STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. OCTAVIO BLANCO, )
)
Petitioner, )
)
vs. ) Case No. 07-3945
)
WIN-SUNCOAST, LTD. and )
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on January 14-17, 2008.
APPEARANCES
For Petitioner: Marcy I. LaHart
Law Offices of Marcy LaHart, Esquire 711 Talladega Street
West Palm Beach, Florida 33405
Renee A. Reed Collins & West, P.A.
435 First Street North Winter Haven, Florida 33881
For Respondent Win-Suncoast, Ltd.:
David Smolker Margaret M. Craig
Bricklemyer, Smolker & Bolves, P.A.
500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602
For Respondent Southwest Florida Water Management District:
Jack Rouss Pepper, Jr. Deputy General Counsel Jason L. Smith
Staff Attorney Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604 STATEMENT OF THE ISSUE
The issue is whether Respondent Win-Suncoast, Ltd., is entitled to an individual environmental resource permit to construct a surface water management system to serve a proposed shopping center.
PRELIMINARY STATEMENT
By application filed April 26, 2006, Respondent Win- Suncoast, Ltd. (Applicant), requested Respondent Southwest Florida Water Management District (District) to issue an individual environmental resource permit (ERP) for the construction of a new surface water management system to serve a commercial development anchored by a shopping center at a
36.7-acre site located in south Pasco County.
By notice of proposed agency action dated July 27, 2007, District informed Applicant, with a copy of the letter to Petitioner Dr. Octavio Blanco (Petitioner), that it was recommending to the Board, at its August 28 meeting, that it issue the ERP.
On August 22, 2007, Petitioner filed with District a Request for Administrative Hearing. District transmitted the file to the Division of Administrative Hearings on August 29, 2007.
The Request for Administrative Hearing alleges that Petitioner owns an interest in the real property directly adjacent to the real property that is the subject of the proposed ERP and that Petitioner's property would be adversely affected by the construction and operation of the proposed surface water management system. The Request for Administrative Hearing states that Petitioner would be substantially affected by the proposed activities because they would adversely impact the function of wetlands and surface waters in the immediate vicinity of his property, and Petitioner enjoys observing fish and wildlife that use the wetlands on and adjacent to his property.
The Request for Administrative Hearing states that the proposed permit would authorize the destruction of 3.1 acres of forested wetlands, the temporary destruction of 1.4 acres of wetlands, and the creation of most of the mitigation on sites located miles from the proposed impacts.
The Request for Administrative Hearing identifies as factual issues the questions of whether Applicant has reduced and eliminated wetland impacts to the extent practicable, the
proposed mitigation offsets the wetland impacts, the proposed project will cause adverse impacts to the storage and conveyance capabilities of surface waters, the proposed project will adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, the proposed project will cause adverse secondary impacts, the proposed project will cause adverse water quality impacts to receiving waters, the proposed project will cause unacceptable cumulative impacts, the operation of the surface water management system will sufficiently treat runoff to meet water quality standards for nutrients, and the project is contrary to the public interest.
The Request for Administrative Hearing states that the proposed permit violates Sections 373.413(1), 373.414, and 373.416, Florida Statutes; Florida Administrative Code Rules 40D-4.301(1) and 40D-4.302; and District's Basis of Review (BOR) Sections 3.2.1, 3.2.4.2(c), and 3.2.7.
On August 29, 2007, the Division of Administrative Hearings issued an Initial Order requiring the parties to file a statement containing, among other things, all dates between 30 and 70 days from the date of the Initial Order on which they would be available to attend the final hearing. The 70th day was November 7, 2007.
On September 5, 2007, the parties filed a Joint Response to Initial Order that identified several sets of three-day periods in late October and early November for the final hearing. The latest date proffered was November 5, so all dates conformed to the timeframe set forth in the Initial Order.
On September 7, 2007, the Administrative Law Judge set the case for final hearing for October 31 to November 2, 2007. On the same date, the Administrative Law Judge issued an Order of Pre-Hearing Instructions requiring the parties, 15 days before the final hearing, to prepare a joint stipulation, which was due to be filed by October 26, 2007.
On September 6, 2007, Applicant filed a Motion to Expedite Discovery, asking the Administrative Law Judge to reduce to 14 days the time for Petitioner to respond to requests for documents and interrogatories. The motion notes that Applicant has suffered monetary losses from the delay in its project necessitated by Petitioner's challenge to the proposed ERP. The motion states that Petitioner opposes the motion and District takes no position.
By Order entered September 11, 2007, the Administrative Law Judge granted the Motion to Expedite Discovery, although the 14 days ran from the date of the Order, not the motion.
On September 20, 2007, Petitioner filed a Motion for Continuance. The motion states that the experts sought to be
retained by Petitioner could not prepare for a final hearing starting October 31 due to the complexity of the issues involving avoidance of wetland impacts, cumulative wetland impacts, wetlands mitigation, and exacerbation of offsite flooding. The motion requests a continuance until December or January to give Petitioner a fair opportunity to prepare for and present his case. The motion states that Applicant opposes the motion and District takes no position.
On September 21, 2007, Applicant filed its Objection to Petitioner's Motion for Continuance. The response states that the file materials submitted by Applicant to District in support of its application had been available for the year that the application was pending at the District prior to the issuance of the proposed ERP. The response states that Petitioner had twice challenged a proposed ERP for an adjacent parcel: Blanco v.
Southwest Florida Water Management District, DOAH Case No.
04-0003 (Blanco I) and Blanco v. Westfield Homes of Florida and Southwest Florida Water Management District, DOAH Case No.
05-3274 (Blanco II). The response contends that Petitioner was thus familiar with the demands of environmental litigation and relevant characteristics of the area of the proposed activities. The response also states that the major tenant of the proposed commercial project had advised Applicant that its project could
be jeopardized if Applicant could not begin construction by February 2008.
By Order dated October 2, 2007, the Administrative Law Judge denied the Motion for Continuance.
On September 26, 2007, Applicant filed a Request for Official Recognition of various statutes and rules, the BOR, and the District final orders in Blanco I (SWF 05-02) and Blanco II (SWF 06-36). By Order dated October 15, 2007, the Administrative Law Judge granted the unopposed Request for Official Recognition.
On October 5, 2007, Petitioner filed a Request for Rehearing on the denied motion for continuance. The ground was an alleged misstatement by Applicant as to the status of other permits that it needs to proceed with construction. On
October 10, 2007, the Administrative Law Judge denied the Request for Rehearing.
On October 15, 2007, counsel for Petitioner filed a Motion to Withdraw as Counsel for Petitioner Dr. Blanco. Noting that she is in solo practice, counsel stated that she had two two-day trials, one due to start on October 29 and one due to start on November 13. The motion states that counsel could not prepare adequately for a final hearing in the subject case scheduled to start on October 29, two expert witnesses had dropped out of the case due to inadequate time to prepare, and counsel had been
unable to find substitutes for them. The motion states that Applicant opposes the motion.
On October 16, 2007, Applicant filed an Objection to Marcy LaHart's Motion to Withdraw as Counsel for Petitioner. The objection restates the financial losses that Applicant faces if the project does not go forward by February 2008, that
Ms. LaHart had no direct conflict with the then-scheduled hearing dates, and, even if she were allowed to withdraw, Petitioner had sufficient experience to represent himself, so that the final hearing would not have to be continued.
The Administrative Law Judge conducted a motion hearing on October 16, 2007. The resulting Order, which was entered two days later, memorializes a ruling that continued the final hearing to December 3-5, 2007, and the withdrawal of the motion to withdraw. The Order adds that, unless otherwise agreed to by the parties, all depositions shall be completed by November 21, 2007, and "any experts not disclosing all opinions during depositions may be precluded from giving additional opinions during the final hearing if there is a timely objection." The Order extends the deadline for filing the prehearing stipulation to November 29, 2007.
On November 6, 2007, Applicant filed two motions in limine.
One motion seeks an order excluding certain evidence, and the
other motion seeks an order deeming that certain matters have been established.
The first motion states that, despite having obtained an extension of time to do so, Petitioner had still failed to respond to an interrogatory requesting the disclosure of witnesses and their opinions. The first motion asks for an order prohibiting Petitioner from presenting any expert witnesses who had not already been disclosed and any expert opinions that had not already been disclosed. The first motion states that Petitioner opposes the motion and District takes no position.
The second motion states that, in Blanco I, District issued, in November 2003, a proposed agency action to issue an ERP in connection with a development of a residential subdivision to be served by an access road across Applicant's property that is the subject of this case. The second motion states that the ERP covered wetland impacts on Applicant's property and wetland mitigation for the impacts of both projects. The second motion states that Petitioner requested a hearing, and, after a three-day hearing, the final order in Blanco I denied the ERP for two reasons.
The second motion states that the applicant in Blanco I
amended its application to address the two deficiencies cited in the final order, but these amendments did not change the access
road over Applicant's property, the wetland impacts (presumably on Applicant's property), and the wetland mitigation (presumably of the wetland impacts on Applicant's property). The second motion states that, on July 25, 2005, District issued a notice of proposed agency action to issue an ERP in connection with the amended development plan. The second motion states that Petitioner requested a hearing and, after a two-day hearing, the final order granted the requested ERP. On April 27, 2007, the Second District Court of Appeal affirmed, per curiam, the final order.
The second motion argues that, under collateral estoppel, Petitioner should be precluded from relitigating the following issues: the character and function of an isolated cypress wetland known as Wetland B12 (which is on Applicant's property, but was covered in the earlier cases), whether the impacts to Wetland B12 were avoidable, whether the alignment of the access road eliminated and reduced the impacts to Wetland B12 to the extent practicable, and the adequacy of the wildlife studies that included the wetlands on Applicant's property. The second motion concludes with a request that the Administrative Law Judge in the present case find: 1) "Wetland B12 is a low- quality, small (0.58 acres), isolated, forested wetland that has been impacted by dewatering, livestock grazing and the intrusion of exotic species"; 2) "Wetland B12 does not provide suitable
habitat for listed species"; 3) "Wetland B12 is exempt from the District's fish and wildlife review because it is a small isolated wetland"; 4) "The impact to Wetland B12 is unavoidable"; 5) "The access road through the Win-Suncoast property avoided and minimized [i.e., eliminated and reduced] wetland impacts to the extent practicable"; and 6) "The wildlife studies conducted of the wetlands on the Win-Suncoast property are adequate."
On November 15, 2007, Petitioner filed a Motion to Continue. The motion states that the omission of a node diagram from a file provided to a potential expert witness, a professional engineer named Bruce McArthur, prevented
Mr. McArthur from timely preparing an expert opinion in time for a deposition in late October. (At this time, the final hearing was still set to begin on October 31.) The motion states that Petitioner obtained the missing node diagram on November 8, but Mr. McArthur's schedule would not permit him to participate as an expert witness until late January. The motion states that Petitioner had found another stormwater expert, Dr. Mark Ross, but he could not be available to testify until December 17. The motion states that Applicant and District oppose the motion.
On November 20, 2007, Applicant filed an Objection to Petitioner's Motion for Continuance. The objection states that, on November 7, Petitioner filed a supplemental response to an
interrogatory naming three experts: Dr. Mark Rains, Dr. Bart Baca, and Mr. Michael McElveen. The objection states that Applicant had already deposed the first two experts and had scheduled the deposition of the third expert. The objection complains that Petitioner never identified either Mr. McArthur or Dr. Ross, even though Petitioner had mentioned Dr. Ross as a possible expert witness at Petitioner's deposition on October 8.
On November 21, 2007, District filed an Objection to Petitioner's Motion for Continuance. The grounds were the untimely disclosure of either Mr. McArthur or Dr. Ross and the availability of the node diagram at all times in the District file.
By Order on Motions dated November 27, 2007, the Administrative Law Judge denied the Motion for Continuance due to the untimely disclosure of either Mr. McArthur or Dr. Ross. The Administrative Law Judge declined to rule on the first motion in limine due to the lack of necessity. The Order notes the earlier rulings requiring the previous disclosure of expert witnesses and their opinions. The Administrative Law Judge granted the second motion in limine, noting that Applicant was in privity with the developer of the residential subdivision and Petitioner had failed to file a response to the motion.
The next day, Petitioner filed a Request for Reconsideration Regarding Respondent's Motion in Limine. The
request pertains to the second motion in limine and argues that Applicant was not a party to Blanco II, which did not address the details of construction of Applicant's project. The motion states that the parcel that had been the subject of Blanko II had been sold, and the new owner had applied for a permit to construct an office complex, rather than the already-permitted residential subdivision. The motion cites case law suggesting that Applicant was not in privity with the applicant in Blanco II because it would not be bound by the final order in that case. As to Wetland B12, which is on Applicant's site, the motion notes that any mitigation would not be constructed due to the abandonment of the development permitted in Blanco II.
On November 30, 2007, Applicant filed an Emergency Motion to Bifurcate or in the Alternative Motion to Continue Hearing. The motion notes the discovery of new opinions on economic feasibility during the deposition of Petitioner's expert witness, Mr. McElveen, and asks either that this issue be tried separately, or the entire hearing be postponed. The motion states that Petitioner does not oppose a continuance, but opposes a bifurcation, and District takes no position.
By Order entered December 3, 2007, the Administrative Law Judge granted the motion to continue and prohibited further discovery, except for an exhibit to be filed by Applicant in
response to Mr. McElveen's testimony. The Order prohibited any amendments of exhibit or witness lists.
On December 5, 2007, Applicant filed a Response to Petitioner's Request for Reconsideration Regarding Respondent's Motion in Limine. The response notes that Applicant had a co- development agreement with the developer/applicant in Blanco II
for the construction of the access road and has such an agreement with the current owner of the tract.
On December 6, 2007, Petitioner filed his Request for Reconsideration of the Exclusion of Dr. Mark Ross, Ph.D. The request asks that Petitioner be allowed to add Dr. Ross as a stormwater expert witness.
On December 10, 2007, the Administrative Law Judge issued a Notice of Hearing stating that the hearing would take place January 15-17, 2008.
On December 11, 2007, Applicant filed a Response to Petitioner's Request for Reconsideration of the Exclusion of Dr. Mark Ross, Ph.D. The response argues that allowing Petitioner to add Dr. Ross at this late stage would be prejudicial to Applicant. Two days later, District filed a Response in Opposition to Petitioner's Request for Reconsideration Regarding Exclusion of Dr. Mark Ross. The response notes that Petitioner had not yet identified a particular stormwater issue in the proposed permit.
By Order dated December 17, 2007, the Administrative Law Judge denied Petitioner's Request for Reconsideration Regarding Exclusion of Dr. Mark Ross, Ph.D. By Order dated December 31, 2007, the Administrative Law Judge denied Petitioner's Request for Reconsideration Regarding Respondent's Motion in Limine.
Shortly prior to the start of the hearing, the undersigned Administrative Law Judge assumed responsibility for the case.
The final hearing took place, as scheduled, on January 15-17, 2008.
At the hearing, Applicant called five witnesses and offered into evidence 19 exhibits: Applicant Exhibits 1-19. District called two witnesses and offered into evidence six exhibits: District Exhibits 1-6. Petitioner called eight witnesses and offered into evidence nine exhibits: Petitioner Exhibits 1-9.
All exhibits were admitted.
The court reporter filed the transcript on January 18, 2008. Respondents filed a Joint Proposed Recommended Orders on January 28, 2008.
On January 29, 2008, Applicant filed a Motion to Strike.
On February 5, 2008, Petitioner filed a response. The Motion to Strike is denied for the reasons set forth in the Conclusions of Law.
FINDINGS OF FACT
On April 25, 2006, Applicant filed with District an application for an individual ERP to construct a surface water management system on a parcel located in south Pasco County on the north side of State Road 54, about 1000 feet east of the right-of-way of the Suncoast Parkway. The proposed surface water management system would serve the commercial development of the now-vacant, 36.7-acre parcel.
State Road 54 runs from State Road 19 near New Port Richey to Interstate 75; at the Suncoast Parkway, State Road 54 is six lanes wide. The Suncoast Parkway is a limited-access toll road that runs from Memorial Parkway in Tampa to U.S. Route
98 north of Brooksville. The subject parcel is about one mile north of Hillsborough County, four miles east of the terminus of Gunn Highway at State Road 54, and five miles west of State Road
The vicinity of this intersection is experiencing rapid commercial development and escalating land values, mostly since the completion of the Suncoast Parkway in 2001.
Three parcels adjoin the subject parcel. Immediately north of the subject parcel is the Ashley Glen parcel, which consists of 266.36 acres. Immediately west of the subject parcel and the Ashley Glen parcel is the parcel owned by Petitioner. Petitioner's parcel has about 700 feet of frontage on State Road 54 and runs the length of the western borders of
the subject parcel and the Ashley Glen parcel. The northern border of Petitioner's parcel and the Ashley Glen parcel is an abandoned railroad grade. Immediately east of the subject parcel is a DOT-owned parcel, which serves as floodplain mitigation, probably in connection with the Suncoast Parkway or State Road 54.
Petitioner challenged the issuance of an ERP in two administrative cases involving the Ashley Glen parcel. In the Blanco I final order, which is dated January 25, 2005, the District denied an ERP for a surface water management system to serve the development of a residential subdivision of over 400 lots. The ERP was denied due to the applicant's failure to conduct an appropriate wildlife survey and to account for the effect of a newly excavated 37-acre borrow pit/pond on a large forested wetland partly occupying a large area on the north end of Petitioner's property.
After the developer submitted a revised application, Petitioner challenged the ERP that District proposed to issue. After an administrative hearing, District granted an ERP in the Blanco II final order, which is dated May 30, 2006. Significant differences in the second application were that the applicant had reduced the maximum depth of the borrow pit/pond from 25 feet to 12 feet, under most circumstances, and that the applicant had obtained an appropriate wildlife survey.
The subject parcel is about 1.5 miles south of a large tract proposed for acquisition by District and known as the Masaryktown Canal area. This tract would join the smaller Starkey tract, which is also owned by District, with another somewhat smaller publicly owned tract to place much of central Pasco County, from Hillsborough County to Hernando County, in public ownership. Water from the subject parcel drains north toward central Pasco County and then into the Anclote River.
The record is in conflict as to the drainage basin in which the subject parcel is located. According to BOR
Appendix 6, which is dated May 2, 2006, the subject parcel is in the southern end of the Upper Coastal Drainage basin, which is a vast basin that stretches down the Gulf coast from north of Crystal River to the southern tip of Pinellas County. At points, this basin is not wide, such as at the southern tip of Pinellas County, where, just a few miles inland, the Tampa Bay Drainage basin begins. At other places, the Upper Coastal Drainage basin extends considerably inland, such as at the Pasco County--Hernando County line, where the basin extends about 25 miles east from the Gulf coast, ending only five miles west of the Withlacoochee River.
According to District Exhibit 5, which is the District Land Acquisition Priorities Map issued in December 2004, the subject parcel is in the Tampa Bay/Anclote River Watershed. On
this map, a large, unnamed watershed, corresponding roughly to the Upper Coastal Drainage basin in BOR Appendix 6, runs to the north of the subject parcel's watershed.
At the hearing, District explained that the boundaries shown on District Exhibit 5 identify political subdivisions.
The "basins," which are marked in green letters, appear to be political subdivisions, judging from their straight lines, which suggest political, not natural, boundaries. However, the "watersheds," which are marked in larger blue letters, are actual drainage basins. Applicant's ecologist initially believed that the subject parcel was in the Hillsborough watershed. Also, the basin map shown on the District website, District depicts the subject parcel's basin (here named the "Pinellas--Anclote River Basin") as that south of the large basin (here named the "Coastal Basin") encompassing almost the entire coast within the northern area of District's jurisdiction1.
Factually, the stronger evidence places the subject parcel in a basin to the south of the large coastal basin described in the preceding paragraphs. However, for the reasons discussed in the Conclusions of Law, the basin depicted in BOR Appendix 6 governs.
Although not yet constructed, an important feature of the subject parcel is a road to be known as Ashley Glen Road.
This road will nearly bisect the property and will run north from State Road 54 through the Ashley Glen parcel. The road is likely to be developed because it has already been permitted, is subject to a co-developers' agreement, and has already been dedicated to Pasco County.
The developer in Blanco I and Blanco II has since sold the Ashley Glen parcel to another developer, which has substantially changed the original plan of development. The new developer has obtained a Development of Regional Impact approval for the development of 1.8 million square feet of office, 450,000 square feet of retail, and 900 multifamily units. However, the new development will incorporate Ashley Glen Road. (For ease of reference, this recommended order continues to use the name, "Ashley Glen" to refer to the parcel, development, and road, although new names may attach to each.)
At present, the subject parcel conveys stormwater from south to north. Running along the eastern edge of the parcel is a 20-foot-wide ditch that receives water, by way of a culvert under State Road 54, from the extensive wetland system known as the Hogan wetland, which lies to the south of State Road 54.
The ditch was dredged (or re-dredged) about 50 years ago. From south to north, the ditch runs straight in a north-northwesterly direction to about midpoint on the subject parcel, at which point the ditch turns due north and runs in nearly a straight
line into and along the eastern part of the Ashley Glen parcel to the north. The northern part of the Ashley Glen parcel widens in an easterly direction, so the ditch bisects this part of the Ashley Glen parcel, prior to turning to the northwest for a short run to the railroad grade.
There are two wetlands presently on the subject parcel. In the southeast corner is an isolated wetland known as Wetland B12, which has been described above. The ERP approved in Blanco II authorizes the filling of this entire wetland, whose eastern third would be occupied by Ashley Glen Road. The Blanco II final order determines that Wetland B12 is a
"low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species." (Recommended Order, paragraph 11.)
The Ashley Glen developer originally intended to create on its property an 18-acre littoral shelf to mitigate wetland losses, including the loss of Wetland B12. However, the sale of the Ashley Glen parcel and adoption of a new development plan have delayed the creation of the littoral shelf. Applicant has thus proposed new mitigation in the form of a mitigation bank credit for the impact to Wetland B12. By this means, Applicant seeks permission to fill the wetland and proceed with development without waiting for the new Ashley Glen developer to create the mitigation for Wetland B12.
Although the already-permitted loss of Wetland B12 is not an issue in this case, the mitigation for its loss is an issue. Because Applicant is proposing new mitigation for the loss of Wetland B12, it is necessary to determine whether Applicant, using the methodology adopted by District, has provided reasonable assurance that the functional gain from the proposed mitigation for Wetland B12 offsets the functional loss from its filling.
The other wetland on the subject parcel is Wetland C12, which is a nine-acre contiguous wetland. The final order resulting from Blanco II authorizes no impact to Wetland C12, so its loss and the mitigation for the loss are issues in this case.
The subject application proposes no impact to 4.5 acres of Wetland C12, permanent loss of 3.1 acres, and temporary loss of 1.4 acres (due to the realignment of part of the ditch, which is within Wetland C12). The part of Wetland C12 proposed to be destroyed is its southernmost one-third, which lies in the southern half of the subject parcel, immediately west of the west bank of the realigned ditch.
Wetland C12 forms part of the conveyance, from south to north, of water from the Hogan wetland to the railroad grade at the northern boundary of the Ashley Glen parcel. Stormwater then accumulates against the railroad grade, runs west along the
grade, backs up to contribute hydration to the large forested wetland at the northwest corner of the Ashley Glen parcel and the north half of Petitioner's parcel, and passes under the railroad grade by way of three culverts near the northwest corner of the Ashley Glen parcel.
Wetland C12 has been disturbed by agricultural activities, mostly by the formation of the ditch. There is some testimony concerning a stream at this location, but the record does not support such a characterization. Based on the present record, prior to any disturbance, it is equally possible that water was conveyed by a stream, a slough, or sheetflow. For these reasons, the record does not permit a finding that the ditch is a restorable stream.
Wetland C12 has little buffer from surrounding land cover and agricultural uses. According to Petitioner's testimony, which is credited, the dredging (or re-dredging) 50 years ago was the work of a nearby landowner who owned a dragline and used it to alleviate flooding near the Hogan wetland, presumably by deepening and widening the ditch. The hydrology of Wetland C12 has been altered, so that nuisance exotics and upland species are present at locations within the wetland, presumably including the portions of the banks hosting large spoil piles from past dredging. No listed species use Wetland C12, and its potential as habitat corridor is limited
due to the extensive residential development that has taken place immediately to the west of Wetland C12, the extensive residential and commercial development taking place to the east of Wetland C12, and the barriers posed by the Suncoast Parkway and 280-foot right-of-way of State Road 54.
Applicant has presented to District a plan to construct nine freestanding buildings with surface parking on the subject parcel. The plan is to construct, from north to south on the west side of Ashley Glen Road, a retail space of 5000 square feet and 75 parking spaces on 1.17 acres, a strip of nine retail spaces of 10,500 square feet and 61 parking spaces on 2.02 acres, a fast-food restaurant of 3800 square feet and 40 parking spaces on 1.02 acres, a convenience/retail store of 6000 square feet and 44 parking spaces on 1.66 acres, a fast-food restaurant of 3000 square feet and 44 parking spaces on 1.22 acres, and a bank of 4300 square feet and 38 parking spaces on
0.95 acres. On the east side of Ashley Glen Road, the plan is to construct, from south to north, a restaurant of 4700 square feet and 67 parking spaces on 1.19 acres, a bank of 4120 square feet and 43 parking spaces on 1.16 acres, and a supermarket complex.
The supermarket complex comprises a supermarket, an attached strip identified as "Retail B," a restaurant abutting Retail B, an attached strip identified as "Retail C," and a
restaurant abutting Retail C. The supermarket building is 237 feet by 205 feet and houses a 46,755 square-foot grocery store, and 1876 square-foot liquor store, and 1125 square-foot vestibule; the supermarket building is served by 243 spaces.
Retail B comprises six retail spaces of 6500 square feet and 33 parking spaces; the restaurant is 3000 square feet and is allocated 34 parking spaces. Retail C comprises four retail spaces of 5600 square feet and 28 spaces; the restaurant is 3600 square feet and is allocated 40 parking spaces.
The previously described bank and restaurant on the east side of Ashley Glen Road front State Road 54. Behind the drive-through lanes of the bank and parking of the restaurant are nearly all of the parking allocated to the supermarket complex. The supermarket faces State Road 54, although it is about 500 feet from the road and is located in the middle of the eastern half of the subject parcel. The liquor store is incorporated into the southwest corner of the supermarket building, which has a truck dock at the northwest corner. Running in a north-south direction, Retail B runs along the entire west side of the supermarket building. A strip of 40 parking spaces separates Retail B from Ashley Glen Road.
Retail C is oriented perpendicular to Retail B and extends, in an east-west direction, off the southeast corner of the supermarket building.
Wetland C12 would be occupied by the footprint of the eastern half to two-thirds of the supermarket building, half of the parking in front of the supermarket, half of Retail Strip C, and almost half of the restaurant fronting State Road 54 on the east side of Ashley Glen Road. In terms of area, the footprint of the supermarket and parking occupies about two-thirds of the
3.1 acres of Wetland C12 proposed to be permanently lost.
Several components make up the proposed surface water management system, in addition to the rooftops and paving described above. Applicant proposes to realign a portion of the ditch running within Wetland C12, so that the southern half of the ditch will run on the extreme eastern edge of the subject parcel. For a short distance, two-thirds of the width of the proposed ditch is located off the subject parcel and on the parcel owned by DOT to the east. Applicant proposes to triple the width of the ditch to 60 feet and deepen it so that its bottom would be 20 feet wide.
Applicant proposes impervious surface for the vast majority of the entire southern two-thirds of the parcel. A stormwater collector system would collect water and convey it north under Ashley Glen Road to the northwest corner of the subject parcel. The water would enter a 3.92-acre pond to be excavated at a depth to hold stormwater for 14 days from the design storm event, which is a 100-year, five-day storm. During
this period, contaminants would be removed by evaporation, settlement, and skimming. A littoral shelf abutting the pond on the west will also permit the vegetative uptake of contaminants. Applicant has incorporated wet detention using the conservation design method, a design approved by District for improved stormwater treatment when compared to other wet-detention treatment designs.
From the littoral shelf, stormwater will pass through an outflow structure and enter Mitigation Area B, which will be a created 1.4-acre cypress wetland at the very northwest corner of the subject parcel. Applicant will apply wetland topsoil from the dredged portions of Wetland C12 to Mitigation Area B to encourage the growth of wetland species. Stormwater will sheetflow through Mitigation Area B, which will enhance water quality treatment. Although District calculates mitigation credit for an area only up to the seasonal high water line, Applicant proposes, not merely to sod the slope ending at the seasonal high water line, as is the common practice, but instead to plant this area with native species, such as pines, palmettos, and wax myrtles.
From Mitigation Area B, stormwater flows, by way of a culvert under Ashley Glen Road, to Mitigation Area A, which will be a created 2.5-acre cypress wetland directly across Ashley Glen Road from Mitigation Area A. Applicant will apply wetland
topsoil to Mitigation Area A and plant native species on the upland slopes of the created wetland, which will also treat sheetflow prior to its passing east into the adjacent, undisturbed portion of Wetland C12.
The vice-president of the managing partner of Applicant testified in the case. He has 20 years' experience in commercial construction sales and retail development. He has developed seven shopping centers anchored by a grocery store (Anchored Centers) and six shopping centers without a grocery- store anchor (Unanchored Centers). The corporate managing partner has developed 43 Anchored Centers and is developing five more.
The site-selection process requires analysis of land costs, construction costs, prevailing market rents, outparcel values, zoning, title, environmental issues, and geotechnical issues. Analysis of the locational factors are especially important. These include traffic, residential development, and demographics. The intersection of the Suncoast Parkway and State Road 54 is ideal for the development of an Anchored Center. In the past seven years, 10,000 residential units have been developed in the State Road 54 corridor between State Road
41 and the Suncoast Parkway.
The southeast quadrant of this intersection is being developed with mixed uses, including office and retail. A large
parcel immediately east of the DOT parcel and Ashley Glen parcel is being developed with commercial uses. The southwest quadrant is being developed with a Super Target. Older residential areas exist to the east and southeast of the subject parcel.
Applicant entered a contract to purchase the subject parcel in August 2002 and closed on the purchase in November 2003. It has a contract with Sweetbay Supermarket for the grocery store. The appeal of the Anchored Center is in the synergy between the anchor--the supermarket--and the outparcels. The proposed Anchored Center would be a one-stop destination for the consumer seeking the goods and services associated with a supermarket, bank, restaurant, and allied retail and may thus shorten or reduce the number of motor-vehicle trips.
Raw land in the vicinity of the intersection of the Suncoast Parkway and State Road 54 has been appreciating at a monthly rate of about three percent during the past four or five years. Parcels in Anchored Centers command a considerable premium over similar parcels in Unanchored Centers, and substantially different business risks attach to each kind of development.
One of the differences between the Anchored Center and Unanchored Center is the former's requirement of additional parking. Given this requirement, there was no design modification that would accommodate a shopping center and
parking without destroying wetlands. Although Sweetbay Supermarket has a template for a smaller building than the one proposed on the subject site, the smaller building is typically reserved for urban settings, and nothing in the record suggests that even the smaller building, with surface parking, would spare the wetlands completely.
In its site-planning exercises, Applicant tried to reduce wetland impacts by moving the supermarket to different locations on the subject parcel. The supermarket will not fit on the west side of Ashley Glen Road. On the east side, Applicant moved it as far west as it could to avoid as much wetland impact as possible given the location of the supermarket at the midpoint of the east side of the subject parcel. The present location represents the best accommodation of the Wetland C12 and the commercial development, at its proposed intensity, that Applicant could find after 8-10 reconfigurations of the site improvements.
Given the shape of the subject parcel and Wetland C12, the proposed midpoint location impacts Wetland C12 less than any other location, except right at the northeast corner of the intersection of Ashley Glen Road and State Road 54. However, obvious marketing problems arise with this location. Sweetbay Supermarket understandably desires the supermarket to face State Road 54 to attract business. If the supermarket were located at
the northeast corner of these two roads, there would be no parking in the front, requiring the customers to enter from the back, or the back of the supermarket would face State Road 54.
In designing the site, Applicant reduced some retail space and associated parking to reduce wetland impacts. At the present midpoint location, the elimination of Retail B and Retail C would permit Applicant to move the building to the west, but this would only slightly reduce the wetland impacts because substantial wetland impacts would occur to the south under the footprint of the parking. Similarly, a parking garage would permit Applicant to avoid those substantial wetland impacts, but not the smaller, but still significant, area of wetland impacts under the footprint of the east side of the supermarket building and Retail C.
Of course, Applicant could combine these two modifications--elimination of Retail B and Retail C with the relocation of the supermarket building to the west and the construction of an elevated parking garage on the western half of the proposed footprint of the parking area in front of the supermarket building. Applicant contends that these modifications are not economically practicable. Undoubtedly, parking garages are not typically associated with nonurban development. The vice-president of the managing partner admitted that he had not priced such structures, but estimated
that each space in a parking deck would cost 10 times more than each space at grade. With somewhat more authority, he also testified that the loss of any more retail space would leave the development economically unfeasible.
Sweetbay Supermarket's declared and presumed preferences also play a role in evaluating this substantial design modification. Sweetbay Supermarket prefers retail on both sides of the supermarket, and, given its need for visibility from State Road 54, it may be presumed not to favor the presence of a multi-story parking garage between its grocery store and State Road 54. Again, placing the parking garage behind the supermarket would gain visibility, but raise the prospect of the back of the supermarket facing State Road 54 or the customers entering the store from the back. These are all plainly unacceptable prospects, without regard to Applicant's notions of economic feasibility or return on investment.
Similar considerations apply to the possible realignments of the ditch. In its present alignment, the ditch would be occupied by the footprint of the west half of Retail C, the northeast corner of the supermarket building, as well as parking and paved roadway associated with the supermarket and the restaurant fronting State Road 54 on the east side of Ashley Glen Road. Because the ditch does not extend nearly as far to the west as does Wetland C12, it would be possible to preserve
the present ditch by eliminating Retail B and Retail C and shifting the supermarket building to the west with the "extra" parking gained by the elimination of the two retail strips probably offsetting the lost parking in front of the supermarket. But this is a lot to ask to preserve a conveyance that, on this record, does not rise above the homely level of a ditch with its attendant functional limitations, especially when the new ditch will probably relieve existing flooding around the Hogan wetland.
Applicant's ecologist applied the Uniform Mitigation Assessment Method (UMAM) to assess Wetlands B12 and C12 and the mitigation areas. UMAM and its applicability to this case are discussed in the Conclusions of Law. Generally, UMAM provides a methodology to determine the functional loss of permanent and temporary wetland impacts and the functional gain of mitigation and ensure that the latter equal or exceed the former.
For Wetland B12, Applicant's ecologist determined that its functional value, based on location and landscape support, was 5 out of 10 points due to the isolated nature of the wetland in a pasture, adjacent to a tree farm and absent any buffer. Invasives and exotics are in the adjacent community. Based on water environment, the ecologist scored Wetland B12 with 7 out of 10 points due to the presence of distinct water indicators, although the wetland appears to be dependent on rainfall and had
suffered degradation from cattle. Based on community structure, the ecologist scored Wetland B12 with 6 out of 10 points due to its normal appearance for a cypress dome, but evident lack of natural recruitment, presence of nuisance exotics such as primrose willow and Brazilian pepper, and severe degradation from cattle and other agricultural uses.
The ecologist's assessment of the permanent impact to
3.1 acres of Wetland C12 and temporary impact to 1.4 acres of the ditch within Wetland C12 followed the same approach, except that the temporary impact to the ditch required an additional step in the process. Applicant's ecologist scored the impacted area of Wetland C12, including the 1.4-acre ditch, with an average functional value of 6.67, based on scores of 7 for location and landscape support, 6 for water environment, and 7 for community structure. The location and landscape support are adversely impacted by the reduced complexity of surrounding uplands, but facilitated by the undeveloped state of the immediate vicinity that would allow use by small- to medium- sized wildlife. The ecologist noted the hydrological connection served by the ditch/wetland network and the narrow riparian corridor provided by this arrangement. The function of the water environment is heightened by the fact that most of the water environment is intact, but suffers from adverse impacts to the hydrology and water quality from the construction of the
ditch and conversion of surrounding land cover to pasture and roadway. The community structure is facilitated by the presence of canopy vegetation of cypress, pop ash, and laurel oak, but adversely impacted by the presence of Brazilian pepper in the subcanopy.
The additional step required in the analysis of the temporary impacts to 1.4 acres is the projected functional value of the relocated ditch. As compared to the present ditch, the re-created ditch scored one less point in location and landscape support due to the further reduction in adjacent uplands and resulting inhibition on use by medium-size wildlife that currently use the site, one less point in water environment due to some changes in microclimate, nutrient assimilation, and flow characteristics that may adversely affect current wildlife composition, and four fewer points in community structure due to removal of the canopy, subcanopy, and groundcover with the associated seed banks and vegetative growth that could recruit similar species to match existing composition and structure.
Based on the foregoing, the ecologist concluded that the permanent functional loss to Wetland B12 was 0.35 units, the permanent functional loss to the 3.1 acres of Wetland C12 was
2.07 units, and the temporary functional loss to the 1.4 acres of Wetland C12/the ditch was 0.28 units, resulting in permanent
functional losses of 2.42 units and temporary functional losses of 0.28 units, for a total functional loss of 2.70 units.
For onsite mitigation of these functional losses, Applicant proposes Mitigation Areas A and B. Mitigation Area B, which is the 1.4-acre forested wetland to be created on the west side of Ashley Glen Road, received a score of zero in its present undeveloped state, and scores of 4 for location and landscape support, 7 for water environment, and 6 for community structure after it is created. The relatively low score for location and landscape recognizes the limited connectivity (through culverts) to other existing and proposed wetlands, although the lack of barriers for use by birds and aquatic species is a functional advantage. The relatively high score for water environment reflects the hydrological interdependence of Mitigation Area B with the stormwater collection system and created wetlands and the relative reliability of these sources of hydration. The score for community structure reflects the increases in microtopography resulting from the design of high and low wetland areas and the planting of species to create three vegetative strata within the created wetland.
The ecologist assigned a time lag factor of 2.73 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(1)(d), this time lag factor correlates to a time lag of 36-40 years to establish the mitigative functions for
which the mitigation site is given credit. The ecologist assigned a risk factor of 2 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(2), this risk factor correlates to a moderate risk of failure of attaining the functions predicted for the mitigation site.
Applying the risk and time lag factors to Mitigation Area B, the ecologist calculated a functional gain of 0.15 units for this 1.4-acre mitigation site.
The ecologist used the same methodology for Mitigation Area A, which is the 2.5-acre created wetland across Ashley Glen Road from Mitigation Area B. The ecologist assigned this created wetland a 6 for location and landscape support, a 7 for water environment, and a 7 for community structure. This wetland scored 2 points higher than Mitigation Area B for location and landscape support because it is not isolated by the road and culverts from the unimpacted area of Wetland C12 and offers more upland buffer for small wetland-dependent species. Mitigation Area A scored 1 point higher for community structure due to the likelihood of natural recruitment of seeds from the adjacent unimpacted wetland. For water environment, Mitigation Area A and Mitigation Area B received the same score due to their common characteristics.
The ecologist applied the same time lag factor to Mitigation Area A as he did to Mitigation Area B. However, the
risk factor was one increment less than moderate, probably due to the hydrological advantages that Mitigation Area A enjoys over Mitigation B due to its pre-existing hydric soils and proximity to the unimpacted wetlands of Wetland C12.
Applying the risk and time lag factors to Mitigation Area A, the ecologist calculated a functional gain of 0.35 units for this 2.5-acre site.
Applicant's ecologist then calculated the functional gain from the enhancement of the 1.4-acre Wetland C12/ditch. He found an increase of 0.13, as compared to the current value, based on a relatively strong score for the enhanced location and landscape support, average score for the enhanced water environment, and relatively weak score for the enhanced community structure. The enhanced system enjoys functional advantages from the planting of three strata of vegetation along the ditch and emergents in the channel.
The ecologist applied a time lag factor of 2.18 (meaning 26-30 years) and a moderate risk factor of 2.0 to obtain a final score of 0.03 acres for this enhancement mitigation.
The functional gains and losses for the onsite wetland impacts and mitigation, as determined by Applicant's ecologist, are supported by the record, and his analysis of these losses
and gains from the onsite creation and enhancement mitigation is accurate.
Next, Applicant purchased a conservation easement as offsite mitigation. This easement is on what is known as the Marr Parcel. The Marr Parcel is a 67.49-acre parcel that sits almost in the middle of a large publicly owned area that runs nearly 30 miles along the coast, from Weeki Wachee to the south to Crystal River to the north. Situated in the north-central part of this large area is the District-owned Chassahowitzka River and Coastal Swamps tract (Chassahowitzka Tract). The Marr Parcel is at the southern end of the Chassahowitzka Tract, about four miles from the Gulf of Mexico.
The Marr Parcel is about 33 miles from the subject parcel. The Marr Parcel is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel.
At the end of Zebra Finch Road, the Marr Parcel is surrounded by pristine forested wetland habitat that forms part of an important travel corridor for numerous species, including the Florida black bear. This is a sustainable population of Florida black bears, so this habitat is of critical importance. The forested habitat is a combination of cypress and mixed hardwoods. The larger publicly owned area enveloping the Marr
Parcel includes almost every significant habitat present in Florida. Other parcels preserved by similar means are directly north of the Marr Parcel.
Applicant's ecologist raised the Marr Parcel's score by 1 point for location and landscape support and 1 point for community structure, as a result of the purchase of the conservation easement. The parcel's score for water environment was unchanged by the purchase of the conservation easement.
Taking the modest gain from the purchase of the conservation easement, the ecologist applied the preservation adjustment factor of 0.60 to reduce this gain further and then applied a time lag factor of 1.0, indicative of a time lag of one year or less, and a risk factor of 1.25, indicative of the smallest incremental risk above no risk, to determine a functional gain of 2.16 units for the preservation mitigation involving the Marr Parcel.
Petitioner contends that development of the Marr Parcel was unlikely, even without the conservation easement purchased by Applicant. Without detailed analysis of site characteristics and regulatory controls applicable to the Marr Parcel, it is impossible to evaluate this contention, except to note that the ecologist took very little credit for the transaction. The smallest credit is one point in all three categories; the ecologist took two points. The functional gain
for this preservation mitigation, as determined by Applicant's ecologist, is supported by the record, and his analysis of this gain from the offsite preservation mitigation is accurate, provided District clarifies the ERP, which describes the Marr Parcel in detail, to require that Applicant purchase the conservation easement in the Marr Parcel as part of the required mitigation.
Lastly, Applicant turned to the Upper Coastal Mitigation Bank (UCMB) to purchase 0.4 acres of forested- wetlands credit. This mitigation bank, which is administered by Earth Balance, pertains to property (UCMB Tract) that is just north of the Chassahowitzka Tract, immediately south of Homosassa Springs. A few months prior to the hearing, District permitted the UCMB for 47.64 functional gain units, for the purpose of providing mitigation bank credits to ERP applicants. District has approved UCMB for freshwater forested wetlands credits, among other types of credits.
The UCMB Tract is about seven miles north of the Marr Parcel and, thus, about 40 miles north of the subject parcel. The UCMB Tract is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel.
Based on the foregoing, Applicant realized a functional gain of 0.52 units from the onsite creation and enhancement mitigation, 2.16 units from the offsite preservation mitigation from the Marr Parcel, and 0.40 units from the purchase of units from UCMB, for a total functional gain of 3.09 units.
Pursuant to UMAM, the 2.70 functional loss units are exceeded by the 3.09 functional gain units, so Applicant has provided adequate mitigation.
Applicant provided reasonable assurance that the proposed activity will not cause adverse impacts to the storage and conveyance capacity of surface waters. As noted above, Applicant proposes to expand the conveyance capacity of the ditch by substantially widening and deepening it, which will probably alleviate some of the longstanding flooding around the Hogan wetland.
With respect to Petitioner's parcel, Applicant will place a liner on the west side of the pond, so as to prevent adverse impacts to Petitioner's parcel from base flow. Applicant will add a swale along the west side of the subject parcel to prevent adverse impacts to Petitioner's parcel from stormwater flow. The engineer's analysis in particular does not reveal flooding at the northwest corner of the Ashley Glen parcel, from where Petitioner's wetlands draw hydration.
No testimony revealed whether Applicant's engineer performed pre- and post-development analysis of flows at the point at which the re-created ditch leaves the subject parcel at the DOT floodplain-mitigation site. Nothing in the record suggests that the proposed activities will cause flooding of this site, and DOT will likely perform its own analysis prior to granting Applicant a sufficient interest to dredge part of the realigned, enlarged ditch on DOT property.
The proposed activities will fill 8.48 acre-feet of floodplain, but mitigate this loss with 10.02 acre-feet of excavation. Considered with the increased capacity of the drainage ditch, Applicant proposes to increase flood storage.
Applicant has provided reasonable assurance that the proposed activities will not adversely impact water quality. The water-treatment components of the proposed surface water management system have been described above.
Applicant provided reasonable assurance that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Some minor loss of use by small- and medium-size wildlife may be expected from the loss of
3.1 acres of Wetland C12, but the presence of State Road 54 and imminent development of the Ashley Glen parcel mean that Wetland C12 can provide no meaningful travel corridor. Degraded
adjacent uplands further reduce the value of Wetland C12 as habitat for such wildlife. The created pond will provide habitat for certain birds, and the offsite mitigation will provide functional gain in terms of wildlife habitat.
Changes in fish habitat from the relocation of part of the ditch and dredging of the ditch are also negligible, based on limited utilization of the present ditch and enhanced utilization potential of the new ditch in terms of a more suitable bank, which will be protected from erosion by matting, and the addition of appropriate vegetation, including emergents in the channel.
For the reasons set forth above, Applicant has provided reasonable assurance that the proposed activities will not cause adverse secondary impacts to the water resources. Although the post-development wetlands are unbuffered, the secondary impacts of construction are addressed by the usual construction devices of turbidity curtains and hay bales, and the secondary impacts of the ultimate use of the Anchored Center are adequately addressed by the by the subject surface water management system, especially with respect to water quality treatment.
District's senior environmental scientist disclaimed the existence of post-development secondary impacts, evidently reasoning that Wetlands B12 and C12 had already been impacted.
As discussed in the Conclusions of Law, the secondary impacts are the activities closely linked to the construction of the project. In this case, the project is the surface water management system to serve the development of the Anchored Center, and the obvious secondary impact is motor vehicle traffic on the subject parcel. However, the water-quality analysis addresses this secondary impact.
Subject to one exception, Applicant has provided reasonable assurance that the proposed surface water management system will perform effectively and will function as proposed and that an entity with the requisite financial, legal, and administrative capabilities will conduct the proposed activities. The exception is that District may not issue the ERP until Applicant obtains from DOT a legal instrument, in recordable form, granting Applicant and its assigns all rights necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT floodplain mitigation parcel.
Based on the Conclusions of Law, which necessitate the acceptance of the basin depictions in BOR Appendix 6, Applicant has provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts upon wetlands and other surface waters. However, if the subject parcel were in the basin to the south of the large coastal basin, Applicant has
not provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts because it has not undertaken any cumulative-impact analysis.
Based on the foregoing and subject to the two conditions stated above, Applicant has provided reasonable assurance that the proposed activities in, on, or over wetlands or other surface waters are not contrary to the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2007).
Neither Applicant nor District timely raised the issue of Petitioner's standing. At the start of the hearing, the issue arose, and the Administrative Law Judge stated that the timeliness of the defense would depend on whether it was jurisdictional or merely an affirmative defense. As standing is an affirmative defense, the failure of Applicant and District to raise it timely constitutes a waiver. Home Builders and
Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So. 2d 965, 967-68 (Fla. 1st DCA 1991).
Applicant's post-hearing Motion to Strike, mentioned above, generally claims that the testimony of certain witnesses exceeded the scope of their deposition testimony and should be stricken as in violation of prehearing orders. The
Administrative Law Judge has denied this motion due to Applicant's failure to show prejudice.
The failure of an expert witness to disclose an opinion timely may result in severe sanctions. In Acquisition Corporation of America v. Cast Iron Pipe Co., 543 So. 2d 878 (Fla. 4th DCA 1989), the court affirmed the trial court's exclusion of an expert witness, who, although made available for deposition a week prior to the trial, did not view the property until the day before trial and thus did not form any opinions until that day. The court noted that the exclusion of testimony is a "drastic remedy," but it was within the discretion of the trial judge under those circumstances. In Perryman v. Crawford, 968 So. 2d 83, (Fla. 4th DCA 2007), the court affirmed the trial court's order granting a new trial after defendant's expert witness, who had failed to respond completely on the matter when asked in interrogatories, testified substantially differently as to the size of an artery at trial.
Rather than excluding the expert witness (or a part of his testimony) or allowing him to testify and then granting the opposing party a new trial, the trial court should first identify the specific prejudice and determine if a less disruptive means is available to cure any prejudice and still serve the due-process rights of both parties. Southstar Equity, L.L.C. v Chau, So. 2d , 2008 Fla. App. Lexis 1442 (Fla. 2d
DCA 2008) (not yet final). In this case, the Administrative Law Judge's repeated attempts to implement this procedure were impeded by Applicant's implicit rejection of the judge's invitation to show prejudice at the conclusion of the testimony of each expert witness to whom Applicant objected. For the most part, Applicant instead chose to identify the prejudice after the hearing, thus limiting the means available to cure any prejudice, had any been shown.
Appellate courts do not routinely approve of trial court rulings simply excluding expert witnesses, even when the witnesses have not previously been disclosed. In In re Estate of Lockhead, 443 So. 2d 283 (Fla. 4th DCA 1983), the court reversed a trial court that had excluded a psychiatrist, who had not been disclosed prior to a trial that had been continued several times. The court stated that the trial court should have permitted the psychiatrist to testify, after a deposition or a continuance. Sometimes, though, more than a mid-trial deposition may be required to negate any prejudice. In Department of Health and Rehabilitative Services v. J. B., 675 So. 2d 241 (Fla. 4th DCA 1996), the court held that the trial court had not remedied the prejudice of allowing the testimony of a critical expert disclosed on the day before trial, after four years of discovery, by permitting the agency to take his deposition on the evening of the first day of the trial. The
court stated that the agency also needed a chance to obtain information or expert opinions to rebut the testimony of plaintiff's economist.
While recognizing the broad discretion of a trial judge over such matters, the case law no more supports the rote exclusion of expert witnesses with new opinions, or the new opinions themselves, than it supports an automatic allowance of such testimony.
As the applicant, Applicant has the burden of proving, by a preponderance of the evidence, that it is entitled to the ERP. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 373.413(1), Florida Statutes, requires that District "require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system . . . will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district."
Section 373.414(1), Florida Statutes, provides that:
[a]s part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board . . . shall require the applicant to provide reasonable assurance that the state
water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands . . . is not contrary to the public interest. . . .
Section 373.414(1)(a), Florida Statutes, describes the public-interest test:
In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Section 373.414(1)(b), Florida Statutes, identifies the kinds of permissible mitigation:
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the governing board or the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It shall be the responsibility of the applicant to choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated activity.
Florida Administrative Code Rule 40D-4.301(1)
requires:
In order to obtain a general, individual, or conceptual permit under this chapter or Chapter 40D-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:
Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
Will not cause adverse flooding to on-site or off-site property;
Will not cause adverse impacts to existing surface water storage and conveyance capabilities;
Will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District;
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 and
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., . . .;
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.;
Is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed;
Will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and
Will comply with any applicable special basin or geographic area criteria established pursuant to this chapter.
As relevant to this case, Florida Administrative Code 40D-4.302 adds the requirement that an applicant provide reasonable assurance that the proposed activities will not be contrary to the public interest and not result in "unacceptable cumulative impacts upon wetlands and other surface waters," as set forth in BOR Sections 3.2.8 through 3.2.8.2.
Florida Administrative Code Rule 40D-4.301(3) incorporates the BOR and states that its "standards and criteria
. . . shall determine whether the reasonable assurances required
by subsection 40D-4.301(1) and Rule 40D-4.302 have been provided."
BOR Section 3.2.1 identifies the following factors in the determination of whether District will approve an ERP application:
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 proposed linear system, which could eliminate or reduce impacts to these functions . . ..
BOR Section 3.2.1 requires a two-step analysis of an wetlands impacts and mitigation:
Design modifications to reduce or eliminate adverse impacts must be explored as described in 3.2.1.1. Any adverse impacts remaining after practicable design modifications have been implemented may be offset by mitigation as described in subsections 3.3 through 3.3.8. An applicant may propose mitigation, or the District may suggest mitigation, to offset the adverse impacts which would cause the system to fail to meet the conditions for issuance. To receive District approval, a system can not cause a net adverse impact on wetland functions and other surface water functions which is not offset by mitigation.
The first step is to determine if the applicant has implemented practicable design modifications to eliminate and, if impracticable, reduce adverse impacts to wetland functions. BOR Section 3.2.1.1 states:
Except as provided in 3.2.1.2, 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 sections 3.2.2 through 3.2.3.7, 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.
The term "modification" shall not be construed as including the alternative of not implementing the system in some 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 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.
BOR Section 3.2.1.2 relieves the applicant of the necessity of implementing practicable design modifications to reduce or eliminate adverse impacts under circumstances not relevant to the present case.
BOR Section 3.2.2.3 provides that the assessment of impacts expected from proposed activities on the value of functions of the wetland proposed to be adversely impacted
includes the condition of the wetland, its hydrologic connection, its uniqueness, its location, and the fish and wildlife use of the wetland.
After the applicant has demonstrated that it has implemented practicable design modifications to eliminate or reduce adverse impacts to wetland functions, the second step is to determine if the applicant has mitigated any remaining adverse impacts. BOR Section 3.3 provides:
Protection of wetlands and other surface waters is preferred to destruction and mitigation due to the temporal loss of ecological value and uncertainty regarding the ability to recreate certain functions associated with these features. Mitigation will be approved only after the applicant has complied with the requirements of subsection 3.2.1 regarding practicable modifications to reduce or eliminate adverse impacts. . . .
BOR Section 3.3.1 states:
Mitigation usually consists of restoration, enhancement, creation, or preservation of wetlands, other surface waters or uplands. In some cases, a combination of mitigation types is the best approach to offset adverse impacts resulting from the regulated activity.
BOR Section 3.3.1.2 provides:
In general, mitigation is best accomplished when located on-site or in close proximity to the area being impacted. Off-site mitigation will only be accepted if adverse impacts are offset and the applicant demonstrates that:
on-site mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing adjacent land uses or future land uses identified in a local comprehensive plan . . .; or
off-site mitigation would provide greater improvement in ecological value than on-site mitigation.
BOR Section 3.3.1.3 endorses mitigation through a mitigation bank, in accordance with BOR Appendix 4.
BOR Section 3.3.2 establishes mitigation ratios, but the parties have consistently used UMAM to analyze wetland impacts and mitigation. Applicant inadvertently sought official recognition by Request for Official Recognition filed
September 26, 2007, for a pre-UMAM version of District's BOR, but the updated version, which includes UMAM provisions, is on District's website.2 Because Applicant has used UMAM,3 this recommended order cites the updated BOR Section 3.3.2, as it incorporates UMAM.
New BOR Section 3.3.2 states that, "[e]xcept as provided by [Florida Administrative Code] Rule 62-345 . . ., subsections 3.3.2 through 3.3.2.3 are superseded by Rule 62-345
. . .." Florida Administrative Code Rule 62-345.300(1) explains that UMAM applies when an applicant proposes mitigation for wetlands impacts. Florida Administrative Code Rule 62- 345.100(1) warns that UMAM is to "determine the amount of
mitigation needed to offset adverse impacts to wetlands "
Florida Administrative Code Rule 62-345.100(2) explains that UMAM "provides a standardized procedure for assessing the functions provided by wetlands . . ., the amount that those functions are reduced by a proposed impact, and the amount of mitigation required to offset that loss." The rule adds that UMAM does not address whether the adverse impact meets other criteria for the issuance of an ERP, but UMAM replaces the old mitigation ratios. Florida Administrative Code 62-345.100(4) adds that the UMAM rules do not supersede analysis of secondary or cumulative impacts, the determination of whether a proposal has eliminated or reduced impacts, or the determination of the appropriateness of the type of mitigation offered.
Florida Administrative Code Rule 62-345.300(2)
states:
To determine the value of functions provided by impact and mitigation sites, [UMAM] incorporates the following considerations: current condition (see subsection
62-345.500(6), F.A.C.); hydrologic connection (see paragraph 62-345.400(1)(d), F.A.C.); uniqueness (see paragraph
62-345.400(1)(f), F.A.C.); location (see subsections 62-345.400(1) and 62-345.500(7), F.A.C.); fish and wildlife utilization (see paragraph 62-345.400(1)(h), F.A.C.); time lag (see subsection 62-345.600(1), F.A.C.); and mitigation risk (see subsection
62-345.600(2), F.A.C.).
Florida Administrative Code 62-345.500 applies a scoring matrix to various wetland functions. The top score of "10" is for features that preserve an "optimal" level of function. A score of "7" indicates that the feature is at 70 percent of optimal function. A score of "4" indicates that the feature is at 40 percent of optimal function. And a score of "0" means that the feature provides no function.
Florida Administrative Code 62-345.600 identifies the time lag and risk inherent in mitigation. The time lag is the time that it takes a mitigated wetland to gain the level of function at which it was scored. The rule notes that forested wetlands will take longer than herbaceous wetlands. A score of "2" means that the time lag is around 25 years. The mitigation risk is the risk that mitigation will not achieve the proposed conditions. The rule notes that the longer the time lag, the greater the risk, and systems with relatively simple hydrologies represent less risk. A score of "1" is no or minimal risk, and a score of "3" is high risk.
The analytic process in this case starts with the determination of whether Applicant has made practicable design modifications to "eliminate or reduce" wetlands impacts. This determination logically requires two sequential determinations concerning the practicable design modifications made by Applicant. First, have these modifications eliminated all
wetland impacts? If not, have these modifications reduced all wetland impacts?
BOR provisions on the eliminate-or-reduce requirement caution Applicant only that it may not necessarily obtain the highest and best use of the subject parcel after the completion of the required design-modification process. By contrast, BOR provisions impose four restrictions on Petitioner: two concerning modifications and two concerning practicability. First, modifications do not include the no-build alternative. Second, modifications cannot require projects that are significantly different in type or function from the project proposed by Applicant. Third, modifications are not practicable if they are not technically capable of being done, are not economically viable, or adversely affect public safety. And fourth, a modification may not be practicable even though it does not remove all economic value of the property. The only other BOR provision governing the eliminate-or-reduce requirement is that any determination of the practicability of a modification requires consideration of the cost of the modification compared to the environmental benefit it achieves.
In the absence of Florida case law on the eliminate- or-reduce requirement, federal law provides some guidance, especially in defining the type or function of Applicant's proposed project. Although material difference exist between
the federal and Florida wetlands permitting, federal requirements to avoid and minimize impacts are a counterpart to Florida's requirements to eliminate and reduce impacts. See, e.g., 33 C.F.R. § 320.4(r)(1), which requires the Department of the Army, when issuing permits, to consider "avoiding, minimizing, rectifying, reducing, or compensating for resource losses[, which losses] will be avoided to the extent practicable." Likewise, the court in O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 229 (5th Cir. 2007), noted the requirement imposed on the U.S. Army Corps of Engineers (COE) that it require "[p]ermit applicants [to] design their projects to avoid adverse wetlands impacts where 'practicable' and to minimize those impacts to the extent 'practicable and appropriate,' quoting a Memorandum of Agreement between the Department of the Army and the Environmental Protection Agency Concerning Determination of Mitigation under the Clean Water Act section 404(b)(1), 20 Environmental Law Reporter 35,223 (Feb. 6,
1990).
In Great Rivers Habitat Alliance v. United States Army Corps of Engineers, 437 F. Supp. 2d 1019 (E.D. Mo. 2006), the court considered a city's application to the COE for a permit under Section 404(b) of the Clean Water Act, 33 U.S.C.
§ 1344(a). The city proposed to construct on a site containing wetlands a business park for office, warehouse, manufacturing,
retail, hotel, cultural, and recreational uses and a surface water management system, including a 500-year levee, drainage channels and basins, pumps, and roads. The court noted the prohibition against permitting in 40 C.F.R. § 230.10(a) if there exists any "practicable alternative" with less adverse impact and no significant adverse environmental consequences of its own. The court noted the definition in 40 C.F.R. § 230.10(a)(2) of a practicable alternative as "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes."
The permit opponent in Great Rivers challenged the COE's narrow identification of the project purpose, which, it claimed, unduly restricted the range of alternatives to be considered. Under federal law, alternatives include the possibilities of no project or the project on another site-- neither of which applies in Florida. Among the purposes identified by the COE were a suitable location, within the city, for a mixed use development with office, warehouse, manufacturing, retail, hotel, cultural, and recreational uses on 1200-1400 gross acres (500-800 usable acres), not adjacent to residential areas, and located on an interstate highway or other major thoroughfare.
The Great Rivers court held that this level of specificity, which was supported by a consultant's report, was
an appropriate statement of purpose, even though the specificity of the statement of purpose necessarily decreased the likelihood of finding a practicable alternative to the city's proposed project, whether externally at another site or, as is relevant to Florida, internally by rearranging and reducing the footprint of site improvements. In its analysis of internal alternatives, the court held that the COE did not commit a clear error of judgment in rejecting an alternative levee design due to problems in engineering, construction, performance, and maintenance that the alternative alignment presented and the greater extent of encroachment on road right-of-way presented by the alternative alignment.
In D'Olive Bay Restoration and Preservation Committee v. United States Army Corps of Engineers, 513 F. Supp. 2d 1261 (S.D. Ala. 2007), the court considered a Section 404 permit issued by the COE to an applicant seeking to construct a shopping center anchored by a Bass Pro Shops retail outlet. The application sought a permit to enable the developer to construct a 220-acre mixed use commercial development with a 130,000 square-foot anchor. The application sought a permit to fill
13.4 of the 28.9 wetland acres on the site. This case addresses the specificity of an applicant's statement of purpose and the role of marketability in determining practicability.
The D'Olive Bay court noted that the COE is not allowed to accept uncritically every statement of purpose presented to it, but neither is it allowed to ignore an applicant's stated purpose. The court stated: "The Corps is not a business consulting firm. It is in no position to conduct a feasibility study of alternative sites . . ., a study that would have it . . . evaluate the applicant's business needs . .
.." 513 F. Supp. 2d at 1269 (citing River Road Alliance v. U.S. Army Corps of Engineers, 764 F.2d 445, 452-53 (7th Cir. 1985),
cert. denied, 475 U.S. 1055, 106 S. Ct. 1283, 89 L. Ed. 2d 590
(1986)).
The applicant in D'Olive Bay specified in its alternative analysis the following requirements: the site would need to be at least 200 acres and visible from Interstate 10 with direct access to an interchange; the site must be located in a municipality with a favorable tax structure and an affluent population; the site must be between existing Bass Pro Shops in Destin, Florida, and Bossier City, Louisiana, and not more than
30 minutes of prime hunting and fishing; and the site must not require substantial public road improvements. Perhaps not surprisingly, no practicable external alternative sites existed, although, arguably in an abundance of caution, the applicant later revised its statement of purpose to require the presence of Bass Pro Shops as its anchor. In considering practicable
alternatives within the site, the applicant rejected a parking garage as unacceptable to the retail tenants, who sought ease of access to their stores by surface parking.
The D'Olive Bay court held that the COE did not arbitrarily determine that, based on these siting criteria, there were no practicable alternative sites, externally or internally, for this project.
Another case in which the court approved a restrictive statement of purpose and a wide range of marketing concerns is Sierra Club v. United States Army Corps of
Engineers, 450 F. Supp. 2d 503, 525-28 (D.C. N.J. 2006). For
the purpose of considering external alternatives, the court approved of a statement of purpose as the redevelopment of the Continental Airlines Arena at the Meadowlands in New Jersey.
The court stated that other courts had approved of location- specific project purposes where "the specific site was essential to the project purpose." 450 F. Supp. 2d at 526. Addressing internal alternatives, the court sustained the COE's rejection of alternatives involving more vertical construction, including of parking garages. As to parking, the court noted the COE's analysis that additional parking decks would spare only 0.8 acre of wetlands, which would further degrade due to fragmentation, and would present logistical problems, such as in traffic circulation. Moreover, the court found that the COE reasonably
considered, in light of the project purpose to maximize the economic potential of the Continental Airlines Arena site, "marketing advantages," "reduced marketability," "desirab[ility]," and "synergies" in considering, and rejecting as impracticable, internal siting alternatives. 450 F. Supp. 2d 531-32.
The closest issue presented in this case is whether Applicant has eliminated or reduced wetland impacts to the extent practicable. If practicable modifications extended to an Unanchored Center, Wetland C12 could be spared because it is the presence of the supermarket building and its demand for parking that necessitate the impacts to Wetland C12. After reviewing the above-cited federal cases, District's interpretation of "type or function" in this case, so as to specify an Anchored Center, is a reasoned and informed interpretation of its own rule. Significant differences in economics, traffic, marketing, and overall use attach to Anchored Centers versus Unanchored Centers, and the eliminate-or-reduce requirement cannot force upon Applicant a modification that removes the anchor from the subject parcel, even though wetland impacts would be avoided or at least reduced.
Similarly, the above-cited federal cases reinforce Applicant's argument that marketability concerns and synergistic forces preclude imposing upon Applicant any of the internal
alternatives discussed in the Findings of Fact. It probably does not require the testimony of an experienced shopping-center developer to reject the cheery options of masses of harried shoppers dodging tractor-trailer combinations at the loading ramp to enter the back of the Sweetbay Supermarket, the confusing orientation of the rear of the supermarket to State Road 54, or the obscuring of the front of the supermarket by a stolid parking garage.
At hearing, the parties addressed the eliminate-or- reduce requirement in terms of rates of return on Applicant's investment in the subject parcel. BOR provisions require consideration of economics, but close focus on rates of return is an unpromising way to address the eliminate-or-reduce requirement. If rates of return drove the determination of practicability, two developers of the identical parcel would be treated differently. The developer who inherited the parcel would be find the eliminate-or-reduce requirement considerably more burdensome than would the developer who paid (or overpaid) to acquire the parcel. ERP applications would begin to resemble old offering memoranda with inflated syndication and administrative fees and vastly increased carrying costs, as applicants tried to depress their rates of return in order to avoid design modifications. As noted above, District is not a business consultant, and ERP permitting is driven by natural
resources, not economics. District therefore should not base its eliminate-or-reduce determination on a specific rate of return that an applicant claims or the specific rate of return that an applicant claims that it is entitled to.
Without regard to any rates of return in this case, Applicant has adequately implemented all practicable design modifications to eliminate or reduce wetland impacts.
The next step in the analytic process is to determine if Applicant has mitigated the wetland impacts that remain after implementing the practicable design modifications. The Findings of Fact describe in detail the adequacy of the mitigation. Once District clarifies the requirement in the ERP that Applicant must purchase the conservation easement in the Marr Parcel as part of its required mitigation, Applicant has satisfied the requirement to mitigate the wetland impacts remaining after the implementation of all practicable design modifications.
Testimony from District's senior environmental scientist concerning the absence of secondary impacts was irrelevant because the proposed surface water management system adequately addresses the secondary impacts of motor vehicle traffic using the Anchored Center. Secondary impacts are impacts caused, not by the construction of the project itself, but by "other relevant activities very closely linked or causally related to the construction of the project." Deep
Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140, 1143 (Fla. 2nd DCA 2001); Florida Power Corp., Inc. v. Department of
Environmental Regulation, 605 So. 2d 149, 152 (Fla. 1st DCA 1992); and Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So. 2d 772, 777 (Fla. 1st DCA 1991).
There are no cumulative impacts in this case because, as a matter of law, the mitigation is in the same basin as the direct and secondary impacts, and the mitigation offsets these impacts. BOR Section 3.2.8. If the identification of the basin were a question of fact, the present record suggests that the Marr Parcel and the UCMB Tract are not in the same drainage basin as the subject parcel. However, by identifying the basis in a rule (BOR Appendix 6), District has relieved itself, applicants, and permit challengers of the necessity of litigating, case by case, the proper boundaries of each basin. Also, by identifying these basins by rule, District has removed their proper delineation from this case. Petitioner did not file a rule challenge, so the rule governs. Compare Willette v.
Air Products, 700 So. 2d 397, 401 (Fla. 1st DCA 1997) (an appellate judge may disregard a duly promulgated rule that contravenes a statute, despite the absence of a rule challenge under Section 120.56, Florida Statutes) with Clemons v. State
Risk Management Trust Fund, 870 So. 2d 881, 884 (Fla. 1st DCA 2004) (dictum) (Benton, J., concurring) (an administrative law
judge in Section 120.57 proceeding must deem controlling duly promulgated rules unchallenged under Section 120.56).
The only other legal issues meriting comment are two deficiencies in the proposed ERP concerning administrative and legal matters. First, the ERP is not conditioned upon the receipt of a legal instrument, in recordable form, from DOT Second, the ERP contains a specific condition describing the Marr Parcel, but not specifying that this offsite mitigation is required to offset the impacts to Wetland C12.
Once District adds to the ERP the requirement that Applicant must first obtain from DOT a legal instrument, in recordable form, granting Applicant and its assigns such rights as are necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT parcel, Applicant has provided reasonable assurance that all applicable requirements have been satisfied.
It is
RECOMMENDED that the Southwest Florida Water Management District issue to Win-Suncoast, Ltd., the environmental resource permit, subject to the two conditions identified above.
DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
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 14th day of February, 2008.
ENDNOTES
/ (http://www.swfwmd.state.fl.us/data/map/basinmap.html, last visited February 12, 2008).
/ Last found on February 3, 2008, at http://www.swfwmd.state.fl.us/rules/files/40d_basis_of_review.pd f.
/ Ordinarily, new permitting criteria would apply to a pending application. Even absent the parties' consent, this change in District assessment methodology was applicable to the subject application, even though it had been filed under pre-UMAM law.
Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So. 2d 891, 894 (Fla. 1st DCA 1980). In the case of UMAM, Florida Administrative Code Rule 62-345(7) provides that pre-UMAM law applies to applications involving mitigation pending at the time of the adoption of UMAM, unless the applicant amends its application to be reviewed under Florida Administrative Code Chapter 62, which Applicant has impliedly done with the UMAM analysis of its ecologist.
COPIES FURNISHED:
David L. Moore, Executive Director Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Marcy I. LaHart, Esquire Marcy I. LaHart, P.A.
711 Talladega Street
West Palm Beach, Florida 33405-1443
Margaret M. Craig, Esquire Bricklemyer Smolker & Bolves, P.A.
500 East Kennedy Boulevard, 2nd Floor Tampa, Florida 33602-4936
Renee A. Reed, Esquire
435 First Street South
Winter Haven, Florida 33881-3658
David Smolker, Esquire Bricklemyer, Smolker & Bolves, P.A.
500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602-4936
Jason L. Smith, Esquire Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34604-6899
Jack R. Pepper, Esquire Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34604
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 |
|---|---|---|
| Mar. 26, 2008 | Agency Final Order | |
| Feb. 14, 2008 | Recommended Order | Petitioner implemented all practicable design modifications to eliminate or reduce wetland impacts from anchored shopping center and mitigated the remaining impacts using UMAM analysis, so it is entitled to environmental resource permit. |
