STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PROTECT KEY WEST AND THE FLORIDA ) KEYS, INC., d/b/a LAST STAND, )
)
Petitioner, )
)
vs. ) Case No. 08-3823
) MONROE COUNTY and SOUTH FLORIDA ) WATER MANAGEMENT DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 2-5, 2009, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Richard J. Grosso, Esquire
Everglades Law Center, Inc. 3305 College Avenue
Fort Lauderdale, Florida 33314-7721
Jason Alexander Totoiu, Esquire Everglades Law Center, Inc.
818 U.S. Highway 1, Suite 8
North Palm Beach, Florida 33408-3857
For Respondent: Douglas H. MacLaughlin, Esquire (District) Alison L. Kelly, Esquire
South Florida Water Management District 3301 Gun Club Road
Mail Stop 1410
West Palm Beach, Florida 33406-3007
For Respondent: William L. Hyde, Esquire (County) Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 618 Tallahassee, Florida 32301-1804
Luna E. Phillips, Esquire Gunster, Yoakley & Stewart, P.A.
450 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301-4206
Pedro J. Mercado, Esquire Assistant County Attorney 1111 12th Street, Suite 408 Key West, Florida 33040-3005
ISSUE
The issue is whether to approve an application by Respondent, Monroe County (County), to modify its Environmental Resource Permit (ERP) No. 44-00149-S (Permit) to authorize the construction and operation of Runway Safety Area (RSA) improvements for the existing 9/27 runway and associated wetland mitigation work at Key West International Airport (Airport).
BACKGROUND
On June 26, 2008, Respondent, South Florida Water Management District (District), through its staff, issued a Staff Report recommending approval of an application by the County to modify an existing ERP to authorize certain RSA improvements at the Airport. The Staff Report was approved by the District's Governing Board on July 10, 2008. On July 17, 2008, Petitioner, Protect Key West and the Florida Keys, Inc., d/b/a Last Stand (Last Stand), filed its Request for
Administrative Hearing (Petition) challenging the proposed agency action on numerous grounds. These grounds have been further refined in the parties' Joint Prehearing Stipulation and by oral stipulation at hearing.
The Petition was forwarded by the District to the Division of Administrative Hearings on August 5, 2008, with a request that an administrative law judge be assigned to conduct a hearing.
By Notice of Hearing dated September 4, 2008, the matter was scheduled for final hearing on January 5-7, 2009, in West Palm Beach, Florida. At the request of the parties, venue was changed to Broward County, and the hearing was rescheduled to February 2-6, 2009, in Fort Lauderdale, Florida. However, the hearing was concluded on February 5, 2009.
On August 5, 2008, the County filed a Motion to Strike an allegation from the Petition. The Motion was later amended on August 18, 2008, and was denied by Order dated September 15, 2008.
On January 15, 2009, the District filed a Notice of Amended Proposed Agency Action, which included a Proposed Addendum to Staff Report "to provide clarification, to correct typographical errors and inadvertent omissions as well as to reflect updated information submitted to the District by the applicant." No party objected to the amendments.
On January 16, 2009, the parties filed a Joint Prehearing Stipulation. On January 23, 2009, the County filed a Motion in Limine to Prevent Last Stand's Witness Curtis Kruer From Testifying About Expert Opinions That Were Not Finalized at His Deposition (Motion). In a Response filed on January 30, 2009, Last Stand represented that "the Motion is a non-issue" since Mr. Kruer did not intend to offer new opinions. This was confirmed at final hearing.
At the final hearing, Petitioner presented the testimony of Curtis R. Kruer, an ecologist and accepted as an expert;
Dr. Albert Sullivan, current president of Last Stand's Board of Directors; and Joan Borel, an original founder of Last Stand and its current environmental advisor. By agreement of the parties, for standing purposes only, it presented the deposition testimony of Russell Draper and Geoffrey Marc Heddon, both members of Last Stand. These depositions were received in evidence as Petitioner's Exhibits 46 and 48. Also, it offered Petitioner's Exhibits 1, 2, 22, 25, 27-30, 32, 42, 47, and 49, and County Exhibits 54, 78, and 90. All were received, except Exhibits 27, 47, and 49, on which a ruling was reserved.
Exhibit 49 is the deposition testimony of Peter Horton, manager of the Airport, while Exhibits 27 and 47 are Federal Aviation Administration (FAA) Order 5200.8 and Advisory Circular 150/5300-13, respectively. The objection to Exhibit 49 is
sustained, since Mr. Horton was not disclosed on Last Stand's witness list, and he is not an officer, director, or managing agent for the County within the meaning of Florida Rule of Civil Procedure 1.330(a)(2). The objection to Exhibits 27 and 47 is overruled and they are received in evidence. The District presented the testimony of Ronald Peekstok, Lead Environmental Analyst and accepted as an expert; Anthony M. Waterhouse, Senior Director of the Environmental Regulation Department and accepted as an expert; and Anita R. Bain, Director of the Environmental Resource Permitting Division and accepted as an expert. Also, it offered District Exhibits 12, 59, and 61 through 63, which were received in evidence. The County presented the testimony of Robert E. Johnson, a professional engineer with URS Corporation (URS) and accepted as an expert; Dr. Daniel Cassedy, a senior archaeologist with URS and accepted as an expert; Peter
M. Green, an airport environmental planner with URS and accepted as an expert; and Kevin M. Connor, a former scientist with URS, now employed by H.W. Lochner, Inc., and accepted as an expert. By agreement of the parties, the deposition testimony of
Bart Vernace, a professional engineer and assistant manager of the FAA District Office in Orlando, was received as County Exhibit 6. The County also offered County Exhibits 1-4, 17a, 19, 21, 23, 24, 26-31, 33, 35-37, 46, 53, 54, 61, 62, 70, 88,
90-93, 93a, 94-104, and 108, which were received in evidence.
In addition, the parties jointly offered County Exhibits 7-17, which were received in evidence. Finally, pursuant to requests by the District and Last Stand, the undersigned took official recognition of relevant portions of Parts I and IV, Chapter 373, Florida Statutes1; Florida Administrative Code Rule Chapters 40E-
1 and 40E-4; the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (BOR); and Title 14, Part 139 of the Code of Federal Regulations, which are regulations used by the FAA.
The Transcript of the hearing (seven volumes) was filed on February 25, 2009. By agreement of the parties, Proposed Recommended Orders were filed on March 30, 2009, and they have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the evidence presented by the parties, the following findings of fact are made:
The Parties
Last Stand is a Florida not-for-profit corporation formed in 1987 for the purpose of protecting and preserving the natural environment and quality of life in the Florida Keys. It was organized to respond to development impacts being experienced in Key West in the 1980's, including an effort at that time by the County to expand the Airport runway. It is fair to say that the organization and its members have had a
long-standing interest in the Airport and the surrounding area from an environmental perspective.
The organization has approximately two hundred thirty members; the vast majority live in Key West. A substantial number of the members recreate, bird watch, and enjoy the natural habitats of the Florida Keys. The organization has regularly represented its members in administrative and judicial proceedings since its inception in opposing land use and permitting decisions that it believes have negative environmental impacts.
In the 1800's, the Island of Key West had a single large salt pond "complex," with many fingers, comprising around one hundred acres, which was used in the production of salt through evaporation of seawater. (The testimony indicates that, besides the larger salt pond, other salt ponds were also located on the Island.) Due to filling activities over the years, the larger salt pond in particular, as well as the other ponds, have become fragmented, with multiple shallow-water tidal ponds, collectively known by their historical name, Key West Salt Ponds (Salt Ponds). The Salt Ponds in and around the Airport are one of the few "natural areas" remaining in the City of Key West. What is known today as Duck Pond (also identified as SW-7 on application drawings) was once part of the large salt pond and lies at the western end of the Airport on Airport property. The
impacts on Duck Pond are the primary focus of this case. Most of the Salt Ponds are accessible to the public and members of Last Stand only by kayak or boat. In the case of Duck Pond, it lies just south of Government Road, a public roadway which runs in an east-west direction on the north side of the Airport, and is fenced off for security purposes. Although Duck Pond is not accessible by the public, one can stand on Government Road and observe it a short distance to the south through a chain link fence.
Through live and deposition testimony, Last Stand identified thirteen members, or approximately five percent of the total membership, who regularly or occasionally enjoy bird watching from Government Road. Besides this activity, other members (unidentified by number or name) periodically visit the Salt Ponds area (but not specifically Duck Pond) primarily to engage in activities such as educational field trips, hiking, boating, kayaking, bicycling, fishing, and similar endeavors. Last Stand contends that the proposed improvements to the RSA will substantially reduce the number of birds and/or ducks that use Duck Pond for feed and rest, and that the improvements will cause the loss of unique habitat (fish) that is part of Key West's natural and cultural history and heritage.
The District is a water management district with the power and duty to exercise regulatory jurisdiction over the
administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. The project area is within the regulatory jurisdiction of the District.
The County is a non-chartered county and a political subdivision of the state. It owns and operates the Airport on which the improvements are proposed. If approved, depending on funding availability, construction on the proposed Project will begin sometime between 2009 and 2012. The parties have agreed that the County has the financial, legal, and administrative capability to ensure that the Project will be undertaken in accordance with the terms and conditions of the permit, thereby meeting Florida Administrative Code Rule 40E-4.301(1)(j).
The Project Site
The Airport is located in the eastern portion of the City of Key West. There are Salt Ponds around the Airport and approximately sixteen wetlands and five surface waters in and around the Project area. The Salt Ponds are designated as Outstanding Florida Waters (OFWs) and must meet Class III water quality criteria.
The existing (and only active) runway (Runway 9/27) at the Airport2 runs in an east-west orientation and is 4,801 feet in length. The County is proposing to construct an RSA for the existing runway. An RSA is a graded area surrounding the runway
that is designed to reduce the risk of structural damage to the aircraft and injury to its occupants in the event of an overshoot or undershoot, or if the aircraft otherwise runs off of the paved runway surface. The RSA's stable surface also provides greater accessibility for firefighting and emergency rescue vehicles during such incidents. An RSA surrounds the entirety of a runway on all four sides.
The existing RSA at the Airport is approximately three hundred feet in width along the length of the runway, extends approximately one hundred and ten feet in length beyond the west end of the runway (Runway 27), and extends in an irregular shape approximately two hundred to four hundred feet beyond the east runway end (Runway 9). It does not meet the FAA's current design standards for an RSA.
The Airport has held a Part 139 certificate issued by the FAA since at least the 1970's, if not earlier.3 Part 139 certification authorizes the County to provide scheduled air carrier service at the Airport. As part of its obligation under Part 139, the Airport is required to provide an RSA that meets FAA design standards. The Airport has an Airport Reference Code (ARC) of C-III, which is determined by the size and type of aircraft that use the Airport. The FAA design standard for an ARC C-III runway requires an RSA that is five hundred feet in width along the length of the runway and extends one thousand
feet beyond both ends of the runway. This is referred to as the "standard RSA" for the Airport. The existing RSA configuration at the Airport was previously grandfathered, primarily due to environmental and development cost issues. However, due to a major runway rehabilitation (resurfacing) project conducted in 2003, Part 139 now requires that the Airport provide an RSA that meets applicable safety standards.
The RSA proposed for this project is smaller than the standard RSA. It is four hundred feet in width along the length of the runway and at both ends, except for a two thousand foot section on the north side of the runway where the width is reduced by fifty feet. On the west end of the runway, the RSA will extend six hundred feet beyond the runway end. On the east end of the runway the RSA will extend three hundred seventy-five feet beyond the runway end. The east end RSA is smaller than the west end RSA because the County will use an Engineered Materials Arresting System (EMAS) allowing it to reduce the footprint of the RSA from six hundred to three hundred seventy- five feet in length. An EMAS is a bed of lightweight, engineered, crushable concrete that works to slowdown and stop an aircraft that has overshot a runway, minimizing human injury and aircraft damage. An EMAS operates much in the same way as runaway truck ramps made of gravel.
The FAA requires that an airport conform to the requirements in Part 139 "to the extent practicable." An RSA that does not meet Part 139 standards to the greatest extent practicable places an airport at risk of losing its Part 139 certification. In cases where full compliance with a standard RSA cannot be met, due to unique terrain or environmental conditions, the FAA evaluates and approves alternatives that improve safety through a non-standard RSA. In this case, the FAA approved the proposed alternative RSA configuration by its issuance of a Final Environmental Assessment. See County Exhibit 17. The FAA determined that the RSA footprint could not be made any smaller than the proposed Project or it would not improve safety at the Airport. In approving the design, the FAA noted that the new RSA "meets FAA design standards to the greatest extent practicable, thus improving safety for arriving and departing passengers and aircraft at [the Airport] while maintaining the utility and benefits of the [A]irport for the citizens of Monroe County." Id. It added that the RSA improvements were consistent with "the Council on Environmental Quality's regulations implementing the National Environmental Policy Act" and that it was unnecessary to prepare an Environmental Impact Statement for the project. Id.
The Project will result in impacts to 6.38 acres of mangrove wetlands, 0.36 acres of exposed rock with marsh
grasses, and 1.64 acres of bays and estuaries, for a total of
8.38 acres. The County proposes to implement a mitigation proposal at two different locations within and adjacent to the Airport that includes 11.30 acres of mangrove swamp and tidal flat creation, 3.64 acres of bay and estuary creation, 5.21 acres of wetland enhancement, and 0.96 acres of upland hammock enhancement, for a total of 21.11 acres. Mitigation Area No. 1 (4.44 acres) is located on Airport property at the west end of the proposed RSA and is designed to compensate primarily for impacts to Duck Pond. Mitigation Area No. 2 (17.27 acres) is located north of the Airport at the east end of the runway and is designed to help offset the functional losses of wetland habitats impacted by the Project. Last Stand has not contested the second mitigation area.
The History of the Airport and the Salt Ponds
The Airport is owned and operated by the County, and the Board of County Commissioners sets the policy for the management of the Airport.
The Airport has operated as a commercial service airport since approximately the late 1950's, or long before ERP requirements were implemented. Prior to commercial service, the Airport was a training facility during World War II. (Military operations in the Key West area are now located at the Naval Air Station at Boca Chica Key, three miles east of the Airport.)
Before its use by the military, it was known as Meacham Field and historic photos dating back to 1928 document its use as an airfield. Over the years, the Airport has undergone several improvements and renovations that were reviewed and permitted by the District, including taxiways and aprons, a terminal, car rental facilities, and a parking lot.
Although Boeing 727s (operated by Eastern Airlines) and 737s (operated by Air Florida) once provided commercial service at the Airport, the largest commercial aircraft today are regional jets, which have been providing service since around 2002. The use of larger regional jets increases the dimensional standards for the RSA.
The production of salt began in a portion of what is now known as the Salt Ponds in the 1830's and continued until the Civil War, at which time it ceased. Production began again after the Civil War and continued sporadically until 1876, when a large hurricane destroyed the works.
Approximately one hundred acres were used for salt production, and as late as 1912 the salt works were still visible, albeit in a dilapidated condition. Duck Pond, which is the focus of this case, is located at the west end of the runway and was never a part of any of the salt works. Instead, the area now occupied by Duck Pond was open water through the end of World War II. Historically, Duck Pond was part of a larger
system of salt ponds that was neither isolated nor impounded, but instead open with connections to the Atlantic Ocean.
The modern-day Duck Pond was created at some point shortly after World War II and gradually enclosed into the man- made, semi-impounded, seasonally hypersaline water body that is present today. Its present-day configuration is not natural, but man-induced. It is a semi-impounded 2.81-acre, L-shaped pond that lacks a direct regular tidal connection, and is subject to tidal flushing only during storm tides.
The ERP Permitting Criteria
In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Florida Administrative Code Rules 40E-4.301(1)(b), (c), (g), (h), (i), (j), and (k), and 40E-4.302(1)(a)5., (1)(a)6., (1)(c), (1)(d), and (2). At hearing, Petitioner also stipulated that the wetland impacts on the east end of the Project and Mitigation Area No. 2 are not being challenged. Remaining in
dispute as to the impacts on the west end of the Project are the value of functions criteria (40E-4.301(1)(d) and BOR Section 4.2.2.); elimination and reduction criteria (40E-4.301(3) and BOR Section 4.2.1); secondary impacts (40E-4.301(1)(f) and BOR Section 4.2.7); mitigation criteria (40E-4.301(3) and BOR Section 4.3); cumulative impacts (40E-4.302 and BOR Section 4.2.8); water quantity criteria (40E-4.301(1)(a)); water quality criteria (40E-4.301(1)(e) and (2) and BOR Sections 4.2.4.4, 4.2.4, 4.2.4.1, and 4.2.4.2); and the public interest criteria (40E-4.302(1) and BOR Section 4.2.3).
The following relevant provisions in Florida Administrative Code Rule 40E-4.301(1) require an applicant to provide reasonable assurances 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 adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule
62-302.300, F.A.C., and any special
standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;
will not cause adverse secondary impacts to the water resources . . . .
Florida Administrative Code Rule 40E-4.302 contains additional conditions for issuance of ERP permits, including the public interest test and the cumulative impacts analysis. These conditions are found in the following provisions:
In addition to the conditions set forth in Rule 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system:
Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District", incorporated by reference in Rule 40E-4.091, F.A.C.:
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;
* * *
7. The current condition and relative value of functions being performed by areas affected by the proposed activity.
* * *
Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District", incorporated by reference in Rule 40E-4.091, F.A.C.
Water Quality
Florida Administrative Code Rule 40E-4.301(1)(e) requires the County to provide reasonable assurances that the proposed Project will not adversely affect the quality of receiving waters (the Salt Ponds) such that water quality standards will be violated. The Salt Ponds are designated as OFWs and must meet Class III water quality criteria.
The existing runway and taxiway system for the Airport will drain as it has previously to adjacent surface waters. The only area that is being changed as a result of this permit modification is the RSA.
The slope of the filled RSAs will be very gentle, with a grade a little over one percent. Nevertheless, these gently sloped areas will slow the water down sufficiently as it runs off, allowing it to percolate into the ground and allowing vegetation to uptake any pollutants before they reach the adjacent surface waters.
The Staff Report also authorizes a temporary mixing zone in accordance with Section 4.2.4.4 of the BOR. This is intended as a temporary measure which allows some pollution to occur during the construction phase without necessarily requiring that the project be shut down. Temporary mixing zones are a customary feature of stormwater management systems of this
sort.
Section 4.2.4 of the BOR provides criteria requiring
that "reasonable assurances regarding water quality must be provided for both the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal and abandonment of the system." To comply with this requirement, the County demonstrated that neither short-term nor long-term water quality impacts will occur.
Short-term water quality considerations are discussed in Section 4.2.4.1 of the BOR and apply to practices undertaken during the construction phase. The County complied with the short-term requirements by (1) providing for turbidity barriers
adjacent to the wetlands and surface waters during the construction phase; (2) providing a turbidity monitoring plan to be implemented during the construction phase; (3) stabilizing newly created slopes adjacent to wetlands or surface waters to prevent erosion and turbidity; (4) prohibiting the use of any vessels during construction to prevent any dredging or rutting;
(5) establishing construction staging areas in uplands to ensure that oils, greases, gasoline, or other pollutants will not be released; and (6) utilizing any fill generated by the proposed Project to prevent any discharge from spoil sites. The Operational Plan for the Runway Safety Area Improvements (Operational Plan) also contains the water quality protection measures to be implemented during the construction phase. See County Exhibit 26.
Long-term water quality considerations are discussed in Section 4.2.4.2 of the BOR. The County complied with the long-term water quality considerations by (1) increasing the internal connections of Mitigation Area Nos. 1 and 2 with the surrounding salt ponds, thereby improving water quality; (2) stabilizing any disturbed soils with vegetation to prevent erosion; and (3) preventing discharges and releases of pollutants from the system by implementing the Best Management Practices (BMPs) recommended in the Florida Department of Transportation's Florida Airports Stormwater BMPs Manual.
The Operational Plan also addresses long-term measures by ensuring that all grass clippings are collected from the sodded RSA, prohibiting the use of any pesticides, fertilizers, or herbicides on the RSA, and ensuring that sediment barriers are installed as soon as possible after an emergency to reduce the potential for discharges to the adjacent waterbodies.
Given all these measures, the proposed Project will not cause any violation of applicable OFW or Class III water quality standards. In fact, the volume and rate of stormwater runoff from the runway will be reduced if the Project is constructed. Last Stand did not present any testimony or evidence to the contrary.
In addition to these water quality measures, the County provided reasonable assurances that (1) the proposed Project will not result in any new stormwater runoff to the Salt Ponds beyond existing conditions; (2) the RSA and the EMAS surface will not be used by aircraft or other vehicles; and (3) the proposed Project will not induce additional activity or alter the use of the airfield.
Last Stand has questioned the overall adequacy of the water quality data relied upon by the County. Its allegation regarding water quality violations from nearby septic tanks is unsupported by the evidence. Further, a contention that salinity data alone is an inadequate gauge of water quality is
contradicted by its own testimony that "[s]alinity is an excellent way of determining water quality, a parameter to learn about a water body or a series of connected water bodies." District witness Peekstok added that physical and biological indicators alone can and are used to determine the health of a system. In any event, Last Stand concedes that water quality in the Salt Ponds or the mitigation areas was not at issue.
Although Last Stand alleges that an understanding of the ambient water quality of the Salt Ponds is critical to analyzing water quality, this assertion is unpersuasive. First, there is no evidence that any water quality standard is being violated. Nonetheless, Florida Administrative Code Rule 40E- 4.301(2) imposes additional water quality standards if the existing ambient water quality of the receiving waterbodies does not meet standards. The rule requires an applicant to comply with the requirements set forth in Section 4.2.4.5 of the BOR, which refers back to the short and long-term water quality considerations in Sections 4.2.4.1 and 4.2.4.2. The County has addressed these parameters.
There is no documentation that the existing runoff has adversely affected the receiving waters. Given all the above precautionary measures, there will be no adverse water quality impacts to the receiving water bodies from the Project. To the contrary, dissolved oxygen levels should improve, as should the
general water quality of the Duck Pond, as a result of connecting the culverts and increased flushing. The salinity regime of the reconfigured Duck Pond will also more closely mimic the surrounding conditions. The more credible testimony shows that water quality will not be degraded, and in fact, will likely improve. Therefore, the County has given reasonable assurances that the proposed Project complies with Florida Administrative Code Rule 40E-4.301(1)(e) and (2).
Water Quantity
Florida Administrative Code Rule 40E-4.301(1)(a) requires that the County demonstrate that the proposed Project will not cause adverse water quantity impacts to receiving waters and adjacent land and not exceed the capacity of the downstream receiving water bodies. In this case, the receiving water bodies are the Salt Ponds.
The County demonstrated compliance with these criteria through the unrebutted testimony of witnesses Johnson and Waterhouse. Together, they provided evidence that the proposed Project would not increase or change the amount of runoff or drainage coming off the property currently by rate, flow, or volume. In fact, the amount of surface water runoff will either remain the same or even be reduced. County Exhibit 7 includes a Drainage Report, which contains the analysis in support of this testimony. Based on these considerations, it is found that the
County provided reasonable assurances the proposed Project will not result in adverse water quantity impacts.
Functions To Fish, Wildlife And Listed Species
Florida Administrative Code Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a system will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.
Section 4.2.2 of the BOR adds that an applicant must provide reasonable assurances that the project will not impact the values of wetland or other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife, and listed species; and (b) the habitat of fish, wildlife, and listed species. The manner in which an assessment of impacts on the value of functions is made is further described in BOR Section 4.2.2.3 as follows:
The assessment of impacts expected as a result of proposed activities on the value of functions that any wetland or other surface water provides to fish, wildlife, and listed species will be based on a review of pertinent scientific literature, hydrologic information, and field inspection.
When assessing the value of such functions, the factors which the District will consider are: condition,
hydrologic connection, uniqueness, location, and fish and wildlife utilization. Id. This information, which supports the County's conclusions on the functional values, is contained in the RSA Environmental Report received in evidence as County Exhibit 36.
The proposed Project impacts wetlands and surface waters that are part of the Salt Ponds. These wetlands include mangroves, open water shallow salt ponds, and exposed rock with marsh grasses. A total of 13.92 acres of wetlands and surface waters are within the Project site. The Project impacts 8.38 acres of these wetlands, which consist of 6.38 acres of mangrove habitat, 0.36 acres of exposed rock with marsh grasses, and 1.64 acres of Duck Pond. (Around 1.178 acres of Duck Pond will not be impacted.)
The Salt Ponds are open water, tidally-influenced, estuarine environments with varying degrees of submerged aquatic vegetation. The mangrove communities immediately surrounding the open water Salt Ponds consist of red, black, and white mangrove species. The mangroves adjacent to the runway are trimmed in accordance with a Department of Environmental Protection (DEP) Permit and Consent Order.
Florida Administrative Code Rule Chapter 62-345 requires impacts to the value and function of wetlands to be assessed using the Uniform Mitigation Assessment Methodology
(UMAM). The UMAM provides a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions are reduced by a proposed impact, and the amount of mitigation necessary to offset that loss. See Fla. Admin. Code R. 62-345.100(2). The County prepared two UMAM assessments, one for the proposed wetland impacts, and one for the proposed mitigation areas. See County Exhibits 29 and 30. Last Stand did not conduct a UMAM assessment. The UMAM assessment for the wetland impacts, conducted by County witness Connor, calculated that 5.41 functional units would be lost.
Last Stand focused solely on the potential impacts to Duck Pond from the proposed Project. It presented no evidence on any of the other wetlands or surface waters within the proposed Project. Duck Pond is at the west end of the runway and is located within the Airport property boundary. It has been impacted over the years by man's activities, such as road construction, military facilities, runways, and related development. It is surrounded by open areas, roadways, and a runway to the east. Its location at the end of a runway results in a high degree of disturbance (such as noise and wake turbulence) from aircraft landing at, or exiting from, the Airport.
While all parties agree that Duck Pond provides resting and feeding functions, primarily to birds, the value of these functions is comparatively lower than the other surrounding salt ponds. Duck Pond suffers from limited internal circulation and connections with the other salt ponds due to years of filling and construction and lack of maintenance to two existing culverts. In its current state, Duck Pond is a very harsh environment due to extreme fluctuations in salinity, temperature, water levels, and dissolved oxygen. These fluctuations are not conducive to maintaining abundant fish and wildlife. Comparatively, the surrounding salt ponds do not experience these extremes because internal connections allow the circulation and exchange of water. As a result, the surrounding salt ponds support a larger and more diverse population of fish and wildlife. Last Stand's argument that these fluctuations are unique and ecologically beneficial to fish and wildlife is rejected.
To demonstrate compliance with Section 4.2.2 of the BOR, the County presented various scientific analyses and sampling reports evidencing Duck Pond's lower functional value when compared to the surrounding salt ponds. The County conducted two separate salinity sampling events, one in December 2005 and a larger study in October 2007, entitled the Salt Ponds Salinity Sampling Report (Sampling Report). See County Exhibit
The 2007 sampling event demonstrates the hypersalinty in Duck Pond, with salinity readings ranging from 32 parts per thousand to 57 parts per thousand. The other salt ponds registered salinity readings between 29 and 36 parts per thousand. The salinity of ocean water is 33 parts per thousand. The unrebutted evidence from the Sampling Report demonstrates the higher fluctuations of salinity in Duck Pond, as compared to the other salt ponds.
To document bird usage within the Salt Ponds and Duck Pond, the County presented the Preliminary Wildlife Hazard Assessment Report, May 2005 (Report) received in evidence as County Exhibit 70. The Report provided a quantitative survey of birds observed at the Airport over a four-day period from December 6 through 9, 2004. The Report demonstrates that the Salt Ponds, in general, are used by a variety of birds, including migratory waterfowl and the reddish egret, and Duck Pond was not used by any one specific bird to the exclusion of the other Salt Ponds. Last Stand admits that Duck Pond does not provide an exclusive habitat to migratory waterfowl.
The evidence indicates that Duck Pond has little or no submerged aquatic vegetation, thus lessening its feeding value for birds. The presence of submerged aquatic vegetation is indicative of a salt pond's higher functional value to fish and wildlife. As discussed by County witness Connor, Duck Pond has
a five percent cover of submerged aquatic vegetation, while the salt pond to the north has about eighty percent coverage and the salt pond to the south has about thirty-to-forty percent coverage. The lack of seagrass is caused by harsher salinity regimes as well as wide temperature and water level fluctuations.
The County also conducted a qualitative fish sampling in the Salt Ponds during December 2007 to determine the level and extent of fish present. A few species were observed in the Salt Ponds including the Key Silverside, a state listed threatened species. Mr. Connor, who physically conducted the fish sampling, noted that the abundance of fish in the large salt pond to the north of the Airport was the greatest, followed by the large salt pond to the south and west of the Airport. Duck Pond, where he was able to survey the entire pond, had the least amount of individual fish documented.
The County provided copies of its sampling results to, and consulted with, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, two federal agencies having jurisdiction over fish and wildlife. The agencies both commented that the proposed Project would not adversely impact fish or wildlife.
Section 4.2.2.4 of the BOR also requires an applicant to provide reasonable assurances that the project will not
change the hydroperiod (the time when a wetland or surface water is covered with water) of a wetland or other surface water so as to adversely affect wetland functions or surface water functions. The evidence demonstrates that the water levels within the remaining portion of Duck Pond and Mitigation Area No. 1 will improve because they will not fluctuate as widely.
In any event, to comply with BOR Section 4.2.2.4(c), the County is required to maintain and monitor Mitigation Area No. 1 to ensure no adverse impacts.
Last Stand contends that Duck Pond is a "unique" habitat, different from the other salt ponds because there was only "one original natural salt pond," which Duck Pond is a part of, and the only place that migratory waterfowl can stop to rest on their migration south during the wet season. However, this argument is not supported by the evidence. While Last Stand agrees with the County's evidence regarding Duck Pond's historical connections to the other salt ponds and the Atlantic Ocean, it still maintains that the pond should remain in its semi-impounded state because of its current unique attributes.
Uniqueness is defined in Section 4.2.2.3(c) of the BOR as "the relative rarity of the wetland or other surface water and its floral and faunal components in relation to the surrounding regional landscape." The evidence demonstrates that the floral and faunal components of Duck Pond are limited due to
the mangrove trimming and the high fluctuations in salinity and water levels. Its relationship to the surrounding salt ponds is likewise limited and diminished. Although Last Stand contends that Duck Pond is "unique," it acknowledges that there are "hundreds" of other ponds in the Lower Keys used by migratory waterfowl. If Duck Pond has unique characteristics, they are not ecologically beneficial or positive when compared to the habitat in the surrounding salt ponds. Therefore, Duck Pond is not unique, as defined by the BOR.
Last Stand presented only twenty-year-old data in support of its contentions. The data consisted of two twenty- year-old photographs of migratory waterfowl purportedly using Duck Pond and one salinity report from 1986, with no salinity data from Duck Pond. It did not sample the salinity in Duck Pond, did not conduct a UMAM analysis, did not conduct a secondary or cumulative impacts analysis, did not conduct any fish sampling, and did not conduct any macroinvertebrates sampling to support its position. In contrast, County witness Connor has visited Duck Pond approximately fifteen times since 2001, while District witness Peekstok has been on the site more than twenty times.
The preponderance of the credible evidence supports a finding that the County provided reasonable assurances that the proposed Project will not cause adverse impacts to fish,
wildlife, or listed species, as required in Section 4.2.2 of the BOR.
Elimination and Reduction
Florida Administrative Code Rule 40E-4.301(3) requires an applicant to explore and implement practicable design modifications to eliminate and reduce wetland and surface water impacts.
BOR Section 4.2.1 provides that:
Design modifications to reduce or eliminate adverse impacts must be explored, as described in subsection 4.2.1.1., which states that except as provided in subsection 4.2.1.2., 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
4.2.2 through 4.2.3.7, 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.
Section 4.2.1.1 of the BOR adds that
Except as provided in section 4.2.1.2, 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 4.2.2 through 4.2.3.7, 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, not 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."
To comply with this requirement, before it filed an application, the County prepared an Alternatives Analysis Working Paper, exploring twenty design modifications for the RSA. See County Exhibit 23. In assessing the various modifications, the County considered the level to which a particular design would improve safety at the Airport, the degree of environmental impacts, and the constructability, cost, and operational feasibility.
Because the purpose of the RSA project is to improve safety at the Airport, any design modifications that did not substantially improve safety, that is, increase the width of the RSA beyond its current three-hundred-foot width, were rejected. Using the standard RSA as the baseline, modifications that resulted in substantially higher wetland impacts or impacts to historic resources were rejected, including the standard RSA option. The standard RSA would have resulted in approximately twenty-four acres of wetland impacts. Instead, the County chose Alternative No. 18 as the proposed Project.
Alternative No. 18 impacts 8.38 acres of wetlands and surface waters. This is a sixty percent reduction in wetland impacts (from 24.5 acres to 8.38 acres) when compared to the standard RSA. Impacts to the highest quality wetlands and surface waters (Wetlands 1A, 4, 5, 6A, 8 and Surface Waters 1, 6A, 6B, 8) were eliminated. The impacts to high quality surface waters 6A and 6B were eliminated by creating the notch in the northern length of the runway. The County reduced the amount of impacts to Wetlands 1B, 2, 3, 7a, 7b, and Duck Pond. Notably, by reducing the width of the west end RSA to four hundred feet, the impacts on Duck Pond were reduced from 1.93 acres to 1.64 acres. Accordingly, it is found that Alternative No. 18 best balances the need to improve safety while eliminating and reducing wetlands impacts through practicable design changes.
Last Stand contends that impacts to Duck Pond should have been eliminated completely or reduced further. At hearing, it presented two alternative modifications: (1) shifting the runway to the east to avoid impacting Duck Pond, and (2) reducing the footprint of the west end RSA by using EMAS material, similar to the east end RSA.
As to the first alternative, Last Stand suggests shifting the runway to the east to avoid impacting Duck Pond, but at the expense of the east-end mangroves. However, the mangroves to the east of the proposed Project are of higher
function and value than Duck Pond. Last Stand's main contention is that the east-end mangroves are already trimmed under a DEP Consent Order. While it is true that the County trims mangroves around the runway, including those adjacent to Duck Pond, the mangroves affected by this suggested alternative can only be trimmed to fifteen-to-twenty feet under the Consent Order, as opposed to the mangroves surrounding Duck Pond, which are trimmed more extensively. Further, Mr. Connor stated that the east-end mangroves are some of the most highly functioning mangroves on the entire island of Key West. Even Land Stand admitted that the east-end mangroves have "a lot of functional value," and it presented no data, analysis, or UMAM assessments on the function and value of the eastern mangrove wetlands. The more credible evidence demonstrates that shifting the runway to the east would result in an increased amount of impacts to higher quality wetlands, in violation of the elimination and reduction criteria.
Further, shifting the runway to the east is beyond the scope of the elimination and reduction criteria. The elimination and reduction criteria pertain to proposed projects. See § 4.2.2.1, BOR. The proposed Project in this case involves the RSA, not the runway, an already existing and permitted feature of the Airport. The District has never interpreted this rule to require modifications to already existing facilities.
Therefore, shifting the runway to the east to eliminate impacts to Duck Pond is not a practicable modification, as defined in BOR Section 4.2.1.
Alternatively, Last Stand argues that an EMAS should have been used on the west end RSA to reduce impacts to Duck Pond. It contends that if an EMAS was acceptable on the east end, then it should be appropriate on the west end. In order to use an EMAS on the west end of the runway, however, a "standard EMAS" application of six hundred feet in length and four hundred feet in width is needed. Since an EMAS crushes under the weight of an aircraft to slow planes down, it is not appropriate for aircraft to land in the EMAS. Because of prevailing winds, the predominant flow of air traffic is from west to east, and the west end is more susceptible to undershoots. Placing an EMAS immediately adjacent to the west runway end would pose a significant safety concern for aircraft that undershoot the runway, potentially landing in the EMAS bed. A standard EMAS application on the west would require more graded surface adjacent to the runway for planes landing short. Thus, this configuration results in a footprint that is essentially the same as the proposed Project and does not lessen wetland impacts. As such, the modification of installing an EMAS on the west end in the same size as the east end is not a practicable
modification because it adversely affects public safety. A standard EMAS on the west does also not lessen wetland impacts.
Besides these two modifications, Last Stand questions the general "need" for an RSA at the airport, citing a number of reasons, including the Airport's historical low accident rate; the sufficiency of the current RSA; the FAA's inaction over the years regarding the County's Part 139 certification even though the Airport has a non-standard RSA; and the predominant landing pattern of aircraft from west to east, making an RSA on the west end unnecessary. None of these arguments is persuasive. The evidence establishes that an airport's safety record is not a factor in whether an RSA is required; that the flow of traffic is irrelevant because an RSA is required around the entirety of the runway; and that due to runway improvements in 2003, the FAA did mandate the County to investigate and implement RSA improvements to the extent practicable, as documented in the FAA's Environmental Assessment. See County Exhibit 17.
Finally, Last Stand questions whether the "financial feasibility" of various modifications was adequately considered. The BOR provides that modifications which are not financially feasible are not practicable, giving an applicant the opportunity to demonstrate the feasibility of a modification with respect to its financial impact.
In making this argument, Last Stand relies upon a Recommended Order entered in the case of Captiva Civic Association, Inc., et al. v. South Florida Water Management District, et al., DOAH Case No. 06-0805, 2006 Fla. Div. Adm. Hear. LEXIS 527 (DOAH Nov. 8, 2006). (In response to the Recommended Order, an Order of Remand was entered by the District on December 15, 2006, but no further action was taken as the case eventually settled and the file was closed by the Administrative Law Judge on February 14, 2008.) In that case, the Administrative Law Judge ruled that the District had not adequately considered the financial feasibility of additional elimination and reduction before accepting the applicant's claim that it could not eliminate or reduce any further due to the financial impact. Id. at *62. However, it was the applicant who raised the financial feasibility as its basis for not exploring additional modifications. As District witness Peekstok explained, financial feasibility is simply an option in the elimination and reduction criteria similar to the other options in the rule. There is no requirement that the District investigate financial feasibility for every single ERP application, but only for those applicants who raise this as a reason why they cannot modify a project.
Here, there is no evidence that the County failed to explore or implement any modifications due to cost. In fact,
the contrary is true, because the RSA improvement project was given a maximum feasible cost of $10.3 million by the FAA, while the proposed Project is estimated to cost $11.8 million. More importantly, Last Stand's reliance on the Captiva case was misplaced, because as found above, Last Stand did not present one practicable modification that cost more than the proposed Project, yet resulted in fewer impacts.
Even though the County conducted an exhaustive elimination and reduction analysis, the County's agreement to place approximately fifty-five acres of salt pond wetlands under a perpetual conservation easement triggered the so-called "out provision" of the elimination and reduction criteria. That provision is found in Section 4.2.1.2(b) of the BOR and states
The District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when:
* * *
(b) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.
In addition to Mitigation Area Nos. 1 and 2, which on their own offset the wetland impacts, the County agreed to preserve an additional fifty-five acres of salt pond habitat, as added reasonable assurances. These fifty-five acres are referred to as Preservation Area No. 3. It is clear that the
restoration and preservation of the Salt Ponds has been a long- standing regional restoration plan in Key West, championed primarily by Last Stand. The evidence demonstrates that Preservation Area No. 3 adds to the regional plan to preserve the Salt Ponds and provides greater long-term ecological value than Duck Pond, in accordance with Section 4.2.1.2(b) of the BOR.
In summary, the evidence supports a finding that the County explored and implemented practicable design modifications. As established by an FAA representative, an RSA smaller than the proposed Project would lose the project's safety benefits and improvements; therefore, it would not be a practicable modification.
The County properly analyzed and explored practicable design modifications in accordance with Section 4.2.1 of the BOR. In addition, since the addition of Preservation Area No. 3 meets the criteria in BOR Section 4.2.1.2(b), it is also found that compliance with the elimination and reduction criteria in Section 4.2.1 of the BOR was not mandated.
Cumulative Impacts
Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurances that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections
4.2.8 through 4.2.8.2. Section 4.2.8 requires an applicant to provide reasonable assurances that the regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters "within the same drainage basin as the regulated activity for which a permit is sought." If an applicant mitigates wetland impacts within the same drainage basin as the impacts, and the mitigation fully offsets these impacts, the project will be considered to have no unacceptable cumulative impacts. See, e.g., Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298 (DOAH Aug. 27, 2002); 2002 Fla. ENV LEXIS 297 (SFWMD Nov. 14, 2002).
The proposed Project is within the Atlantic Ocean Drainage Basin. It is undisputed that the wetlands impacts and the mitigation are proposed within the same drainage basin. Since the impacts are being offset within the same drainage basin, and the mitigation offsets the impacts, the County provided reasonable assurances that the proposed Project will not result in any unacceptable cumulative impacts, in accordance with BOR Section 4.2.8.
Secondary Impacts
Florida Administrative Code Rule 40E-4.301(1)(f) and Sections 4.1.1(f) and 4.2.7 of the BOR require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources.
Section 4.2.7 of the BOR states in part that "an applicant must provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource . . . ." De minimis or remotely related secondary impacts will not be considered unacceptable. See § 4.2.7(a). The secondary impacts analysis has been stated as impacts that occur outside the direct footprint of the project, but which are very closely linked and causally related to the activity to be permitted. See, e.g., The Conservancy, Inc., et al. v.
A. Vernon Allen Builder, Inc., et al., 580 So. 2d 772, 779 (Fla. 1st DCA 1991).
To comply with this criterion, the County is mitigating for the secondary impacts associated with Wetland No.
The proposed Project directly impacts 0.68 acres of Wetland No. 2, leaving 0.17 acres unaltered, but hydrologically isolated. The County is therefore mitigating for the remaining
0.17 acres to address the hydrological secondary impact. No other secondary impacts are anticipated.
Duck Pond is habitat for several species of fish, including the Key Silverside, a listed state fish in the Salt Ponds. During the dry season, when the water level drops, these fish become more concentrated, providing feeding opportunity for wading birds. While there are no formal management guidelines or rules adopted for the Key Silverside, the County reviewed the
conservation recommendations contained in the Florida Natural Areas Inventory, "Field Guide to Rare Animals of Florida." See County Exhibit 62. The County implemented the conservation practices recommended in this document, which include (a) preventing loss of mangrove habitats by eliminating impacts to the east-end mangroves, and (b) the installation and opening up of three culverts to allow fish access to Mitigation Area No. 1, Duck Pond, and Preservation Area No. 3. By incorporating these conservation recommendations, the County complied with BOR Section 4.2.7(b), providing reasonable assurances that no adverse secondary impact would occur to this listed species.
Last Stand further contends that the proposed Project will result in an increase in airport operations, and this increase in activity generates a need for a secondary impacts analysis on the related impacts. The unrebutted testimony of the County and FAA established that the proposed Project will not result in any increases in airport operations. To the contrary, the evidence showed that the proposed Project will not increase the length of the runway or its pavement strength, both of which are primary factors in airport capacity. Also, it will not change the ARC designation assigned by the FAA. Thus, there is no causal relationship or close link between the RSA and increased airport traffic. As to this issue, then, a secondary impacts analysis was not required. Therefore, it is found that
the County provided reasonable assurances that no adverse secondary impacts will occur, as required by BOR Section 4.2.7.
G. Mitigation
Florida Administrative Code Rule 40E-4.301(3) requires an applicant to address the mitigation requirements in the BOR. Section 4.2.1 of the BOR provides that any adverse impacts remaining after design modifications have been implemented may be offset by mitigation. Section 4.3 of the BOR specifies that mitigation is required only to offset the adverse impacts to the functions of wetlands.
The proposed Project will impact a portion of Duck Pond. To offset the functions provided by Duck Pond, the County has proposed creating Mitigation Area Nos. 1 and 2. The UMAM for the wetland impacts calculated 5.41 functional units to be offset. The same analysis indicates that Mitigation Area Nos. 1 and 2, together, will generate a functional gain of 6.02 units. The gain of 6.02 units more than offsets the loss of 5.41 units.
Mitigation Area No. 1 is located on the west end of the proposed RSA and is primarily intended to replace the functions lost by impacting 1.64 acres of Duck Pond. This mitigation creates 1.73 acres of open water salt pond that will be contiguous with the remaining 1.17-acre portion of Duck Pond. A mangrove fringe will also be constructed around the mitigation area. In total, Mitigation Area No. 1 will be 4.44 acres in
size and consist of 2.71 acres of mangrove habitat surrounding
1.73 acres of open water pond. The bottom elevations of the mitigation area will match that of Duck Pond, with a depth of minus one-foot elevation. The planting plan includes mangroves and salt-water grasses, planted at elevations that correspond with the existing topographic elevations of Duck Pond.
The mitigation plan includes opening up two existing culverts (which are now essentially blocked with silt) and adding a third culvert from Mitigation Area No. 1 and Duck Pond to the salt ponds to the south and west of the Airport. These culvert connections are intended to increase the internal circulation of water from Mitigation Area No. 1 to the other salt ponds, stabilizing the salinity and water level fluctuations and thereby stabilizing the habitat for a larger array of species. Last Stand acknowledges that Mitigation Area No. 1 will provide resting and feeding habitat for wading birds and migratory waterfowl.
Although Duck Pond currently has sparse seagrasses, the County and District expect that seagrasses will grow more abundantly in Mitigation Area No. 1 and the remaining portion of Duck Pond as a result of the proposed Project allowing seed source to travel into Mitigation Area No. 1. Because the mitigation will not be immediately adjacent to the runway, the mangroves will not require trimming. The combination of
seagrasses, mangroves, and their detrital export, and the ability for fish to move in and out of the mitigation area, is expected to provide more feeding opportunities to birds and other wildlife. Also, Mitigation Area No. 1 will not be located at the end of the center of the runway (as Duck Pond is currently); therefore, the mangrove fringe around the open water portion of the area will be allowed to grow much larger, which will provide greater foraging opportunities. Finally, birds using Mitigation Area No. 1 will not experience the turbulence and noise emanating from the aircraft as they do currently.
Preservation Area No. 3 adds an additional fifty-five acres of salt pond habitat that will be connected to Mitigation Area No. 1. The County's UMAM assessment of this area generated an additional 1.5 functional units above and beyond the 6.02 units calculated from Mitigation Area Nos. 1 and 2. In total, the County is proposing 7.52 functional units to offset the loss of 5.41 functional units. This more than offsets the impacted functions.
In all, the Salt Ponds comprise between four and five hundred acres. (As noted above, the original salt pond near the Airport was approximately one hundred acres.) The three mitigation areas to be preserved equal approximately seventy- five acres of salt pond habitat, which amounts to close to twenty percent of the salt pond habitats. Although not
precipitated by the mitigation criteria, conserving Preservation Area No. 3 adds additional reasonable assurances that whatever functions are provided by Duck Pond will be offset.
Mitigation Area Nos. 1 and 2, along with Preservation Area No. 3, will be placed under a perpetual Conservation Easement in favor of the District. Last Stand presented no evidence contesting the adequacy or appropriateness of these Conservation Easements.
Last Stand has questioned the adequacy and potential success of Mitigation Area No. 1 in several respects. First, it asserts that Mitigation Area No. 1 is not "like-kind" mitigation because it does not create a replica of Duck Pond's unique habitat, an impounded water body. This argument, however, misstates the purpose of mitigation by essentially advocating that only a replica of Duck Pond would be acceptable.
Mitigation offsets the value of the function provided by the impacted resource and does not need to be a replica of the impacted resource, just similar. The evidence demonstrates that Mitigation Area No. 1 was designed using similar details from Duck Pond. For example, the plants will be planted at the same elevations; the extracted bottom of Duck Pond will be placed in the planting zones of Mitigation Area No. 1; and the two existing culverts will be restored at the same elevations and
sizes, resulting in resting and feeding functions similar to Duck Pond.
Most of the restoration projects that have occurred in the Salt Ponds have included restoring water circulation to the Salt Ponds and have been supported by Last Stand. The 1990 Conservation and Recreational Lands Report, which Last Stand witnesses Borel and Kruer contributed to, recommends restoration of the Salt Ponds through increased water circulation. See Petitioner's Exhibit 1. The County's mitigation efforts are consistent with this principle.
Alternatively, Last Stand claims the design of Mitigation Area No. 1 will not allow internal circulation of water with the other salt ponds. More specifically, it contends the design of the channel connecting Mitigation Area No. 1 to Preservation Area No. 3 is flawed because it is a five-foot-wide ditch and will only allow water to "leak out." This assumption is incorrect. Mitigation Area No. 1 will actually have a ten foot wide channel at the bottom, while sloping up to a width of eighteen feet at the top of the bank, connecting to Preservation Area No. 3 and allowing adequate flow and interchange of water between the two. This is confirmed by the signed and sealed engineering drawings of the County, which were not contradicted.
The County is also required to abide by the maintenance and monitoring requirements contained in the Staff Report to ensure the success of the mitigation.
Section 4.3 of the BOR states that in certain cases, "mitigation cannot offset impacts sufficiently to yield a permittable project" when the regulated activity significantly degrades an OFW, adversely impacts habitat for listed species, or adversely impacts wetlands or other surface waters not likely to be successfully recreated. The County demonstrated that the project will not degrade the OFW, that it will not adversely affect a listed species, and that the mitigation will be successful. Accordingly, it is found that the County provided reasonable assurances that the proposed Project will offset its impacts in accordance with Section 4.3 of the BOR.
G. The Public Interest Test
In addition to complying with the requirements of Florida Administrative Code Rule 40E-4.301, the County must also address the criteria contained in the so-called Public Interest Test, which are found in Florida Administrative Code Rule 40E- 4.302(1)(a)1.-7. and Section 4.2.3 of the BOR. See also
§ 373.414(1)(a), Fla. Stat. Because the proposed Project discharges to an OFW, the applicable standard is whether the Project is "clearly in the public interest."
In interpreting the Public Interest Test, the District looks at the seven factors in the rule and balances the potential positive and potential negative effect of a project to determine if it meets the public interest criteria. In applying this test, the District is limited to a consideration of matters within the substantive jurisdiction of the District. The seven factors are balanced, and need not be weighed equally. Fla. Admin. Code R. 40E-4.302(1)(a).
Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others
The County provided reasonable assurances that the Project will not adversely affect public health, safety and welfare. To the contrary, the project is intended to improve public health, safety, and welfare by improving the RSA at the Airport. Similar to the examples in Section 4.2.3.1 (a) of the BOR, the Project will reduce impacts to the surrounding wetlands and surface waters by preventing an aircraft from overshooting or undershooting into the surrounding salt ponds and surface waters. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)1.
Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats
The District's public interest review of this criterion is encompassed within the review of the system under
BOR Section 4.2.2. As found, the mitigation will offset impacts to fish and wildlife, particularly the resting and feeding functions. The more credible testimony indicates that the mitigation plan would improve the abundance and diversity of fish and wildlife in the Salt Ponds. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E- 4.302(1)(a)2.
Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling
The Project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the proposed Project's construction would result in harmful erosion, shoaling, or impede the flow of water. Instead, it will improve the flow of water, and numerous precautionary measures will ensure no harmful erosion or shoaling. The Project is considered positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)3.
Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity
Last Stand's witnesses agreed that Duck Pond does not provide any fishing, boating, kayaking, skiing, or hunting uses because it is located within the Airport property and is inaccessible to the general public. The proposed Project does not support any marine productivity uses such as fish nursery
habitat. The only recreational use discussed by Last Stand is bird watching, which members do from Government Road through a chain link fence. Last Stand acknowledges that its members will still be able to bird-watch from this road when Mitigation Area No. 1 is constructed. Therefore, the Project is deemed positive as to this factor. See Fla. Admin. Code R. 40E-4.302(1)(a)4.
Whether the regulated activity will be of a temporary or permanent nature or affect archaeological resources
The parties have stipulated that the Project is permanent in nature and there are no significant archeological or historical resources that will be adversely affected by the Project. Therefore, the Project is considered neutral as to these factors. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6.
The current condition and relative value of functions being performed by areas affected by the proposed regulated activity
The current condition and relative value of functions currently provided by Duck Pond are lower than the surrounding Salt Ponds. While the Project will affect the current condition of Duck Pond and other wetlands and surface waters for the purposes of construction, the County proposes mitigation which will improve and enhance these functions. On balance, the testimony has demonstrated that the internal circulation of water within the Salt Ponds is ecologically beneficial as opposed to maintaining the current semi-isolated and impounded
conditions experienced by Duck Pond. Therefore, the Project is positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value of the functions provided by Duck Pond and other affected wetlands and surface waters. See Fla. Admin. Code R. 40E- 4.302(1)(a)7.
Overall, the Project is positive when the criteria are weighed and balanced. The importance of improving safety at the Airport by reducing the potential for fatalities and injuries cannot be overlooked or underestimated. This is clearly an important goal and one which is in the public's interest. When weighed and balanced against all the factors, it is determined that the proposed Project is clearly in the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Balino v. Department of Health & Rehabilitative Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, the County has the burden of proving by a preponderance of the evidence that it is entitled to modify its existing ERP.
The County contends that the substantial interests of Last Stand are not affected by the modification of the ERP, and therefore it lacks standing to participate in this proceeding. (The District has not taken a position on this issue.) To demonstrate standing to participate in an administrative proceeding, the proof required "is proof of the elements of standing, not proof directed to the elements of the case or to the ultimate merits of the case." Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., 34 Fla. L. Weekly D348 (Fla. 2d DCA, Feb. 10, 2009).
Because Last Stand as an entity does not claim to be substantially affected by the Project, its standing is "associational" in nature and derived from the representation of its members. The test for associational standing is set forth in Florida Home Builders Association, et al. v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982). Under that test, Last Stand has to prove that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed Project; that the subject matter of the proposed Project is within the general scope of the interests and activities for which the organization was created; and the relief requested is of the type appropriate for the organization to receive on behalf of its members. Id. at 352-53.
While Last Stand has adequately demonstrated that the environmental ramifications of the RSA improvements are within the general scope of interests and activities for which the organization was created, and the relief requested (denial of a permit modification) is of the type appropriate for the organization to receive on behalf of its members, it failed to prove that a substantial number of its members, although not necessarily a majority, are substantially affected by the Project. The focus of the challenge here is an alleged adverse impact on Duck Pond, a small salt pond that cannot be physically accessed by the public, but which can be observed through a chain link fence while standing on Government Road. The evidence shows that no more than thirteen or so members, out of a total of two hundred thirty, or slightly more than five percent, regularly or occasionally use Government Road for the purpose of birdwatching in Duck Pond. Under any reasonable definition of the word "substantial," five percent does not satisfy the standing test. See, e.g., Lambou, et al. v. Department of Environmental Protection, et al., DOAH Case No. 02-4601, 2003 Fla. ENV LEXIS 210 at *66 (DOAH June 24, 2003), DEP Final Order Sept. 22, 2003 (Final Order not reported in LEXIS)("less than ten percent of the County membership [of the Sierra Club] can hardly be considered to be substantial"). Therefore, Last Stand has failed to prove the elements of
associational standing. Even so, Last Stand was allowed to fully participate in this proceeding and to litigate all issues raised in its Petition.
District rules and statutory provisions require that an applicant give reasonable assurance that the conditions for the issuance of a permit have been met. §§ 373.413 and 373.414, Fla. Stat.; Fla. Admin. Code R. 40E-4.301 and 40E-4.302. Reasonable assurance contemplates a substantial likelihood that the project will be successfully implemented. Metropolitan Dade County v. Coscan Florida, Inc., et al., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). However, this does not require an absolute guarantee of compliance with environmental standards. See, e.g., Save Our Suwannee, Inc. v. Department of Environmental Protection, et al., 1996 Fla. ENV LEXIS 37 at *17-18, DOAH Case Nos. 95-3899 and 95-3900 (DOAH Dec. 22, 1995, DEP Feb. 5, 1996). Indeed, "[a] party seeking a regulatory permit from DEP or a water management district is not required to disprove all 'possibilities,' 'theoretical impacts,' or 'worst case scenarios' by a permit challenger in order to be entitled to a permit." Charlotte County, et al. v. IMC-Phosphates Company, et
al., 2003 Fla. ENV LEXIS 169 at *46, DOAH Case No. 02-4134 (DOAH Aug. 1, 2003, DEP Sept. 15, 2003).
By a preponderance of the evidence, the County has established its entitlement to the requested modification of its
ERP. Where conflicting evidence on the issues was presented, the more credible and persuasive evidence was accepted in favor of the applicant. Therefore, the County's application to modify its existing ERP No. 44-00149-S should be approved.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the South Florida Water Management District enter a final order granting the County's application to modify its existing ERP No. 44-00149-S to authorize the construction and operation of Runway Safety Area improvements to the existing runway and associated wetland mitigation work at the Key West International Airport.
DONE AND ENTERED this 20th day of April, 2009, in Tallahassee, Leon County, Florida.
S
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2009.
ENDNOTES
1/ All references are to the 2008 version of the Florida Statutes.
2/ There is one main runway at the Airport, which runs in an east-west direction. Runway 9, which refers to a heading of ninety degrees, is used when aircraft land or take off to the east, while runway 27, which refers to a heading of 270 degrees, is used by aircraft landing or taking off to the west.
3/ A Part 139 Certification is issued by the Federal Aviation Administration and establishes certification requirements for airports in the United States that serve scheduled or unscheduled air carrier operations in aircraft having a seating capacity of more than thirty passengers. See Title 14, CFR, Part 139.
COPIES FURNISHED:
Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406-3007
Richard J. Grosso, Esquire Everglades Law Center, Inc. 3305 College Avenue
Fort Lauderdale, Florida 33314-7721
Jason Alexander Totoiu, Esquire Everglades Law Center, Inc.
818 U.S. Highway 1, Suite 8
North Palm Beach, Florida 33408-3857
Douglas H. MacLaughlin, Esquire
South Florida Water Management District 3301 Gun Club Road
Mail Stop 1410
West Palm Beach, Florida 33406-3007
Luna E. Phillips, Esquire Gunster, Yoakley & Stewart, P.A.
450 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301-4206
William J. Hyde, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 618 Tallahassee, Florida 32301-1804
Pedro J. Mercado, Esquire Assistant County Attorney
111 12th Street, Suite 408 Key West, Florida 33040-3005
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 12, 2009 | Agency Final Order | |
| Apr. 20, 2009 | Recommended Order | Monroe County gave reasonable assurances that no adverse impacts would occur by virtue of making safety improvements at Key West Airport; modification of ERP approved. |
