STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CONSERVANCY OF SOUTHWEST )
FLORIDA, )
)
Petitioner, )
)
vs. )
)
G.L. HOMES OF NAPLES ASSOCIATES ) II, LTD., and SOUTH FLORIDA ) WATER MANAGEMENT DISTRICT, )
)
Respondents. )
Case No. 06-4922
)
RECOMMENDED ORDER
On February 26-March 1, 2007, a final administrative hearing was begun in this case in Naples, Florida, and completed on March 13, 2007, by video-teleconference before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH), pursuant to Sections 120.569 and 120.57, Florida Statutes (2006).1
APPEARANCES
For Petitioner: Gary Davis, Esquire
Post Office Box 649
Hot Springs, North Carolina 28743-0649
For Respondent, South Florida Water Management District:
Luna E. Phillips, Esquire South Florida Water Management
District
3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007
For Respondent, G.L. Homes of Naples Associates II, LTD.,: Frank E. Matthews, Esquire
Hopping, Green & Sams, P.A.
123 South Calhoun Street Post Office Box 6526
Tallahassee, Florida 32314-6526
STATEMENT OF THE ISSUE
The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 11- 02055-P, Application No. 060713-9, to G.L. Homes of Naples Associates II, Ltd. (G.L. Homes, or Applicant), which authorizes modifications to the surface water management system (SWMS) for a residential development known as Saturnia Falls (the Project).
PRELIMINARY STATEMENT
On November 20, 2006, Petitioner, Conservancy of Southwest Florida (Petitioner, or Conservancy), filed a Petition for Administrative Hearing (Petition) challenging the proposed Modification (which is referred to as the 2006 ERP). On December 5, 2006, the District forwarded the Petition to DOAH requesting the assignment of an ALJ. G.L. Homes filed a Motion
to Strike and Motion in Limine to define the scope of proceedings on December 13, 2006. On January 4, 2007, the ALJ entered an Order granting the Motion to Strike and Motion in Limine in part and striking references to the federal CZMA from the Petition. On January 29, 2007, G.L. Homes filed a Second Motion to Strike, as irrelevant, allegations regarding: (1) federal practicable alternatives, avoidance, and minimization standards; and (2) standing pursuant to Section 403.412(7), Florida Statutes. The Second Motion to Strike was granted on February 6, 2007.
On February 19, 2007, the District’s unopposed Motion to Take Judicial Notice was granted and the attached rules2 were officially recognized. On February 22, 2007, the parties filed a Joint Prehearing Stipulation.
G.L. Homes called the following expert witnesses: Jerry C. Neal, P.E., qualified as an expert in civil engineering and stormwater management systems; Terence James Hull, P.E., qualified as an expert in civil engineering and stormwater modeling; Harvey Harper, Ph.D., P.E., qualified as an expert in water quality and stormwater management systems; and Ken Passarella, qualified as an expert in wetlands ecology and ERP permitting.
The District called two expert witnesses: Anthony Waterhouse, P.E., Director of the District’s Surface Water
Management Division, qualified as an expert in the interpretation and application of the District's ERP criteria, surface water management engineering, water quality, and hydrology and hydraulics; and Anita Bain, Director of the District’s Natural Resource Management Division, qualified as an expert in the interpretation and application of the District's ERP statutes and criteria, wetland ecology, wetland functional assessment methodologies and criteria, and wetlands mitigation criteria.
The Conservancy called the following expert witnesses: Jennifer Hecker, qualified as an expert in wetland ecology, water quality assessment, and permitting rules and criteria; Jason Lauritsen, qualified as an expert in wood stork ecology; Bruce Boler, qualified as an expert in the area of wetland ecological assessment, water quality assessment, and permitting rules and criteria; and Thomas Van Lent, Ph.D., P.E., qualified as an expert in the areas of hydrology, hydrological modeling, hydrology of wetlands, and the effects of constructed drainage works on wetlands. The Conservancy also called the following fact witnesses: Andrew McElwaine; Andy Hill; Dianne Shanley; Franklin B. Adams; Susan Calkins; Kathy Worley; Nicole Ryan; and Alan Barnett Rosoff.
Respondents' Joint Exhibits 1-7, 9-14, 16-20, and 23-32 were admitted in evidence,3 as were G.L. Homes' Exhibits 1-7, 14-
18 and 22-26, and SFWMD's Exhibits 9, 10, and 14. Petitioner's Exhibits 1, 6-9, 11 D-Q were received without objection, 16 was proffered, and ruling was reserved on 11A-C, 24, 34, and 55. At this time, the objections to 11A-C are overruled, and the objections to 24, 34, and 55 are sustained.
FINDINGS OF FACT
PARTIES
The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria, pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, and Sections 373.413, 373.414, and 373.416, Florida Statutes.
G.L. Homes is an entity with the administrative, legal, and financial capabilities of undertaking the activity in accordance with the terms and conditions of the 2006 ERP, meeting the criteria in Rule 40E-4.301(1)(j).
The Conservancy was duly incorporated in 1966 under the laws of the State of Florida as a not for-profit corporation and has it headquarters in Collier County, Florida.
G.L. Homes contests the Conservancy's assertion of "associational standing." But there is no question as to the Conservancy's "citizen standing" under Section 403.412(6), Florida Statutes. The Conservancy has approximately 6,200
members, with approximately 4,200 residing in Collier County. Twenty-five current members in good standing who reside in Collier County were identified during the hearing. The Conservancy's purpose is to "protect and sustain the natural environment of southwest Florida through advocacy, education, research, land acquisition and other lawful means." Specific purposes relevant to the subject matter of this case include: "to acquire and protect sanctuaries, greenbelts, parks, and beaches"; "to assist governing bodies to remedy present pollution and to prevent future pollution of water, air, and our waterfronts and beaches"; and "to encourage and stimulate the interests of residents and visitors to the area, to increase their knowledge of, and to promote the preservation of the southwest Florida natural environment."
The Conservancy also asserts standing under Section 403.412(5), Florida Statutes. In furtherance of its corporate purpose, the Conservancy owns approximately 300 acres of land for preservation in Collier County, including a 46-acre parcel located on the Cocohatchee River downstream from the proposed Saturnia Falls development. The Conservancy also conducts scientific research in the waters of the Wiggins Pass Estuary downstream from the proposed Saturnia Falls development, including water quality monitoring and research on seagrass restoration. Further impacts to the water quality in the
Cocohatchee River would affect the value of the Conservancy's property for conservation and would affect its interests in research in the area. These interests of the Conservancy would be adversely affected if the 2006 ERP were issued improperly.
The Conservancy's assertion of "associational standing" is based on the testimony of eight of its members who engage in various recreational activities, including boating, fishing, bird-watching, nature study, and observation of wildlife. Some visit Corkscrew Swamp Sanctuary and the Corkscrew Regional Ecosystem Watershed (CREW) to view endangered wood storks and other wildlife. Some also visit and recreate in downstream waters, such as the Wiggins Pass Estuary, for fishing, boating, or wildlife observation. These interests would be adversely affected if the 2006 ERP were issued improperly.
PROJECT DESCRIPTION AND PERMITTING HISTORY
The Project site is located one mile north of Immokalee Road, approximately 2 miles east of 1-75 and lies near the CREW lands in Collier County. The entire Project site consists of approximately 646 acres, of which 533.1 acres are wetlands.
The Project has a permitting history dating back to 1997, when the previous owner, Robert Vocisano, applied to construct a development called Wildewood Lakes. The Wildewood Lakes application was denied in 1998, at least in part because wetland impacts were not reduced and eliminated to the extent practicable,
and was mediated pursuant to Section 120.573, Florida Statutes. After three years of responding to additional requests for information, the application was submitted to the Governing Board for approval in May 2002. This ERP, referred to as “the 2002 ERP,” authorized the construction and operation of a SWMS to serve a residential and golf course development, discharging to the Cocohatchee Canal via a conveyance channel/Flow-way known as the Mirasol Flow-way (Flow-way).
The Flow-way feature was to be built on lands owned by three different property owners, one of whom was the owner of the Terafina Project, and was intended to address flooding and storage criteria in the BOR and alleviate flooding problems in the region that resulted from previous drainage and development projects that altered the natural sheet-flow through the region to the Cocohatchee and Imperial Rivers, and on to the Gulf Coast. As reported in the Staff Report for the 2004 ERP, studies current at the time indicated that, during the initial part of the rainy season, the wetland systems in the vicinity of the proposed Flow- way carried the flow between the Corkscrew Swamp and the Cocohatchee Canal with the peak stages contained with the limits of the wetland areas. However, as the wet season progressed, the wetland vegetation impeded the conveyance of flow and resulted in elevated water stages that inundated properties adjacent to those wetlands, including portions of the eastern half of the Project.
There were approximately 288 acres of direct impacts to wetlands under the 2002 ERP. There was a total of 291.20 acres of onsite preserve, including 259.97 acres of wetlands and
31.23 acres of uplands. Part of the Flow-way was to be located within the eastern third of the property (225.74 acres, including 217.80 acres of wetlands and 7.94 acres of uplands), which would be preserved after construction of part of the Flow- way in 23 of those acres. There also would be off-site mitigation in the form of a payment of $1,232,000 "specifically for the purchase of 154 acres . . . of land within CREW, a project within the District's Save Our Rivers Program." Of that total, $712,404 was to be deposited in an account for the land purchase, $437,206 in an account to pay for restoration work within the CREW project, and $82,390 in an escrow account for general operations and maintenance costs incurred by the District within the CREW project.
On March 10, 2004, the Governing Board approved a modification to the 2002 ERP authorizing the construction and operation of the Project, at the time known as the Terafina PUD. This ERP is referred to as “the 2004 ERP.” The 2004 ERP removed the golf course and proposed a residential development within the same 646-acre parcel. It also discharged to the Cocohatchee Canal via the Flow-way.
The 2004 ERP modified the Project to consist of: single-family residential areas; a recreation area; internal roadway; onsite wetland preserve areas within the development of approximately 73.99 acres; and 210 acres of wetland preserve east of the development, which included the Flow-way, and is referred to as the Eastern Preserve.
The 2004 ERP proposed to impact approximately 280 acres of wetlands, slightly less than in the 2002 ERP. To mitigate for the impacts, the 2004 ERP authorized onsite mitigation consisting of the preservation and enhancement of 253.04 acres of wetlands, preservation of 31.27 acres of uplands, creation of 0.1 acres of wetlands, and offsite mitigation by a payment to the District for the purchase, restoration, and management of lands in CREW. Apparently by mistake, the amount of the CREW payment was reduced to $1,001,000, with $418,404 to go into the purchase account,
$437,206 to go into the restoration account, and $82,390 to go into the escrow account for general operations and maintenance. In addition, the time for deposit of the funds was extended to June 30, 2004.
The District included Special Condition No. 18 in the 2004 ERP, delaying any construction under the 2004 ERP until the Flow-way was completed. However, the United States Army Corps of Engineers (ACOE) refused to permit construction of the Flow-way.
On July 13, 2006, G.L. Homes submitted an application to modify the 2004 ERP (the 2006 Application), which is the subject of this proceeding. (A letter modification was issued on October 5, 2006, authorizing installation of a 48" outfall pipe within the Logan Boulevard right-of-way to convey the discharge from the Project to the Cocohatchee Canal. This letter modification was not challenged by the Conservancy and is not at issue in this proceeding.)
On November 9, 2006, SFWMD proposed issuance of the 2006 ERP authorizing the construction and operation of the residential development now known as Saturnia Falls (the 2006 ERP).
The 2006 Staff Report proposes elimination of the Flow- way, and enhancement and preservation of the 23.5 acres that would have been located in the eastern third of the Project area, similar to the rest of the Eastern Preserve. The SWMS also was altered, and the Staff Report noted that the CREW payment was made in June 2004 in the amount of $1,260,000 "as funding for the off-site mitigation in CREW," which was said to have "provided a substantial amount of up-front mitigation in CREW."
The Conservancy did not challenge the 2002 ERP or the 2004 ERP but did challenge the 2006 ERP.
THE MODIFIED SURFACE WATER MANAGEMENT SYSTEM
In addition to removal of the 23.5-acre segment of the Flow-way from the Eastern Preserve, the current proposal would modify the SWMS under the 2004 ERP by replacing the 80-foot weir at Lake 9, which was the sole final outfall under the 2004 ERP, with two operable Water Control Structures (WCS), located at the eastern (WCS-2) and western (WCS-1) boundaries of the Project, as the final outfall structures.
The 80-foot weir in the 2004 ERP consisted of a rectangular notch in the 17.7 foot NGVD berm between Lake 9 and the Eastern Preserve, with a crest elevation of 13.8 foot NGVD and a 5 foot wide, .4 foot deep rectangular notch (that is, with an invert elevation of 13.4 foot NGVD) within the 80-foot weir, which served as a bleeder for water quality. The structure was fixed, and water was to pass freely through the bleeder and over the weir depending on the water levels on either side of the structure.
In contrast, the structures proposed in the 2006 ERP are operable based on water levels in the Eastern Preserve. WCS-
1 is located in Lake 4 and discharges to the Cocohatchee Canal via a 48" reinforced concrete pipe located in the Logan Boulevard right-of-way. WCS-2 is located to the east of the development and discharges to the Eastern Preserve and then ultimately to the Cocohatchee Canal. As modified under the 2006 ERP, the SWMS
continues to consist of eleven controlled sub-basins with a total area of 397.46 acres. The remainder of the proposed Project also is the same as under the 2004 ERP, including road alignments, type and number of houses, lots, lakes and grading information, and wetland impacts. It is the position of the Applicant and the District that the mitigation proposal also is identical; but Petitioner takes the position that proposed onsite mitigation will be adversely affected by the proposed modifications and that offsite mitigation no longer has the same benefit, so that mitigation no longer fully offsets the wetland impacts.
The SWMS is set at the control elevation of 13.4 feet NGVD, which represents the wet season water table (WSWT) for the currently existing wetlands. The seasonal high water level for the wetlands was determined to be approximately 14.0 feet NGVD.
When water levels in the Eastern Preserve are below
14.00 feet NGVD (typically in the dry season), the SWMS discharges to the Eastern Preserve through WCS-2, which is located in the perimeter berm to be constructed with sloping banks and a crest elevation of 17.7 feet NGVD between the Eastern Preserve and one of the western wetland preserves, called preserve P-5. WCS-2 consists of a 23-foot weir fitted with an operable bleeder at the control elevation of 13.40 feet NGVD, and a fixed discharge V-Notch weir with an invert elevation of 14.20 feet NGVD, and a crest elevation of 15.40 feet NGVD. This
discharge will flow southerly through the Eastern Preserve to the receiving waterbody, the Cocohatchee Canal. WCS-1 will be closed during these periods. The maximum discharge rate under these conditions will be 15.28 cubic feet per second (cfs) to the Eastern Preserve. Based on the hydraulic modeling results, the Eastern Preserve experiences levels below 14 feet NGVD approximately 70% of the time on an annual basis. When water levels in the Eastern Preserve are above 14.00 feet NGVD (typically in the wet season), the SWMS will discharge predominately to the west via WCS-1 to the Cocohatchee Canal.
When the water level in the Eastern Preserve reaches 14.00 ft NGVD, the operable bleeder on WCS-2 will close and the operable bleeder/discharge structure on WCS-1 will open. During the 25- year 3-day storm, the maximum discharge rate through WCS-1 is
13.50 cfs. During these conditions, discharge will also occur through the fixed 60-degree V-notch in WCS-2, with a maximum discharge of 2.10 cfs, ensuring bidirectional flow of water so long as the water level in the SWMS stays above 14.20 feet NGVD. The total discharge rate from both structures under this condition is 15.61 cfs.
During the 25-year 3-day storm event, water levels in the Eastern Preserve fluctuate from 13.40 feet NGVD to 15.31 feet NGVD. When the water levels in the Eastern Preserve are higher than 14.20 feet NGVD, and the water level in the SWMS is
lower than 14.20 feet NGVD, water from the Eastern Preserve will enter into the SWMS through the 60-degree V-Notch in WCS-2. The SWMS is designed to receive water from the Eastern Preserve to provide flood storage and hydrology to the onsite wetlands within the development.
THE ERP PERMITTING CRITERIA
In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. In this case, the evidence must be viewed under Rule 40E-4.331(2)(a), pertaining to modification of permits, which requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification meet the applicable conditions for issuance.
Rule 40E-4.301(1) requires an applicant to provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a SWMS:
Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
Will not cause adverse flooding to on- site or off-site property;
Will not cause adverse impacts to existing surface water storage and conveyance capabilities;
Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special
standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;
Will not cause adverse secondary impacts to the water resources;
Will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, F.S.;
Will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.;
Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
Will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and
Will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41, F.A.C.
The parties stipulated that the Project either complies with Rules 40E-4.301(1)(g),(h),(j), and (k), and Sections 4.3.8, 7.5, and 9.0 of the BOR, or that those rules are not applicable.
THE SURFACE WATER MANAGEMENT CRITERIA
Water Quantity (Rule 40E-4.301(1)(a))
As indicated, the 2006 modifications eliminate the Flow-way and change the manner in which water flows in and out of the proposed SWMS. Otherwise, there are no changes to the engineered features of the SWMS.
Rule 40E-4.301(1)(a) requires that G.L. Homes demonstrate that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and not exceed the capacity of the downstream receiving water bodies.
Section 6.2 of the BOR requires that a project be designed so it is consistent with the downstream carrying capacity of the receiving waters. The receiving waterbody for this Project is the Cocohatchee Canal. The allowable discharge rate for the Cocohatchee Canal is 15.9 cfs. The Project’s calculated rate of discharge is 15.6 cfs, so the Project does not exceed the allowable discharge rate.
The Project's discharge rate is lower in 2006 (15.6 cfs) than it was in the 2004 ERP (291 cfs). Petitioner argued that the significant difference in discharge rates between the 2006 and the 2004 ERPs violated the District’s water quantity criteria. But the discharge rate calculated in 2004 was associated with the Flow-way and entailed a different overall analysis for the entire area served by the Flow-way. G.L. Homes provided reasonable assurances that the discharge rate allowed for its Project would not be exceeded, as required in Section
6.2 of the BOR.
G.L. Homes complied with Section 6.3 of the BOR which requires the 25-year, 3-day storm event to be used when computing the discharge rate for the Project.
Section 6.8 of the BOR is entitled “Offsite Lands.” Compliance with this Section requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving waterbodies are not being adversely affected. G.L. Homes complied with Section 6.8 by conducting a hydrologic analysis, using the 25-year, 3-day storm event, which demonstrated that discharge would be directed to WCS-1 and WCS-2, allowing for the passage of drainage from offsite areas to the downstream areas.
Section 6.10 of the BOR requires that the design of the Project conserve water and not over-drain wetlands. There
is nothing about the modifications that violate Section 6.10. In this case, the control elevations have been set at 13.4 feet NGVD, which is the average WSWT. The WSWT was established using biological indicators to determine the average elevation in the Project’s wetlands during the wet season. Setting the control elevation at the WSWT does not violate Section 6.10. To the contrary, when water levels are at or above the control elevation, the design helps prevent the wetlands from being drawn down below 13.4 feet NGVD, and not over-drain them. The
WSWT of 13.4 was permitted in the 2004 ERP. The structures also allow for the interchange of water from the Eastern Preserve into the preserve wetlands within the SWMS. This exchange of water helps preserve the Project’s environmental values.
Setting the control elevation at 13.4 also reduces unnecessary runoff from the Project, retaining the water for recharge. In addition, the ability of the SWMS to accept flows from the Eastern Preserve also conserves freshwater by preventing that water from being discharged downstream.
As indicated, when water levels in the Eastern Preserve are below the control elevation, no water will enter the SWMS from the Eastern Preserve. During those times, it is possible that wetlands within the SWMS will be drained into the deep lakes dug as part of the project. However, that would not be the result of 2006 modifications but would be inherent in the
previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design.
Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, by setting the control elevations at the WSWT, the water table is not expected to be lowered so as to affect the existing rights of others.
The Project also must demonstrate that the site’s groundwater recharge characteristics will be preserved through the design of the SWMS. G.L. Homes complied by setting the control elevations at the WSWT, allowing standing water in the wetland preserves to recharge the groundwater.
Section 6.11 addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. By designing WCS-1 and WCS-2 at control elevation 13.4, the Project maintains the detention component and the control (wetland protection) elevations under the previously-approved SWMS.
The Required Design Information and Assumptions are contained in Section 8.0 of the BOR. This Section includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the Project, G.L. Homes complied with Section 8.0.
Flooding (Rule 40E-4.301(1)(b))
This Rule requires G.L. Homes to demonstrate that the Project will not cause adverse flooding to onsite or offsite property.
Section 6.4 requires that building floors be designed to be protected from a 100-year, 3-day storm event. G.L. Homes complied with this provision by providing construction plans demonstrating that the building floors are being built higher than the 100-year, 3-day storm event.
Likewise, Section 6.5 pertains to providing flood protection for the Project’s roads and parking lots. G.L. Homes complied with this provision by exceeding the District’s 5-year design criteria, and instead designing the roads and parking lots using the 25-year, 3-day storm event.
G.L. Homes was required to comply with the Historic Basin Storage provision in Section 6.7, which requires the Project to replace or otherwise mitigate the loss of historic basin storage provided by the site. In this case, the amount and extent of historic storage that is being displaced by the 2006 ERP is the same as that in the 2004 ERP. However, the replacement or mitigation for loss of historic basin storage is reduced due to elimination of the Flow-way. Instead of relying on the Flow-way to address this criterion, G.L. Homes relied on the “Saturnia Falls Slough Hydraulic Study” prepared by Taylor
Engineering, the “Taylor Report” (RJ Ex. 32), which demonstrates the current flood levels in the Eastern Preserve and other adjacent properties and wetlands, and that the Project’s configuration would not affect the basin’s historic storage.
Lastly, to demonstrate that the Project will not cause adverse flooding to offsite properties, G.L. Homes was required to comply with Section 6.9, Minimum Drainage. This provision requires that the SWMS recover, consistent with the environmental criteria in 6.10 of the BOR, within 12 days or less. The Taylor Report also demonstrated that the Project will recover from the design storm event in time to provide the required attenuation for the next storm event, while preserving environmental or wetland features. There may be times when the recovery may exceed 12 days, but the need to protect the hydrology of the wetlands required the control elevations to be set at 13.4 ft NGVD. Balanced against Section 6.10, G.L. Homes still complies with Section 6.9.
Accordingly, G.L. Homes provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse flooding to on-site or off-site property, satisfying Rule 40E- 4.301(1)(b).
Storage and Conveyance (Rule 40E-4.301(1)(c))
Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development will not adversely impact existing surface water storage and conveyance capabilities. In order to accomplish this demonstration, applicants are to consider the capability of the adjacent properties to both store and convey stormwater runoff from their developments.
Section 6.6 of the BOR, entitled Floodplain Encroachment, specifies the parameters by prohibiting a net encroachment into the floodplain, between the average WSWT and the 100-year event, which will adversely affect the existing rights of others. G.L. Homes addressed this criterion through the analysis submitted and contained in the Taylor Report. The Taylor Report used the hydrologic model, HEC-HMS, and hydraulic model, HEC-RAS, to provide a simulation of flood stages propagating through the Eastern Preserve and the adjacent wetland system. This analysis assessed the existing flood stages within the offsite areas, starting at the Cocohatchee Canal and ending approximately 2-3 miles northeast of the eastern boundary of the Project. The analysis captured the expected flood levels during both the 25-year, 3-day and the 100-year, 3-day storm events in the area's current condition, and then compared the analysis of the two storm events
considering the Project in its development condition. The analysis relied on the Project’s proposal to remove the current melaleuca infestation from the Eastern Preserve as part of the Project’s post-development condition. The Taylor Report concluded that the removal of such exotics would remove a flow impediment and allow the water to flow through the Eastern Preserve at a higher rate, and therefore at lower flood stages. The Taylor Report made these conclusions while accounting for the development as well as the mitigation-required plantings.
The Taylor Report, along with Mr. Hull’s testimony, demonstrated that even with the mitigation reaching full maturity, the removal of melaleuca results in lower flood stages than the study area is currently experiencing.
The evidence was that the model used by Taylor Engineering, the HEC-RAS model, is an appropriate model to determine flood stages and to calculate the floodplain conveyance. Furthermore, although Petitioner attacked the choice of inputs, mainly the “Manning’s n coefficients” used to determine the roughness or the friction provided by current and post-development vegetation, the balance of the evidence supports the coefficients contained in the Taylor Report as reasonable and within the ranges of the cited data and models. Petitioner’s expert, Dr. Van Lent, who conducted no analysis of his own, admitted that HEC-RAS was an accepted tool to use for
floodplain conveyance and that the other models he suggested are either inappropriate or rarely used by ERP applicants.
The Applicant provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse impacts to existing surface water storage and conveyance capabilities, satisfying Rule 40E-4.301(1)(c). However, that is not to say that the 2006 ERP replaces the storage and conveyance capabilities that would have been provided under the 2004 ERP with the proposed Flow-way, which also required removal of melaleuca and required the same mitigation plantings except within the Flow-way itself. To the contrary, storage and conveyance capability under the 2004 ERP clearly would have been greater.
Wetland Impacts (Rule 40E-4.301(1)(d))
This Rule provision, while typically associated with the wetland ERP criteria review, also applies to the SWMS through Section 6.12 of the BOR, which requires that a lake system be designed so that an adverse gradient is not created between the lakes and wetland areas. G.L. Homes complied with this criterion by setting the control elevation at 13.4 feet NGVD, the WSWT, for the lake system, the SWMS wetland preserves and the Eastern Preserve, ensuring no gradient (or difference in elevation) between the wetland elevation and the lake elevation.
Petitioner argued that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts to the wetlands. Contrary testimony indicated that setting the control elevations within the development area at the WSWT protects the onsite wetlands and ensures that those wetlands will function as expected. Mr. Waterhouse testified that additional analysis, such as groundwater or evapotranspiration, is not necessary because the Project was designed so that the control elevation that affects the lake levels and the wetlands are the same. The testimony was that, since the control elevation was set using the WSWT, the timing and levels within the wetlands will not be affected by the revised SWMS, and that no additional modeling, as recommended by Dr. Van Lent, is necessary because the SWMS complies with Section 6.12.
As indicated, it is questionable on this record whether wetlands within the SWMS will be drained during dry conditions by adjacent deep lakes. No such analysis was presented in evidence in this case. However, such an impact on the wetlands within the SWMS would not be the result of 2006 modifications but would be inherent in the previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design.
As for the 2006 modifications, the evidence was persuasive that no additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to determine that the elimination of the 80-foot weir and its replacement with WCS-1 and WCS-2 will not impact the wetlands. Water Quality (Rule 40E-4.301(1)(e))
Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the Project will not adversely affect the quality of receiving waters such that water quality standards will be violated.
Section 5.2 describes the District’s standard water quality criteria. This provision, requiring a minimum of one inch detention of stormwater, is referred to as a “presumptive criterion” because it is presumed that if an applicant provides the required one inch of detention, Class III water quality standards and rule requirements will be met. In this case, G.L. Homes provides one inch of detention in its lake system in the exact manner it did in the 2004 ERP.
A difference from the 2004 to the 2006 ERP is the classification of the Cocohatchee Canal, the Project’s receiving waterbody, as impaired for iron and dissolved oxygen (DO). Therefore, G.L. Homes was also required to comply with Section
4.2.4.5 of the BOR to demonstrate that it is not contributing to the impairment. See also Fla. Admin. Code R. 40E-4.301(2).
Section 4.2.4.5, entitled "Where Ambient Water Quality Does Not Meet State Water Quality Standards," states as follows:
If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4.
To comply, G.L. Homes must show that neither short- term (4.2.4.1) nor long-term (4.2.4.2) water quality impacts will occur. G.L. Homes complied with the short-term requirements by submitting the Construction Pollution Prevention Plan (CPPP), detailing how water quality will be protected during the construction process. In addition to the inch of treatment, the long-term water quality requirement was addressed, in part, by the Urban Stormwater Management Plan (USMP), which details various source controls or best management practices (BMPs) to be implemented once the Project is built and operating. These BMPs help keep pollutants out of the lake system. In addition to the BMPs, the USMP requires G.L. Homes to institute a water quality monitoring plan and submit results to the District for review after the Project is developed.
Dr. Harper concurred with Petitioner that the USMP as proposed
(in R.J. 28, § 6.0) was deficient in certain respects and recommended that it be clarified or supplemented to specify testing for oxygen, iron, nitrogen, phosphorus, hardness, and a few heavy metals, namely copper, lead, and zinc. Dr. Harper also concurred and recommended that that samples should be collected at both WCS-1 or WCS-2, not just at one of them, depending on which structure is discharging water at the time of sampling. (Dr. Harper confirmed the propriety of testing three times per year, which is a common frequency for monitoring in situations like this.) Mr. Waterhouse agreed with Dr. Harper's additions/clarifications and testified that the USMP, as supplemented and clarified, would comply with District’s criteria. G.L. Homes accepted Dr. Harper's additions/clarifications to the USMP.
Another component of Section 4.2.4.5 requires additional assurance for parameters that do not meet water quality standards. The District prepared the “Terrie Bates Water Quality Memo dated June 11, 2004,” referred to as “the Bates Memo,” to provide guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired waterbody.
The Bates Memo suggests that an additional 50 percent of treatment, among other BMPs, be incorporated into a SWMS.
G.L. Homes complied with the Bates Memo because runoff from the
lakes, after meeting the one inch detention treatment requirement, spills into the wetland preserves within the SWMS for an additional 50 percent of treatment. In terms of operation of the SWMS, this is no different from the 2004 ERP, but the 2006 ERP simply calculates and takes credit for the additional treatment that was also provided by the onsite wetlands in the 2004 ERP. It is uncontested that the wetland preserves within the development are not impaired and are only required to meet Class III water quality standards. When the stormwater spills into the SWMS wetland preserves, it is presumed to meet Class III water quality standards due to the one inch of detention treatment. Accordingly, the SWMS wetland preserves can be used to provide the additional 50 percent of treatment.
The Bates Memo also lists seven BMPs as potential options to consider, in addition to the extra 50 percent treatment volume. G.L. Homes is implementing 6 of the 7 items as follows: (1) the CPPP, which is a stormwater pollution prevention plan; (2) an operation plan or long-term plan addressing routine maintenance is included in the USMP; (3) planting littoral zones; (4) some utilization of onsite wetlands for additional treatment downstream of the SWMS by discharging into the Eastern Preserve wetland system through WCS-2 at times;
(5) a site-specific water quality evaluation for the Project’s
pre- and post-development conditions is addressed by the Harper Report (RJ Ex. 25); and (6) a Water Quality Monitoring Plan, which is required under the USMP.
Petitioner erroneously argued that the Bates Memo does not allow the 50 percent treatment to occur in the preserve wetlands within the development. The argument stems from the phrase “in addition to the extra 50% treatment volume” at the bottom of page 3 of the memo, and bullet No. 5 on page 4, which recommends “treatment in wetlands downstream of the SWMS.” Absent any analysis of her own or any experience in the application of the Bates Memo, Ms. Hecker contended that the Bates Memo precludes the use of onsite wetlands. The argument is contradictory and confusing because Hecker admits that the preserve wetlands within the development are not downstream of the SWMS, and acknowledges that the Eastern Preserve is the wetland downstream of the SWMS. Ms. Hecker, along with
Mr. Boler, ultimately admitted that criteria exist allowing the use of wetlands as part of the SWMS. Mr. Waterhouse, who has vastly more experience with the District’s water quality criteria than Ms. Hecker, and participated in the drafting of the Bates Memo, refuted Ms. Hecker’s position about the intent of the Bates Memo, citing to Section 5.3.1 of the BOR as additional support for the use of onsite wetlands for water quality treatment.
In addition to these water quality submittals, G.L. Homes also provided a water quality analysis specific to the Project prepared by Dr. Harvey Harper.
The analysis, entitled “Evaluation of Water Quality Issues Related to the Saturnia Falls Project” (RJ Ex. 25), referred to as the “Harper Report,” analyzed the Project’s pre- and post-development pollutant loads to help demonstrate that the Project would not contribute to the impairment of the Cocohatchee Canal. The Harper Report estimated the removal efficiency of the SWMS lakes to determine how much pollutant removal would be achieved by the lakes on the Project. Dr. Harper relied solely on the lakes without accounting for any of the additional treatment expected to occur in the wetlands or from the source control BMPs contained in the USMP, which means his report errs on the conservative side in those respects. Although the Canal is impaired for dissolved oxygen (DO), it is uncontested that a nutrient analysis is the appropriate method to assess DO conditions. The Harper Report, as summarized in the table below, concluded that the Project would result in lower post-development loading rates than the pre-development loading rates for nutrients.
Nitrogen (N) | ||||
Pre-Development Total N Load | 390.6 kg | |||
Post-Development Removal (Dry4) | Total | N | Load | 204.99 kg |
Post-Development Removal (Wet5) | Total | N | Load | 194.69 kg |
Phosphorus (P) | ||||
Pre-development Total P Load | 15.12 kg | |||
Post-Development Removal (Dry) | Total | P | Load | 5.29 kg |
Post-Development Removal (Wet) | Total | P | Load | 4.49 kg |
The Harper Report compared the Post-Development Total Basin Loading numbers for P (136.43 kg) and for N (922.57 kg), on an average annual basis, coming from the residential areas (roads and lots) to the Post-Development Removal Loads for P [5.29 kg (dry) and 4.49 kg (wet)] and for N [204.99 kg (dry) and
194.69 kg (wet)] discharging from the lakes after treatment.
The calculations demonstrated that approximately 77 percent of N would be removed by the lakes in the dry season conditions and approximately 78 percent would be removed in the wet season conditions. Approximately 95 percent of P would be removed by the lakes in both the dry and wet season conditions. Additional removal and treatment above these percentages is expected due to a number of other source control measures not accounted for in the Harper Report.
The Harper Report also concluded that iron discharges from the SWMS would be extremely low and substantially less than
the Class III standard of 1 mg/l. Petitioner presented no evidence to counter this conclusion.
Petitioner questioned the validity of Harper Report’s use of wetlands as part of the loading calculations, and attacked his underlying methodology. Petitioner's witnesses called it "bad science" to attribute pollutant loading to wetlands because wetlands remove nutrients from the water column and because attributing nutrient loading to wetlands would make it easier to obtain a permit to destroy wetlands. However, none of Petitioner's witnesses were able to credibly defend the position that wetlands cannot contribute to the loading calculations and at times conceded to this fact. Generally, wetlands can in fact contribute some nutrients that pass through without being taken up by wetland vegetation, either because the water is moving through the wetlands too fast or because the nutrient load in the wetland overtaxes the wetland's ability to take up nutrients. That does not necessarily mean that the nutrient load attributable to a wetland will be greater than the load attributable to other post-development land uses. Indeed, the only post-development land use characterized by Dr. Harper as having a lower pollutant load than a wetland was low- intensity commercial, and that was only for total nitrogen. (Dr. Harper's use of data from some distance away in Corkscrew Swamp as the basis for characterizing the pollutant loadings for
the onsite wetlands, instead of data from a closer monitoring station in the Cocohatchee Canal weir, was justified; his use of that data instead of collecting data onsite was a valid criticism, but there was not enough evidence in support of that criticism to undermine the additional assurance derived from Dr. Harper's work.) As for the argument that the "Harper method" makes it easier to obtain a permit to destroy wetlands, there are many regulatory criteria other than just water quality that are supposed to be considered before a permit is issued to impact wetlands.
Another component of Petitioner’s attack on the Project’s water quality compliance included vague references to an 80 percent removal efficiency. In actuality, the 80 percent removal efficiency is not adopted or incorporated into any District rule criteria. In any event, the Harper Report and other evidence give reasonable assurance that, along with other source controls, the proposed SWMS probably will remove 80 percent of pollutants on an average annual basis.
Lastly, the District clarified why Section 4.2.8 of the BOR, regarding cumulative impacts for water quality, was not applicable in this case. Since no contribution or impacts to water quality are expected, a cumulative impacts analysis is not necessary to assess the extent of the impacts.
The combination of all these water quality measures, when taken together, give reasonable assurance that the 2006 ERP will not adversely affect the quality of receiving waters such that State water quality standards will be violated, and that Rule 40E-4.301(1)(e) will be satisfied.
Engineering Principles (Rule 40E-4.301(1)(i))
Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS will be capable, based on generally-accepted engineering and scientific principles, of being performed and of functioning as proposed. Section 7.0 of the BOR specifies implementation of the Rule. Since WCS-1 and WCS-2 are proposed as operable structures, the District is requiring that G.L. Homes enter into an operable Control Structure Agreement with the Big Cypress Basin Board. The agreement provides for the Big Cypress Basin Board to operate and maintain the two operable structures, instead of the Saturnia Falls Homeowners Association. As Mr. Waterhouse explained, this is a reasonable and logical requirement. WETLAND ERP CRITERIA
As with the SWMS criteria, the wetland criteria review of this modification compares the Project to 2004 ERP.
Functions To Fish & Wildlife And Listed Species (Subsection 40E- 4.301(1)(d))
Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances to demonstrate that the construction, alteration, operation, maintenance, removal, or abandonment of a SWMS will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Section 4.2.2 of the BOR provides further specificity to ensure that a project will not impact the abundance and diversity of fish, wildlife and listed species. The 2006 ERP makes no changes or modification to the 280 acres of wetland impacts allowed in the 2004 ERP. Since the impacts remain the same, the 2006 ERP does not modify or affect the values the wetlands provide to either the abundance or diversity of fish and wildlife, compared to the 2004 ERP. Review of this criterion was determined in the 2004 ERP and should not be re- opened.
Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the Project’s wetlands. The wetland values were not reassessed in the 2006 ERP because the wetland impacts remain the same as in the 2004 ERP. The evidence was that the current value of the wetlands remains low due to heavy melaleuca infestation, with 75 percent coverage in most locations. While Petitioner may disagree with how the
current wetlands were evaluated, nothing in this modification request requires a reassessment of their value. Accordingly, the value of the wetlands currently onsite has not changed, and this criteria should not be re-opened.
Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod of wetlands or other surface waters.
Specifically, the criterion states as follows:
[An] applicant must provide reasonable assurances that the regulated activity will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions as follows:
Whenever portions of a system, such as constructed basins, structures, stormwater ponds, canals, and ditches, are reasonably expected to have the effect of reducing the depth, duration or frequency of inundation or saturation in a wetland or other surface water, the applicant must perform an analysis of the drawdown in water levels or diversion of water flows resulting from such activities and provide reasonable assurance that these drawdowns or diversions will not adversely impact the functions that wetlands and other surface waters provide to fish and wildlife and listed species.
Increasing the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters or by impounding water in wetlands or other surface waters must also be addressed to prevent adverse effects to functions that wetlands and other surface waters provide to fish and wildlife and listed species.
Different types of wetlands respond differently to increased depth, duration, or frequency of inundation. Therefore, the applicant must provide reasonable assurance that activities that have the potential to increase discharge or water levels will not adversely affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level.
Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to: monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions.
Subsection (a) applies if the Project was expected to reduce the depth, duration, or frequency of inundation or saturation in any of the Project’s wetlands. Subsection (b) applies if the Project is expected to increase the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes.
Persuasive engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Eastern Preserve will occur from what was permitted in the 2004
ERP. By analyzing the various biological indicators onsite, control elevations within the SWMS and the wetlands (both the Eastern Preserve and onsite preserve wetlands) were set at 13.4 feet NGVD, which is the WSWT. This matched the control elevation under the 2004 ERP. Ms. Bain and Mr. Passarella both testified that the hydroperiods in the wetlands would remain the same as in the 2004 ERP during normal conditions, the most important indicator of wetland success, and that the wetlands would be unaffected by the modifications.
The WSWT is a common indicator of average wet season water levels in a wetland, which generally is the best indicator of maintaining appropriate hydrology and thereby maintaining the expected level of wetland function. However, as indicated, the deep lakes next to preserved wetlands within the SWMS could draw down those wetlands during dry conditions; but the potential lake effect was present in the 2004 ERP.
Both Dr. Van Lent and Jason Lauritsen conceded that, with the elimination of the Flow-way, the hydrology in the Eastern Preserve would be better in the 2006 ERP than in the 2004 ERP. But, as indicated, there was no detailed analysis of wetland impacts from the 2006 modifications because G.L. Homes and the District took the position that no detailed analysis was necessary since the control elevation remained unchanged.
Petitioner attempts to cast doubt as to the level of data reviewed by the District to conclude that no changes will occur in the hydrology of the wetlands. But the additional modeling recommended by Petitioner is unnecessary and unwarranted in the face of the biological indicators collected from the Project site over several years. These biological indicators are reliable and customary information to use when ensuring compliance with Section 4.2.2.4. They also resulted in the same control elevation that was set in the 2004 ERP.
Petitioner never disputed the credibility of the biological indicators, nor did they present any contrary evidence (either a model or otherwise) that purported to show the wetlands would not function as permitted in the 2004 ERP based on these indicators. Instead, they simply asserted that additional analysis should be done.
Although not precipitated by this criterion, G.L. Homes will conduct monitoring of the wetlands by implementing the Monitoring Plan as additional reasonable assurances that the wetlands will not be affected.
Secondary Impacts To Water Resources (Subsection 40E- 4.301(1)(f))
Rule 40E-4.301(1)(f) and Section 4.2.7 of the BOR require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources. No
secondary impact analysis was done because the site plan and wetland impacts remained unchanged from the 2004 ERP.
Additional Wetland Provisions (Subsection 40E-4.301(3) and 40E- 4.302
Subsection 40E-4.301(3) addresses the remaining wetland criteria in the BOR, including mitigation and elimination or reduction of impacts. Rule 40E-4.302(1)(b) addresses the cumulative impacts analysis contained in Section
4.2.8 of the BOR.
No assessment of elimination and reduction of wetland impacts was done because the wetland impacts remain unchanged from the 2004 ERP. The 2006 modifications do not warrant another elimination and reduction analysis. No cumulative impacts analysis is necessary because, as in the 2004 ERP, all proposed mitigation for wetland impacts are within the same drainage basin (West Collier) as the impacts. Logically, if the mitigation proposed for the 2006 modifications fully offsets the wetland impacts, there will be no impacts to cumulate with others impacts of other development activities. On the other hand, if the mitigation does not fully offset the impacts, the application will be denied for that reason, without the need for a cumulative impacts analysis.
Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Both G.L.
Homes and the District took the position that, similar to the wetland impacts, the proposal for both onsite and offsite mitigation did not change from the 2004 ERP, and that no detailed analysis of the mitigation proposal, or comparison to wetland impacts, was required.
Indeed, the onsite mitigation proposal--which includes preservation, restoration of wetlands by removing melaleuca, and the creation of four shallow depressional areas for wood stork habitat--remains unchanged from the 2004 ERP, including the Grading and Planting Plan, the Monitoring Plan, and Mitigation, Monitoring and Maintenance Plan. It was proven that the Flow- way footprint never was considered to be either a wetland impact or a part of the mitigation proposal, and that its removal from the Eastern Preserve does not decrease the amount or the value of the mitigation. (Actually, its removal probably increases the value of the mitigation, but the amount of any such increase was not analyzed or quantified.) It also was proven that the onsite wetlands will not be adversely affected as a result of the 2006 modifications so as to decrease their mitigation value, as Petitioner contended.
Petitioner also raised the concern that the wetland mitigation within the SWMS would not function as permitted in the 2004 ERP due to the storage of the additional 50 percent within those wetlands, thereby affecting the mitigation
assessment. However, as already indicated, when the water reaches those internal wetland preserves, it will have been treated to Class III water quality standards. In addition, operationally, the water also would have been stored in those wetlands under the 2004 ERP; the only difference is that the 2006 modifications calculate and claim credit for the storage, which was not necessary or done for the 2004 ERP.
In addition to the onsite mitigation, G.L. Homes previously had been permitted to provide offsite mitigation in the form of a $1.26 million cash payment to the District. The payment was for the purchase, restoration, and enhancement of
154 acres of lands within the boundaries of the District’s environmental restoration project called CREW. Payment of cash for use by the District is addressed in Section 4.3.1.8 of the BOR. These types of offsite mitigation opportunities are referred to as a regional offsite mitigation areas or “ROMAs.” Unlike most mitigation banks, ROMAs, such as CREW, involve a land acquisition component and are owned and operated by the District.
G.L. Homes and the District take the position that, under Section 4.3.1.8 of the BOR, and the previous 2004 ERP,
G.L. Homes’ responsibilities ended when it paid the cash donation to the District. They take the position that the mitigation is unaffected by the modification, and that re-
opening of the offsite mitigation requirement is unwarranted. However, while the Staff Report characterizes the $1.26 million payment as "a substantial amount of up-front mitigation for the proposed wetland impacts," no land in CREW has been purchased as of yet. In addition, the evidence was that, as a result of the passage of time and market forces, it unlikely that 154 acres of land within CREW can be purchased, enhanced, and maintained with the funds paid to the District under the 2004 ERP. Indeed, for a number of reasons, including the lack of willing sellers to participate in the CREW ROMA, in 2004 the District stopped accepting payment of funds to purchase land in CREW as an acceptable form of mitigation for wetland impacts. As a result, it no longer can be said that the proposed mitigation package, which includes and relies on the use of the funds to purchase, enhance, and maintain 154 acres in CREW, fully offsets the proposed wetland impacts. (In addition, under Rule 40E- 4.331(2)(a), any new mitigation proposal would have to analyzed using the Uniform Mitigation Assessment Methodology, Rule 62- 345.100.) Finally, if the offsite mitigation outside the drainage basin is used, a cumulative impact analysis will be necessary.
Public Interest Test (Rule 40E-4.302(1)
In addition to complying with Rule 40E-4.301, since the Project is located in, on, or over wetlands, G.L. Homes must
also address the criteria contained in the Public Interest Test, Rule 40E-4.302 and Section 4.2.3 of the BOR, by demonstrating that the Project is not contrary to the public interest. (Since the Project is not within an OFW or does not significantly degrade an OFW, the higher standard of “clearly in the public interest” does not apply.) The District considers and balances the following seven factors in determining compliance with the test:
Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.);
93. G.L. Homes provided reasonable assurances that the Project will not cause any onsite or offsite flooding, nor will the Project cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria and the post-development peak rate of discharge does not exceed the allowable discharge rate. The Project is considered neutral as to this factor. However, it appears from the evidence that the 2002 ERP and the 2004 ERP viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding.
Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.);
94. As indicated, the Project proposes onsite mitigation which has not changed from the 2004 ERP, but passage of time and
market conditions have changed the offsite mitigation proposal. As a result, it no longer can be said based on the evidence in this case that the overall mitigation proposal offsets potential impacts to fish and wildlife, including wood stork habitat, even though the mitigation plan for the Eastern Preserve would improve wood stork habitat from its current melaleuca-infested condition. For these reasons, the Project cannot be considered positive as to this factor.
Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.);
95. The Project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the Project’s construction would result in harmful erosion or shoaling. The balance of the testimony pertaining to the flow of water in the Project indicated that it will not be adversely affected. Although there will be reduced discharge to the Eastern Preserve as a result of the 2006 modifications, the Project is considered neutral as to this factor. In contrast, it appears from the evidence that the 2002 ERP and the 2004 ERP would have viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding.
Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.);
96. The Project does not provide any fishing, recreational values, or marine productivity. Therefore, the Project is neutral as to this factor.
Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.);
97. The Project is permanent in nature and is considered neutral as to this factor because reasonable assurances have not been given that mitigation will fully offset the permanent wetland impacts.
Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.);
98. There are no significant archeological or historical resources that will be adversely affected by the Project. In addition, no new information was received by the District indicating that historical resources would be impacted. Therefore, the Project is considered neutral as to this factor.
The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.);
As found, reasonable assurance has not been given that the current condition and relative value of functions being performed by the areas affected by the Project will be fully
offset by mitigation. Therefore, the Project should be considered negative as to this factor.
On balance, the Project, overall, is negative when measured against these criteria. Accordingly, it must be determined that reasonable assurance has not been given that the Project, as a whole, is not contrary to the public interest.
CONCLUSIONS OF LAW JURISDICTION AND STANDING
DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.
Under Section 403.412(6), Florida Statutes:
Any Florida corporation not for profit which has at least 25 current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or
s. 120.57, provided that the Florida corporation not for profit was formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action.
It is concluded that use of virtually the identical statutory language is not mandatory for standing under this statute and that the Conservancy meets the requirements for standing under this statute.
Party status under Sections 120.569 and 120.57, Florida Statutes, also can be based on proof that "substantial interests will be affected by proposed agency action."
§ 120.52(12)(b), Fla. Stat. This requires proof of "an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected" by the substantive law.
§ 403.412(5), Fla. Stat. See also Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). An organization like the Conservancy may allege and prove either that its own substantial interests or those of a substantial number of its members will be affected. See Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); Farmworker Rights Organization, Inc. v. Dept. of Health, etc., 417 So. 2d 753 (Fla. 1st DCA 1982). In addition, Section 403.412(5), Florida Statutes, provides:
No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner's use or enjoyment of air, water, or natural resources protected by this chapter.
The Conservancy made a sufficient demonstration under this statute that the proposed 2006 ERP will affect its use or enjoyment of water and natural resources protected by Chapter
403. As a result, the Conservancy also proved standing under Sections 120.569 and 120.57, Florida Statutes.
Because the Conservancy has "citizen standing" under Section 403.412(6), Florida Statutes, as well as standing under Sections 120.569 and 120.57, Florida Statutes, it is not necessary to decide G.L. Homes' challenge to the Conservancy's "associational standing."
It also is unnecessary and premature to determine whether any party would be entitled under Section 120.68(1), Florida Statutes, to judicial review of the final order entered in this case as "a party who is adversely affected." It is believed that such a determination, if it becomes necessary, can be made upon the evidence in the record.
BURDENS OF PROOF AND PERSUASION
This is a de novo proceeding designed to formulate final agency action. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981); and § 120.57(1)(k), Fla. Stat. As an ERP applicant, G.L. Homes has the ultimate burden of proof and burden of persuasion. See J.W.C. Company, Inc., 396 So. 2d at 786-789. In light of the evidence presented in this case, the option suggested in the
J.W.C. case to shift the burden of presenting evidence was not useful.
ERP CRITERIA
The permitting criteria for G.L. Homes' proposed Project are found in Parts I and IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-345, Florida Administrative Code Rules 40E-4.301 and 40E-4.302, and the BOR, which is adopted by reference in Rule 40E-4.091(1)(a). For its proposed Project to be permitted, G.L. Homes must give reasonable assurance of compliance with those criteria. Issuance of an ERP must be based solely on compliance with applicable permit criteria. See Council of the Lower Keys v.
Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983).
Reasonable assurance contemplates a substantial likelihood that the project will be successfully implemented. See Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian
Trace Community Development District, et al., DOAH Case No. 91- 6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD
1992); Manasota-88, Inc. v. Agrico Chemical Co. and Department of Environmental Regulation, DOAH Case No. 87-2433, 1990 Fla. ENV LEXIS 38 (DOAH Jan. 5, 1990; DER Feb. 19, 1990).
The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification met the applicable conditions for issuance. When a permittee seeks to modify an existing permit, the District’s review includes only that portion of the existing permit that is proposed to be modified or is affected by the modification. Fla. Admin. Code
R. 40E-4.331(2). See also Friends of the Everglades, Inc., v.
Dep't. of Envt'l. Reg., 496 So. 2d 181, 183 (Fla. 1st DCA 1986); Behrens v. Boran, ORDER NO. SWF 02-052, ER FALR 257 (SWFWMD Aug. 27, 2002), DOAH Case No. 02-0282, 2002 Fla. ENV LEXIS 192 (DOAH
July 29, 2002); Kunnen v. Southwest Fla. Water Mgmt. Dist., ORDER NO.: SWF 02-003, DOAH Case No. 01-2571, 2002 Fla. ENV LEXIS 4 (DOAH Dec. 17, 2001; SWFWMD Jan. 29, 2002). The
"reasonable assurance" requirement applies to the activities for which permitting is presently sought and, except to the extent affected by the proposed modification, does not burden the applicant with "providing 'reasonable assurances' anew with respect to the original permit." Friends of the Everglades, supra at 183. Accordingly, Petitioner’s arguments that certain criteria must be revisited because they were not properly addressed in previous permits is irrelevant to this proceeding; but previously-decided criteria must be reviewed again to the extent that proposed modifications affect those criteria.
CONSIDERATION OF THE ERP CRITERIA
In order to provide reasonable assurances that a Project will not be harmful to the water resources of the District, the applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. In this case, the evidence must be viewed under the rule pertaining to modification of permits. Rule 40E-4.331(2)(a) requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” Surface Water Management Criteria
Water Quantity and Flooding
Rule 40E-4.301(1)(a) and (b) address adverse water quantity to receiving water bodies and flooding either onsite and offsite. As found, G.L. Homes complied with the applicable criteria to satisfy both of these rules.
Storage and Conveyance
Rule 40E-4.301(1)(c) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact storage and conveyance capabilities. As found, the submittal of the Taylor Report provides reasonable assurances that the Project will not adversely affect the conveyance of water. Moreover, although some criticism was aimed at the choice of the friction coefficients used in the Taylor Report, the evidence as
a whole proves that the coefficients in the Taylor Report are reasonable and scientifically defensible.
Water Quality
Rule 40E-4.301(1)(e) requires G.L. Homes to provide reasonable assurances that the Project will not result in adverse water quality impacts. As found, coupled with the clarifications/additions to the USMP suggested by Dr. Harper and accepted by G.L. Homes, the numerous water quality submittals demonstrated compliance with this Rule, including assurances regarding the impairment status of the Cocohatchee Canal. While Petitioner leveled numerous criticisms against the Project’s ability to comply with water quality, none of the criticisms rose to the level of “contrary evidence of equivalent quality.” Taken as whole, and balanced against Petitioner’s lack of equivalent evidence and credible witnesses, the preponderance of the evidence demonstrates that, with the Monitoring Plan additions/clarifications, G.L. Homes meets the District’s water quality criteria.
Engineering Principles
As required by Rule 40E-4.301(1)(i), G.L. Homes has provided reasonable assurances to demonstrate that the SWMS will be capable, based on generally accepted engineering and scientific principles, of being performed and functioning as proposed.
Wetlands Criteria
Elimination and Reduction, Secondary and Cumulative Impacts
115. Rules 40E-4.301(1)(f) and (2) and 40E-4.302(1)(b)
require G.L. Homes to demonstrate compliance with the following District criteria pertaining to wetland impacts: (1) elimination and reduction; (2) secondary impacts; and (3) cumulative impacts. As found, the 2006 ERP proposes no changes or modifications to the wetlands impacts approved in the 2004 ERP. Therefore, Petitioner’s arguments that these assessments were either not done or done improperly in the previous permit are not valid bases to relitigate those issues. Accordingly, elimination and reduction, secondary impacts, and cumulative impacts addressed in the 2004 ERP are not properly litigated in this modification proceeding, except to the extent that they are affected by the proposed modifications. While the proposed modifications do not affect either elimination and reduction or secondary impacts, they could affect cumulative impacts, depending on whether offset mitigation needed to fully offset wetland impacts is accomplished in the West Collier drainage basin.
Wetland Values and Functions to Fish and Wildlife
Rule 40E-4.301(1)(d) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact the value and functions provided to fish and wildlife and listed
species by wetlands. Rule 40E-4.301(3) requires an applicant to comply with the District’s mitigation provisions in the BOR. As found, Petitioner’s contention that the revised SWMS affected the values and functions provided to fish and wildlife, particularly the wood stork, was not supported by the weight of the evidence as to onsite mitigation. However, the passage of time and market conditions affected the offsite mitigation proposed and presumably evaluated for the 2004 ERP, and the impacts and mitigation were not re-evaluated for the 2006 ERP. Under Rule 40E-4.331(2), they must be re-evaluated using UMAM, as required by Rule 62-345.100.
Public Interest Test
The public interest test is limited in scope to only the seven factors set forth in Rule 40E-4.302(2). As found above, after a balancing of the factors, reasonable assurance was not provided that the Project is not contrary to the Public Interest.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the proposed 2006 ERP be denied. If it is granted, it should include the additions/clarifications to the USMP suggested by Dr. Harper and accepted by G.L. Homes.
DONE AND ENTERED this 15th day of May, 2007, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2007.
ENDNOTES
1/ All statutory references are to the 2006 codification of the Florida Statutes.
2/ Part I, Chapter 373, Florida Statutes; Part IV, Chapter 373, Florida Statutes; Florida Administrative Code Rule Chapters 40E-
1 and 40E-4, and the Basis of Review (BOR) (February 12, 2006). (All references to Rules will be to the versions in effect at the conclusion of the hearing.)
3/ Not all parts of Respondents' Joint Exhibits 9, 10, and 13, as identified in the Pre-Hearing Stipulation, were received in evidence. See 2/27/07 Transcript, pages 159-162.
4/ Dry Season assumes an entire calendar year of discharges to the East through WCS-2.
5/ Wet Season assumes an entire calendar year of discharges to the West through WCS-1.
COPIES FURNISHED:
Carol Ann Wehle, Executive Director South Florida Water Management
District
3301 Gun Club Road
West Palm Beach, Florida 33416-4680
Frank E. Matthews, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32314-6526
Luna E. Phillips, Esquire South Florida Water Management
District
3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007
Gary Davis, Esquire Post Office Box 649
Hot Springs, North Carolina 28743-0649
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 |
|---|---|---|
| Jul. 12, 2007 | Agency Final Order | |
| May 15, 2007 | Recommended Order | Recommend denial of modification to the Environmental Resource Permit because offsite mitigation no longer fully offsets wetland impacts. |
