vs.
Respondents.
) Case No. 10-9292
On March 1-2, 2011, the final administrative hearing in this case was held in Tallahassee before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Sidney L. Matthew, Esquire
Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Edwin A. Steinmeyer, Esquire Lewis, Longman & Walker, P.A. 2600 Centennial Place, Suite 100
F. Joseph Ullo, Esquire Lewis, Longman & Walker, P.A.
The issue in this case is whether the Department of Environmental Protection (DEP) should issue a Wetland Resource Permit (WRP), number 37-0281978-002-DF, to Blueprint 2000 for a project to widen Capital Circle (SR 263) in Tallahassee from just south of Orange Avenue to just south of Tennessee Street (US 90).
On April 29, 2010, DEP gave notice of its intent to issue WRP 37-0281978-002-DF. Petitioner requested an administrative hearing. On September 23, 2010, DEP referred Petitioner’s First Amended Petition to the Division of Administrative Hearings (DOAH).
On December 14, 2010, Petitioner moved to amend its Amended Petition to add the issue of whether Blueprint provided evidence of financial resources necessary to conduct mitigation activities, monitoring, and corrective action, as required by Florida Administrative Code Rule 62-312.390(1)(a). The motion was denied on the ground that, as an intergovernmental agency of Leon County and the City of Tallahassee, Blueprint is exempt
from the requirement of that rule under section 163.01(9)(c), Florida Statutes.
On February 22, 2011, the parties filed a Prehearing Stipulation that narrowed the issues. At the final hearing, Blueprint called: Hugh Williams, P.E., a transportation engineer; Natalie Betz Zierden, P.E., a stormwater engineer; and Kevin Connor, a wetlands and wildlife ecologist. DEP called: Tom Franklin, an environmental specialist with DEP; and
Richard Musgrove, P.E., a stormwater engineer with DEP. Petitioner called: Michael Dalton, an environmental specialist with DEP; and David Tillman, P.E., a stormwater engineer. The following exhibits were received in evidence: Respondents’ Joint Exhibits 1-12; Blueprint’s Exhibits 1-9; DEP Exhibits 2-7,
10, 11, 14, and 15; and Petitioner’s Exhibits 123, 220, and 228.
A Transcript was filed, and the parties filed proposed recommended orders, which have been considered.
Blueprint 2000 is an intergovernmental agency created by Leon County and the City of Tallahassee under chapter 163, Part 1, Florida Statutes.
Blueprint has undertaken a project to widen a segment of Capital Circle in Tallahassee between Interstate 10 and the Tallahassee Regional Airport, specifically from just south
of Orange Avenue to just south of Tennessee Street (US 90), from two to six travel lanes.
Gum Swamp is near the north end of Blueprint’s proposed project. It is divided by Capital Circle, with most of the swamp located east of the road.
Petitioner, the Gibby Family Trust, owns property in the smaller part of Gum Swamp west of Capital Circle, specifically in the southwest corner of the intersection of Capital Circle and Gum Road. Petitioner also owns a larger parcel of property a little farther west and north of Gum Swamp, north of Gum Road, that has frontage on the south side of Tennessee Street. Petitioner’s primary concern about the project is that it will cause flooding and worsen water quality in the part of Gum Swamp where Petitioner owns property.
On August 28, 2007, Blueprint 2000 applied to DEP for a WRP for the proposed project.
On September 18, 2007, Blueprint applied to DEP to be approved to use General Permit for New Stormwater Discharge Facilities (the SWGP) for the treatment of stormwater runoff from the proposed project. On October 18, 2007, DEP approved Blueprint’s use of the SWGP for the project.
The SWGP approved the water quality treatment of stormwater from the project area at the existing Martha Wellman Pond, which was constructed as part of the previous improvements
to Capital Circle from Interstate 10 south to U.S. 90, and at the following stormwater treatment ponds to be constructed: Broadmoor pond; the four Delta ponds; Nina pond; and Orange pond.
During the process of DEP’s requests for additional information on Blueprint’s WRP application and Blueprint’s responses, Leon County asked Blueprint to add two stormwater ponds to the project--the Gum Road pond, which is just north of Gum Road near the Gum Road floodplain compensation area, and the Swamp Fox pond at the intersection of Capital Circle and Swamp Fox Road, which is south of Gum Swamp--to meet Leon County’s stormwater permitting requirements. Blueprint asked DEP whether these additions would require a modification of the stormwater permit. DEP staff determined that no modification to Blueprint’s SWGP was possible (since it was a general permit) or necessary (since the two ponds would not increase stormwater runoff and added to the water quality treatment already determined to be sufficient for the project). Blueprint’s WRP application was modified to add the Gum Road and Swamp Fox ponds.
On April 29, 2010, DEP issued its notice of intent to approve Blueprint’s WRP application. Petitioner requested a hearing, to include consideration of Petitioner’s opposition to proposed wetland impact mitigation at a site just north of Gum
Road, near Petitioner’s larger parcel of property north of Gum Road and south of Tennessee Street, because the proposed mitigation would require the imposition of a conservation easement, which would not allow the use of the area for floodplain compensation for development on Petitioner’s larger parcel. In response to Petitioner’s opposition to the Gum Road mitigation site, Blueprint informed DEP on September 15, 2010, that Blueprint would provide wetland impact mitigation at the Broadmoor mitigation area in lieu of the Gum Road mitigation
area.
Blueprint’s WRP application, as amended, indicated
that the project would directly impact 6.22 acres of jurisdictional wetlands in six different locations--0.58 from dredging, 0.02 acres from shading, and 5.62 acres from filling. These impacts were to be offset by mitigation in the same drainage basin--the Lake Munson basin. The mitigation proposed by Blueprint would include the creation of approximately 25.42 acres of forested and transitional wetland habitat at the Broadmoor and Delta mitigation areas. Further, to compensate for impacts to a 1.1-acre conservation area adjacent to the roadway in the western Gum Swamp (the Zenz mitigation area), Blueprint will record a conservation easement over an 8.6-acre tract of forested wetlands adjacent to the roadway. In all, the mitigation plan will provide 6.79 functional units of gain
within the Lake Munson drainage basin and would more than offset the 4.53 units of functional loss in the same drainage basin, as calculated using the Uniform Mitigation Assessment Methodology (UMAM).
Blueprint provided reasonable assurances that its proposed project will not result in water quality violations but, rather, will improve water quality. As indicated, the Gum Road and Swamp Fox stormwater treatment ponds add to the water quality treatment provided and already approved in the SWGP. In addition, the WRP provides for four “stormceptors” in the segment of the project in Gum Swamp. A stormceptor collects runoff from the road way and filters it by use of a chamber system that removes pollutants by allowing metals and sediments to settle to the bottom and oils to float to the top of the system and discharges the filtered water through the middle of the chamber, free of most light oils, heavy metals, and sediment. The existing roadway does not have stormceptors, and they were not included in Blueprint’s SWGP application, which was approved without them.
Blueprint proved that the proposed project will not adversely affect the public health, safety, or welfare or the property of others--specifically, with respect to water quantity, flooding, and transportation.
Blueprint proved that the quantity of water discharging from the project will not increase and that the project will not cause flooding. Detailed analysis in accordance with Florida Department of Transportation regulations demonstrate that post-development discharges of stormwater during design storm events will not exceed pre-development discharges. As for flooding, Blueprint proposes to compensate for all fill required for the project by removing an equal amount of soil from the Gum Road floodplain compensation area. In addition, detailed modeling using regional and site-specific data showed that there will be no change in flood elevations as a result of the project.
Adding travel lanes to Capital Circle, as proposed, will improve traffic flow and make driving in the project area safer. It also will improve an intermodal link between Interstate 10 and the Tallahassee Regional Airport.
Blueprint proved that the proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Loss of existing opportunities for wading birds, including wood storks, to forage in roadside ditches will be replaced by new, comparable foraging opportunities. Loss of existing habitat will be mitigated by creation of four times as much habitat. Appropriate measures will be taken to protect and conserve the
eastern indigo snake. In addition, a single large box culvert under Capital Circle in Gum Swamp near Petitioner’s smaller parcel will be replaced by three culvert/wildlife crossings, one in the location of the existing box culvert, and the other two spaced out along the road to the south. The new culverts/wildlife crossings will help conserve wildlife utilizing habitat in the vicinity of Gum Swamp.
Blueprint proved that the proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Post-development discharge rates will not exceed pre-development discharge rates. Appropriate measures will be taken to prevent erosion during construction. Bridging Gum Creek in lieu of the existing culverts will improve the creek’s flow. The new culverts/wildlife crossings in Gum Swamp will maintain or improve flow between the eastern and western parts of the swamp. In general, the flow of water in the project area will be maintained.
The proposed project is permanent in nature. Some impacts due to construction would be temporary, and these would be minimized by use of best management practices.
The proposed project will not adversely affect significant historical or archaeological resources under the provisions of section 267.061.
Blueprint’s UMAM analysis demonstrated that the current condition and relative value of the functions being performed by areas affected by the proposed project will be maintained or improved.
Blueprint provided reasonable assurances that its proposed project will not be contrary to the public interest.
Because Blueprint proposes to mitigate for wetland impacts in the same drainage basin as the impacts, and the proposed mitigation offsets the impacts, there will be no cumulative impacts to wetlands.
Petitioner contends that the project will flood and adversely affect water quality on its property because runoff from Capital Circle will be directed to the west of the roadway into Gum Swamp. Actually, runoff from the northernmost stormceptor will be directed to the east of Capital Circle. Runoff from the other three stormceptors will discharge to the west of Capital Circle but will enter Gum Swamp to the south and down-gradient of Petitioner’s property and will flow away from Petitioner’s property. In addition, the proposed culverts/wildlife crossings will allow the water from both sides of the road to mix and equalize. Blueprint proved that water quality in the vicinity of Petitioner’s property will not worsen but, rather, will improve.
Petitioner presented the testimony of a stormwater engineer who questioned whether flooding of Petitioner’s property will occur notwithstanding Blueprint’s floodplain compensation. During the review process, Petitioner’s engineer took the position that detailed modeling would be needed to answer the question. He was told that modeling was being undertaken and that the results would be presented to him after review by Blueprint’s engineers. Until shortly before the final hearing, Petitioner’s engineer was not aware that the necessary modeling had been done and that showed no flooding would occur.
Periodic flooding occurs on Petitioner’s smaller parcel in the Gum Swamp in its current and pre-existing condition because it is in the 100-year floodplain. In addition, a “backwater” condition has been created in the past by improper maintenance of a Leon County control structure that is supposed to allow excess water to flow out of Gum Swamp into flow-ways leading south, eventually to Lake Munson. Proper maintenance of the control structure will help alleviate flooding. In addition, the project would alleviate flooding by bridging Gum Creek, which flows around the southern edge of Gum Swamp and into a canal system leading to Lake Munson. More water would be able to flow through the bridge openings than can flow through the existing culverts under Capital Circle at Gum Creek.
Petitioner contends that the WRP cannot be issued as proposed because it conflicts with engineering drawings submitted by Blueprint in support of its use of the SWGP, which indicate that (untreated) stormwater from Capital Circle in the Gum Swamp will run off to the east. The SWGP is a separate permit that addresses water quality, not water quantity. Regardless of the conflicts in the engineering drawings, the SWGP provides some of the water quality assurances for the WRP. The SWGP does not require the WRP to provide that all runoff from Capital Circle in the vicinity of Gum Swamp be discharged to the east (into the larger part of Gum Swamp to the east of the road), as indicated in the SWGP engineering drawings. Issues as to whether construction in accordance with Blueprint’s WRP will result in compliance with the SWGP are not part of this WRP proceeding.
Petitioner contends that Blueprint’s WRP application is void because it revises a void original application. Actually, DEP stamped Blueprint’s original application “void” to avoid confusion when it was replaced by an amended application that updated wetland impact acreages and changed the name of the applicant’s agent. The original application was not void.
Petitioner contends that the SWGP and WRP had to be considered together as an application for an ERP. However, Blueprint’s WRP application was deemed complete on July 18,
2008, before ERPs became mandatory. Blueprint did not request that its applications be reviewed together, either as an application for an ERP or, under rule 62-25.060(1), as an application for the “construction of a new stormwater discharge facility [that] requires . . . a dredge or fill permit ”
DEP staff “consolidated” (or “merged”) the SWGP and WRP application files for purposes of review of the WRP application as to water quality issues.
In its proposed recommended order, Petitioner requested the addition of a condition to Blueprint’s WRP providing essentially that all construction approved by both the SWGP and the WRP must be performed “simultaneously, concurrently and not in phases or segments.” Petitioner also requests strict compliance with the added condition and no future modification. It is clear that Blueprint’s WRP does not approve a phased or segmented project and that Blueprint must comply with its WRP. There is no need for an additional condition as to those matters. However, it is appropriate to add a condition to the WRP to make it clear that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds, and the stormceptors in the Gum Swamp segment directing runoff away from Petitioner’s property, must be constructed simultaneously with the rest of the project.
DEP’s engineer testified that there should be a condition that “would not allow any other changes to occur.” But the evidence does not support the need for a condition that would prohibit any future modification of the WRP, however minor. Any major modification would give Petitioner a point of entry to initiate a separate proceeding to challenge the modification.
Blueprint contends that Petitioner did not prove ownership of the property alleged to be affected by Blueprint’s WRP and did not prove an injury-in-fact. Although ownership deeds were not introduced in evidence, witnesses for Blueprint and DEP conceded Petitioner’s ownership interests. There also was ample evidence that Blueprint’s WRP reasonably could be expected to affect Petitioner’s substantial interests even if an adverse effect on them was not proven.
CONCLUSIONS OF LAW
In addition to administrative agencies (in this case, DEP) and "specifically named" persons whose substantial interests are determined in a proceeding (in this case, Blueprint), section 120.52(13)(b), provides that the term "party" includes "[a]ny other person . . . whose substantial interests will be affected by proposed agency action "
For years, standing to be a party in a proceeding under section 120.57 was determined under the standard set out
in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981):
[B]efore one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury.
The second deals with the nature of the injury.
Although Agrico was decided on the second prong of the test, its first prong also has been applied to make standing determinations.
More recent appellate decisions have clarified the first prong of the Agrico test. In order for a third party to have standing as a petitioner to challenge agency action in an administrative proceeding, the evidence must prove that the petitioner has substantial rights or interests that reasonably could be affected by the agency's action. See St. Johns Riverkeeper, Inc., et al. v. St. Johns River Water Mgmt. Dist., et al., Fla. 5th DCA Case No. 5D09-1644, Op. Filed February 18, 2011; Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl.
Prot., 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009); Peace
River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co.,
18 So. 3d 1079, 1082 (Fla. 2d DCA 2009); Reily Enters., LLC v.
Fla. Dep't of Envtl. Prot., 990 So. 2d 1248, 1251 (Fla. 4th DCA
2008). See also § 403.412(5), Fla. Stat. (“A citizen's substantial interests will be considered to be determined or affected if the party demonstrates it may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter.”)
As the owner of property adjacent to Blueprint’s proposed project, Petitioner has substantial interests that could be affected by Blueprint’s WRP so as to enable Petitioner to contest Blueprint’s WRP application and raise its issues regarding flooding and water quality. In addition, Petitioner had substantial interests in not having a conservation easement placed on land it wanted to keep available for use for floodplain compensation for development on its property fronting Tennessee Street. For these reasons, Petitioner has standing.
As applicant, Blueprint has the burden to prove entitlement to the WRP. Fla. Dep't of Transp. v. J.W.C. Co.,
Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Once an applicant presents evidence and makes a preliminary showing of entitlement, the permit will be granted unless "contrary evidence of equivalent quality" is presented by the Petitioner, in which case entitlement is decided by a preponderance of the evidence. J.W.C., supra, at 789.
Entitlement to a permit is based solely upon compliance with applicable permit criteria. Council of the
Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 67 (Fla. 3d DCA 1983).
Section 373.4145(1)(a), requires DEP to adopt rules to regulate the construction, operation, alteration, maintenance, abandonment, and removal of stormwater management systems within the geographical jurisdiction of the Northwest Florida Water Management District (NWFWMD), which includes Blueprint’s project area. It also provides that, until those “stormwater management system rules take effect, chapter 62-25, Florida Administrative Code, shall remain in full force and effect.” Those rules regulate stormwater discharges and include rule 62-25.801, which constitutes a SWGP for facilities meeting certain criteria, including the provision of storage volume deemed necessary for the treatment of stormwater runoff prior to discharge into the waters of the State.
Section 373.4145(1)(b), requires DEP to adopt rules for the management and storage of surface waters within the geographical jurisdiction of the NWFWMD. It also provides that, until those rules “take effect, rules adopted pursuant to the authority of ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, in effect prior to July 1, 1994, shall remain in full force and effect . . . .” Those rules included rule chapter 62-312, which sets out the
requirements and procedures for obtaining a WRP for dredging and filling activities.
New ERP rules for the geographical jurisdiction of the NWFWMD are set out in rule chapter 62-346, which took effect on November 1, 2010. Because Blueprint had a SWGP for its project and had a complete application for a WRP pending prior to November 1, 2010, it was not required to apply for an ERP. See
§ 373.4145(6), Fla. Stat. Instead, Blueprint exercised its right to apply for a WRP.
DEP’s “consolidation” or “merger” of Blueprint’s WRP and SWGP application files for ease of review of the WRP application did not convert the WRP application into an ERP, or require the engineering drawings supporting the WRP application to match the engineering drawings supporting the SWGP application.
Rule 62-312.300(3) requires DEP to “first explore project modifications that would reduce or eliminate the adverse environmental impacts of the project . . . .” Petitioners do not contend that this criterion was not met. Blueprint proposes to reduce impacts to Gum Swamp by minimizing the width of the new road by use of retaining walls instead of shoulder side slopes, a minimal median, and wildlife crossings on the segment of roadway that divides Gum Swamp.
Rule 62-312.060(10) requires that DEP determine whether a WRP application meets the criteria in sections 403.918(1) and (2)(a)1.-7., Florida Statutes (Supp.1992). Those statutes require that an applicant for a WRP provide reasonable assurance that water quality standards will not be violated and, for a project like Blueprint’s that is not in an OFW, that the proposed project is not contrary to the public interest.
"Reasonable assurance" means a substantial likelihood of compliance with standards, or "a substantial likelihood that the project will be successfully implemented," not an absolute guarantee. Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3rd DCA 1992).
Blueprint provided reasonable assurances that its project will comply with water quality standards, will improve water quality, and will not be contrary to the public interest. Wetland impacts will be offset by mitigation.
Under rule 62-312.060(10), DEP must consider cumulative impacts to wetlands under section 403.919, Florida Statutes (1991). Since the proposed mitigation offsets the proposed impacts, and all mitigation is proposed to occur in the same drainage basin as the impacts, cumulative impacts are not an issue. See § 373.414(8)(b), Fla. Stat.
Petitioner contends in its PRO that “Blueprint could have requested initially that the Stormwater Permit application
be considered at the same time in a dual fashion with the [WRP] under rule 62-25.060,” but chose not to, and now Blueprint’s WRP modifies its SWGP.
The SWGP was issued under rule 62-25.801, which grants a general permit for the construction and operation of qualifying stormwater discharge facilities, including those that provide treatment for a specified volume of stormwater runoff. As such, the SWGP cannot be modified. Issues as to compliance with the SWGP are not part of this WRP proceeding.
48. Rule 62-25.060(1) provides:
Whenever the construction of a new stormwater discharge facility requires that a dredge or fill permit be secured pursuant to Rule 62-312.150 or 62-312.160, or Chapter 62-312, F.A.C., or whenever other rules of the Department require that a permit, Section 401 Federal Clean Water Act certification or other certification be secured, all applicable stormwater requirements under this chapter shall be reviewed as part of those permit applications. A separate permit application under this chapter shall not be required.
If the applicant requests a separate stormwater permit, the applicant must notify the Department of any other Department permits, exemptions, or certifications which have or will be requested for the project.
By its terms, this rule seems to apply when “the construction of a new stormwater discharge facility requires that a dredge or fill permit be secured . . . .” In addition, when that is the case, it just requires that applicable rule chapter 62-25
stormwater requirements be “reviewed as part of [the dredge and fill] permit applications.” That has been done in this case.
49. Notwithstanding differences between the engineering drawings supporting the SWGP application and the engineering drawings supporting the WRP application, Blueprint’s SWGP supports a finding that Blueprint’s WRP meets water quality requirements. The addition of the Gum Road and Swamp Fox facilities in the WRP does not increase the volume of stormwater runoff required to be treated and does not modify the SWGP. Likewise, the addition of stormceptors discharging to the west of the road does not modify the SWGP. Both additions will improve water quality. Discharging some runoff to the west of the roadway does not modify the SWGP because the culvert/wildlife crossings mix the surface water on either side of the road, and there is no change in where the system permitted by the SWGP discharges treated water.
RECOMMENDED that Blueprint’s WRP application, number 37- 0281978-002-DF, be granted and the WRP issued with the additional condition that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds and the stormceptors in the Gum Swamp
segment directing runoff away from Petitioner’s property, be constructed simultaneously with the rest of the project.
DONE AND ENTERED this 11th day of April, 2011, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2011.
Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection
Sidney L. Matthew, Esquire Post Office Box 1754 Tallahassee, Florida 32302
F. Joseph Ullo, Esquire Lewis, Longman & Walker, P.A.
Edwin A. Steinmeyer, Esquire Lewis, Longman & Walker, P.A. 2600 Centennial Place, Suite 100
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.
