FCC is bound by this and other representations of record.) Thus, the project meets Florida Administrative Code Rule 40C-4.301(1)(f).
Notwithstanding, whether FCC can obtain a modification to its DRI Development Order eliminating the on- site road is separate and distinct from the ERP process. See generally Save the St. Johns River v. St. Johns River Water
Management District, 623 So. 2d 1193, 1198 (Fla. 1st DCA 1993).
Florida Administrative Code Rule 40C-4.301(1)(i) – Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed
FCC’s mitigation plan is fully capable of being performed and functioning as proposed, based on generally accepted engineering and scientific principles.
Florida Administrative Code Rule 40C-4.302(1)(a)1.-7., Public Interest Test
Pursuant to Florida Administrative Code Rule 40C- 4.302(1)(a)1.-7. and Section 12.2.3, A.H., the construction and operation of those portions of the system located in, on, or over wetlands or other surface waters may not be contrary to the public interest as determined by considering and balancing seven criteria. See also § 373.414(1)(a)1.-7., Fla. Stat. (FCC was
not required to provide reasonable assurance that the project is clearly in the public interest because no part of the project will significantly degrade or be located within an Outstanding Florida Water. Id.).9
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats
Pursuant to Florida Administrative Code Rule 40C- 4.302(1)(a)2. and Sections 12.2.3(b) and 12.2.3.2, A.H., the District must consider whether the activity proposed in, on, or over wetlands or surface waters will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Although the wetland impact results in adverse impact to certain wetland values and functions, that impact is compensated for by FCC’s proposed mitigation plan as discussed in detail above. Additionally, there is no indication that endangered or threatened species use the wetlands to be impacted. In contrast, the proposed mitigation lands will provide long-term regionally significant habitat for fish and wildlife not present on the FCC Site, including listed species such as black bear and bald eagles. Thus, this factor is considered positive.
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity
Pursuant to Florida Administrative Code Rule 40C- 4.302(1)(a)4. and Sections 12.2.3(d) and 12.2.3.4, A.H., the District must consider whether the activity located in or over wetlands or other surface waters “will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity.” Fla. Admin. Code R. 40C- 4.302(1)(a)4.
Section 12.2.3.4, A.H. implements the Rule and
provides:
In reviewing and balancing the criterion regarding fishing or recreational values and marine productivity in [Florida Administrative Code Rule 40C-4.302(1)(a)4.], the District will evaluate whether the regulated activity in, on, or over wetlands or other surface waters will cause:
(a) adverse effects to sport or commercial fisheries or marine productivity. Examples of activities which may adversely affect fisheries or marine productivity are the elimination or degradation of fish nursery habitat, change in ambient water temperature, change in normal salinity regime, reduction in detrital export, change in nutrient levels or other adverse affects on populations of native aquatic organisms.
At hearing, Petitioners argued that a loss in detrital export to the adjacent Julington and Pottsburg Creeks would occur, thereby resulting in a loss of fish or marine
productivity to those creeks. From a qualitative standpoint, there is evidence that there will be a loss of detrital export and may be some potential impacts off-site, although not quantified. However, even assuming such a localized loss at Julington or Pottsburg Creeks, the weight of the evidence showed that there was no adverse impact to the St. Johns River or fish or the marine productivity therein.
Notwithstanding such evidence and assuming some detrital export will be lost to Julington and Pottsburg Creeks, the detrital export loss is being mitigated on a four-to-one ratio. Thus, even assuming a detrital export loss and some potential impacts off-site, the loss is off-set through the mitigation.
Nevertheless, this factor is considered negative to neutral. (Even if this factor were considered negative, the outcome of the public interest balancing test would remain the same, i.e., the proposed activity would not be considered contrary to the public interest.)
Whether the activity will be of a temporary or permanent nature
In accordance with Florida Administrative Code Rule 40C-4.302(1)(a)5., it must be considered whether the activity will be of a temporary or permanent nature. Although the wetland impacts are permanent, the mitigation is also permanent
in alleviating any adverse impacts. This factor is therefore a neutral.
The current condition and relative value of functions being impacted by areas affected by the proposed activity
Pursuant to Florida Administrative Code Rule 40C- 4.302(1)(a)7., the District is required to consider the current conditions and relative value of functions being performed in the areas affected by the proposed activity involving wetlands or other surface waters.
The proposed mitigation will compensate for and maintain the current conditions and relative values and functions of the wetlands to be impacted by the Project and will provide additional wetland functions not existing on the Site. The functions that the impacted wetlands currently provide will continue to be diminished by encroaching development pressure from the highly urbanized surroundings. The proposed mitigation is part of an overall plan that will provide regional ecological value, which enhances wildlife corridors, preserves the integrity of wetland and upland communities within the basin despite development pressures, improves the water quality of the St. Johns River, and increases the value of wetland habitat available for fish, wildlife, and listed species in the long term. The proposed mitigation will provide greater long-term benefits than the on-site wetlands being impacted can provide
because development around the wetland to be impacted would continue to diminish its existing functional value, while the proposed mitigation will permanently preserve impacted wetlands through creation, enhancement, and conservation. Thus, this factor is considered positive.
All factors of the public interest "balancing test" are determined to be positive (two) or neutral (four), except one which is negative to neutral. Overall, the portions of the project located in, on, or over wetlands or other surface waters are not therefore considered to be contrary to the public interest.
Florida Administrative Code Rule 40C-4.302(1)(b) – Will not cause unacceptable cumulative impacts upon wetlands and other surface waters
Section 12.2.8, A.H., requires applicants to “provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought.” Mitigation that offsets a regulated activity’s adverse impacts within the same drainage basin as the regulated activity for which a permit is sought is considered by the District to not cause unacceptable cumulative impacts. Id. See also § 373.414(8)(b), Fla. Stat.
The cumulative impact doctrine considers the cumulative impacts on wetlands and surface waters of similar
projects which exist or are reasonably expected in the future. See Florida Power Corp. v. Department of Environmental
Regulation, 638 So. 2d 545 (Fla. 1st DCA 1994), rev. denied, 650
So. 2d 989 (Fla. 1994).
FCC has proposed mitigation in the basin where the Project is located to address all impacts to wetlands in that basin. The Rood Tract, the Rayland Tract, and the Tupelo Mitigation Bank are in the same regulatory drainage basin as the project Site, Basin 5. Only the Hunt Farm Tract is located with Basin 8. There was persuasive evidence that in the long term, the mitigation proposed within Basin 5 off-sets the proposed impacts because the project will have approximately 1,800 acres of wetland mitigation within Basin 5. The mitigation plan includes the creation of 121.5 acres of wetlands on the Rayland Tract and the use of 114.9 mitigation bank credits which are “equivalent to the ecological value gained by the successful creation of one acre of wetland.” § 12.4.5(b), A.H. When compared to the 126.8 acres of wetland impacts and the 7.4 acres of secondary impacts, the net effect of the project over time will be to gain ecological value in Basin 5.
If the mitigation off-sets the project’s adverse impacts within the drainage basin as here, no further cumulative impact analysis is needed because there would be no adverse impacts to “cumulate” due to similar future projects. See
Sierra Club v. St. Johns River Water Management District, 816 So. 2d 687, 688 (Fla. 5th DCA 2002).
The evidence demonstrated that the adverse impacts to the functions of wetlands within Basin 5 are off-set within Basin 5, the same drainage basin. Accordingly, the project will not cause adverse cumulative impacts and no cumulative impact analysis is required for the impacts occurring in Basin 5. See
§ 373.414(8), Fla. Stat.
Even assuming a cumulative impact analysis was required, FCC performed an analysis that demonstrated no unacceptable cumulative impacts would occur.
Conservation Easements
Section 12.3.8, A.H., requires all conservation easements to be granted in perpetuity without encumbrances.
An encumbrance is defined as a “‘right to or interest in the land, which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.’” Boulware v. Mayfield, 317 So. 2d 470,
472 (Fla. 1st DCA 1974).
Petitioners argued at hearing that a settlement agreement between FCC and St. Johns County, which may lead to FCC conveying “fee simple” title for a proposed road right-of- way to St. Johns County at some unascertainable date in the
future, creates an “encumbrance” that will prevent FCC from recording a conservation easement on the Rayland Tract.
The settlement agreement, however, does not create or grant St. John’s County any right or interest in the Rayland property. Thus, no encumbrance is created by the settlement agreement that will prevent FCC from recording the conservation easements.
The draft conservation easements that FCC submitted into evidence meet the requirements of Section 12.3.8, A.H. (FCC Ex. 4). These conservation easements are consistent with Section 704.06, Florida Statutes, and dedicate the mitigation areas to the District in perpetuity.
Accordingly, FCC has provided reasonable assurance that the conservation easements will comply with Section 12.3.8, A.H.
Whether FCC is entitled to issuance of an ERP with conditions
FCC met the initial burden of proof in presenting a prima facie case that the conditions for issuance of the Permit under the relevant provisions in Florida Administrative Code Rules 40C-4.301 and 40C-4.302, the Applicant’s Handbook, and Chapter 373, Florida Statutes, have been met.
Petitioners did not present "contrary evidence of equivalent quality" to that presented by Respondents to support
their position that FCC was not entitled to the Permit. To the extent that Petitioners attempted to present such evidence, it was not as persuasive as that presented by FCC and the District.
FCC has provided the District with reasonable assurances that the conditions for issuance of the Permit, under the applicable provisions contained in Florida Administrative Code Rules 40C-4.301 and 40C-4.302, the Applicant’s Handbook, and Chapter 373, Florida Statutes, have been met.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the St. Johns River Water Management District issue ERP Application No. 4-031-17237-4 with conditions set forth in the Technical Staff Report dated April 4, 2005, and as suggested herein. See Finding of Fact 138.
DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
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 5th day of August, 2005.
ENDNOTES
1/ The District issued a conceptual permit for a portion of the Site on November 11, 1986, and modified it on November 17, 1987,
and January 9, 1990.
2/ For example, from a qualitative standpoint and based on her expertise and a brief visit to the Site, Dr. Meyer opined that there would be a loss of detritus, detrital export, and adverse impacts (to fish, e.g.) in Julington Creek as a result of losing
126.8 acres of wetlands on the Site. (Other witnesses, including District experts, also expressed similar, qualitative opinions.) According to Dr. Meyer, the loss of the wetlands on the Site would result in less leaf litter entering the system, less dissolved organic material entering the system, and less organic material stored in the benthic (on the bottom) and, therefore, a decline in DOC concentration and in secondary production. But, Dr. Meyer testified that “[n]o one has data to” make a judgment regarding the amount of detrital export that will be reduced by the proposed construction of the wetlands on the Site. Dr. Meyer also stated that the data is not available to determine what amount of detritus reduction would be required to cause an adverse impact to sport or commercial fisheries or marine productivity. She stated that a “potential for that adverse effect exists.” Dr. Meyer would “look at the percentage change in terms of fraction of wetlands remaining and what fraction of that would be lost by the development” in order to determine whether there is a threshold impact to off-site systems in this case which could be permitted without causing an adverse effect on sport and commercial fisheries or marine productivity. Dr. Meyer would also examine other variables such as the “pulse” affect, e.g., to determine potential impacts. She did not examine this issue nor collect any quantitative data, only qualitative data, regarding FCC’s project. Dr. Dobberfuhl expressed similar opinions, but stated that the only quantitative analysis he performed in this case was to determine estimates of detrital production in forest types typical of what is found on the Site and the mitigation sites. T. 953. (He determined the fifteen percent lift factor used by the District for detrital export mitigation.) Notwithstanding his analyses discussed herein, Mr. Winchester stated that the only
quantitative data he collected within the six months preceding the hearing was TOC samples. T. 577.
3/ The Rood and Rayland Tracts are part of the White Ford Creek Conservation Area.
4/ Petitioners have questioned the application of the number of credits allocated for mitigation of impacts. See Petitioners’ PRO at 22-29. For example, Petitioners contend that the high end of the wetland preservation ratio guidelines of 60 to 1 should be applied, which would, according to Petitioners, reduce the wetlands preservation from 13.10 to 6.55 acres/credits.
Petitioners also contend that the ratio for wetland creation at the Rayland Tract should be increased to be comparable to the ratio for wetland enhancement, i.e., applying a 10 or 15-to-one ratio instead of a four-to-one ratio. If a fifteen to one ratio is applied rather than a four to one ratio, Petitioners suggest that it results in a reduction of credits for the Rayland Tract wetland creation from 30.28 to 8.1 acres. T. 1203-1206, 1219- 1220, 1243. These reductions in mitigation acreage or increases in the ratios are based on the concerns of Mr. Lewis who opined, in part, that fewer credits should be given for wetland preservation on-site than for wetland preservation off-site because the on-site acreage is subject to protection.
Petitioners also contend that two other ratios should be changed reducing the credits for the Hunt Farm Tract upland enhancement from 14.78 to 7.38 acres and from 38.30 to 25.43 acres for the TMB mitigation. According to Petitioners, the habitat function mitigation off-set should be 97.66 acres rather than 146.65 acres. Having considered Petitioners’ arguments and concerns, the District’s ratios and resulting mitigation acreage for these items, as well as for detrital export impacts, are within acceptable ranges and have not been shown to be unreasonable.
5/ Mr. Lewis is critical of the “plans” considered by FCC and the District and opines that the various mitigation plans are not and do not implement a regional plan. T. 1208. Mr. Lewis’ criticisms have been considered.
6/ The parties stipulated, in part, that “[t]here are no significant archeological or historical resources recorded within the FCC project site or within any of the proposed mitigation sites” and that “the proposed project will not adversely affect navigation or cause harmful shoaling” or “the flow of water.” Further, Petitioners did not challenge the statements that “[a]s required by rule 40C-4.302(1)(a), F.A.C., and section 12.2.3.1(a) of the [A.H.], the proposed project will not cause an
environmental hazard to public health or safety and, therefore, will not ‘adversely affect the public health, safety or welfare or the property of others’” and “[a]s required by rule 40C- 4.302(1)(a)1., F.A.C., and section 12.2.3.1(c), A.H., the proposed project will not cause flooding on the property of others and, therefore, will not ‘adversely affect the public health, safety or welfare or the property of others.’” The parties also agreed that “the proposed project will not cause adverse impacts to areas classified as approved, conditionally approved, restricted or conditionally restricted for shell fish harvesting and therefore, will not ‘adversely affect the public health, safety or welfare or the property of others.’” The parties also stipulated that FCC’s permit application “establishes a prima facie case of fact with respect to,” in part, these issues and that “no further evidence relating to these issues will be introduced into evidence.” Prehearing Statement at 19-21, 25.
7/ In Billie, Case Nos. 00-2230 and 00-2231, 2001 WL 362658
(DOAH April 9, 2001; SJRWMD June 14, 2001), the District explained that “section 12.2.1.1, A.H., only requires an elimination and reduction analysis when: (1) a ‘proposed system will result in adverse impacts to wetland 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, A.H., applies.” SJRWMD Final Order at 7-8.
8 The validity of the provision was challenged and upheld in Sierra Club and St. Johns Riverkeeper, Inc. v. St. Johns River Water Management District and The Florida Homebuilders Association, DOAH Case Nos. 05-0814RX and 05-0858RX (DOAH May 3, 2005), appeal pending, Case No. 1D05-2607.
9/ It was stipulated that three factors were not in dispute and FCC’s application (FCC Ex. 13) satisfied FCC’s burden of going forward with respect to those factors. § 373.414(1)(a)1., 3., and 6., Fla. Stat.; Fla. Admin. Code R. 40C-4.302(1)(a)1., 3., and 6. Petitioners presented no contrary evidence with regard to these factors.
COPIES FURNISHED:
Peter B. Belmont, Esquire
102 Fareham Place North
St. Petersburg, Florida 33701
Kenneth B. Wright, Esquire Bledsoe, Jacobson, Schmidt & Wright
1301 Riverplace Boulevard, Suite 1818
Jacksonville, Florida 32207
Mary Ellen Winkler, Esquire Vance W. Kidder, Esquire
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177
Frank E. Matthews, Esquire Angela R. Morrison, Esquire
D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Kirby Green, Executive Director
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 14, 2005 | Agency Final Order | |
| Aug. 05, 2005 | Recommended Order | The applicant provided reasonable assurances that its project complies with the applicable provisions of Florida Administrative Code Rules 40C-4.301 and 40C-4.302, Chapter 373, Florida Statutes, and the Applicant`s Handbook. |
