vs.
Case No. 16-0806
ST. JOHNS RIVER WATER MANAGEMENT DISTRICT AND 1044PVB, LLC,
Respondents.
The final hearing in this case was held on April 25 and 26, 2016, in Jacksonville, Florida, before Bram D.E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).
Josh Smith, Esquire Jane West Law, P.L.
St. Augustine, Florida 32080 For Respondent 1044PVB, LLC:
Eric Olsen, Esquire Amelia A. Savage, Esquire
Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
For Respondent St. Johns River Water Management District:
Karen C. Ferguson, Esquire
St. Johns River Water Management District 4049 Reid Street
The issue to be determined in this case is whether 1044PVB, LLC (“Applicant”), is entitled to Environmental Resource Permit (“ERP”) No. IND-109-143282-1 from the St. Johns River Water Management District (“District”), authorizing the construction of a surface water management system to serve a proposed residential development in St. Johns County, Florida.
On January 8, 2016, the District gave notice of its intent to issue an ERP to Applicant to construct a surface water management system for a proposed single-family subdivision (“the Project”). On January 29, 2016, Petitioner filed a petition challenging the proposed agency action. The District then referred the matter to DOAH to conduct an evidentiary hearing.
At the final hearing, Joint Exhibits 1–3 were received into evidence. Official recognition was taken of the Environmental Resource Permit Applicant’s Handbook (“Applicant’s Handbook”), Volumes I and II, as well as Florida Administrative Code Chapters 40C-4 and 62-330.
Petitioner presented the testimony of: Nancy Condron; Harold Wilkening, accepted as an expert in water resources engineering and stormwater management; and Dr. David Stites, accepted as an expert in aquatic ecology, environmental science, and applied biology. Petitioner’s Exhibits 3, 4, 15, 30, and 32 were received into evidence.
Applicant presented the testimony of: Rhodes Robinson, accepted as an expert in environmental science, ecology, biology, and wetland ecology; Thomas Welch, accepted as an expert in stormwater management systems and civil engineering; and Ki Pak, accepted as an expert in hydraulic modeling, flood plain analysis, hydrologic engineering, and hydraulic engineering.
Applicant’s Exhibits 1-4 were received into evidence.
The District presented the testimony of: Cameron Dewey, accepted as an expert in water resources engineering;
Walter Esser, accepted as an expert in wildlife ecology and wetland mitigation; and Everett Frye, accepted as an expert in water resources engineering. District Exhibits 1–4 were received into evidence.
The three-volume Transcript of the final hearing was filed with DOAH. Respondents submitted proposed recommended orders that were considered in the preparation of this Recommended Order.
Petitioner Nancy Condron is a resident and landowner in St. Johns County. Her residence is located across Ponte Vedra Boulevard from the Project.
Petitioner uses the nearby Guana River Wildlife Management Area for nature-based recreation, including hiking and bird-watching.
Applicant is a foreign limited liability company and the applicant for the ERP at issue in this case.
The District is an independent special district granted powers and assigned duties under chapter 373, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The Project is within the boundaries of the District.
The Project Site
The Project site is 17.13 acres located at 1044 Ponte Vedra Boulevard in St. Johns County, Florida.
The site currently consists of forested lands on the east and west and pasture areas in the middle. There is an existing trail road that runs the length of the property and a small residence.
The site has four small ponds excavated as watering holes, ranging in size from 0.04 to 0.24 acres.
There are 4.41 acres of wetlands and other surface waters on the site. There is a 3.49-acre area of mixed forested wetland on the site that continues offsite to the south and west. There are also three isolated wetlands on the site, each less than a half-acre in size.
The wetland system adjacent to the Project site flows to the Guana River. The Guana River is a freshwater, Class III waterbody. It is an Outstanding Florida Water, but has been designated by the Department of Environmental Protection as impaired for nutrients.
The site is not used by threatened or endangered species for feeding, nesting, or breeding.
The Project
The proposed Project is a 22-lot, single-family subdivision.
The proposed surface water management system for the Project includes curb and gutter paved roadways, storm inlets, concrete pipes, vegetated natural buffers, treatment swales, and a wet detention stormwater pond.
The wet detention stormwater pond would discharge into adjacent wetlands that flow to the Guana River.
Wetlands
The point of discharge from the Project’s stormwater management system is not in the designated Outstanding Florida Water.
Applicant proposes to fill the four ponds and the three isolated wetlands. Applicant also proposes to fill 0.28 acres of the larger wetland.
The Project includes a number of upland buffers that are a minimum of 15 feet in width and average of 25 feet in width. These buffers are intended to prevent potential adverse secondary impacts to adjacent wetlands.
All wetland impacts and mitigation were assessed using the Uniform Mitigation Assessment Method (UMAM) in Florida Administrative Code Rule 62-345. The UMAM assessment takes into consideration the location and landscape support, water environment, and community structure of the wetlands to be impacted. The District also considers the condition, hydrologic connection, uniqueness, location, and the fish and wildlife utilization of the wetlands and other surface waters.
The District did not require mitigation for filling the artificial ponds. The District also did not require mitigation for filling the isolated wetlands because each is less than a half-acre in size.
As mitigation for filling 0.28 acres of the larger wetland, Applicant would purchase 0.25 mitigation bank credits from the St. Marks Pond Mitigation Bank.
The St. Marks Pond Mitigation Bank is located in the same drainage basin as the wetland area that would be filled.
The District determined that purchasing the mitigation bank credits would offset the functional loss associated with filling part of the wetland.
Two areas on the site where no upland buffers are proposed were assessed for secondary impacts to wetlands in the UMAM evaluation.
The mitigation bank credits proposed for the Project would offset all of the adverse, direct, and secondary impacts to wetlands or surface waters associated with this Project.
Because direct and secondary impacts would be fully mitigated, the Project would not cause cumulative impacts.
Water Quantity
A majority of the Project’s stormwater runoff would be conveyed to the wet detention pond. The wet detention pond provides water quantity protection by attenuating the post- development peak rate of discharge.
Applicant modeled the pre-development peak rate of discharge and the post-development peak rate of discharge. The modeling indicated that the post-development peak rate of
discharge will not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event.
Section 3.3 of the Applicant's Handbook, Volume II, prohibits a reduction in the 10-year or 100-year floodplain for projects with an upstream drainage basin of five square miles or greater. The proposed Project has an upstream drainage basin of
4.6 square miles, so this criterion is not applicable.
Applicant showed the Project would increase offsite flood elevations by only 0.01 feet, which is negligible.
The Project would not cause adverse water quantity impacts to receiving waters or adjacent lands.
Water Quality
Water quality would be managed in the Project through a combination of wet detention pond, swales, and vegetative natural buffers (“VNBs”).
The wet detention pond would treat a majority of the runoff from the Project.
Section 8 of the Applicant’s Handbook, Volume II, contains presumptive criteria for the design of a wet detention pond. The proposed wet detention pond meets the presumptive criteria. Therefore, the detention pond is presumed to provide reasonable assurance that the water quality of receiving waters will be protected.
Applicant is proposing to construct swales at the back of Lots 20, 21, and 22 to treat runoff by infiltration.
Section 9 of the Applicant’s Handbook, Volume II, contains presumptive criteria for swale system design and performance. The Project meets the presumptive criteria for swales.
Applicant is proposing VNBs on Lots 1 through 14. The use of VNBs is a commonly-used best management practice accepted by the District for treating stormwater runoff. Like swales, VNBs treat runoff by infiltration.
Stormwater runoff from the backyards of Lots 1 through 14 would drain to the VNBs. On some of these lots, stormwater runoff from the front yards, side yards, and rooftops would also drain to the VNBs. The lots would be graded so that runoff would sheet flow to the VNBs to maximize their treatment function.
The VNBs would have native soils and plants. The VNBs would have Type A soils, which are well-drained soils that provide the highest rate of infiltration and the most permeability.
Petitioner contends that, because soil borings were not taken at the location of the VNBs, reasonable assurance was not provided that the VNBs would function as proposed. However, Petitioner did not show that the soils at the VNB locations were unsuitable soils. In addition, Applicant agreed to use Type A
soils in the VNBs. Therefore, reasonable assurance that the VNBs would have suitable soils was provided by Applicant.
Petitioner referred to a draft rule to support her contention that the proposed VNBs are not properly designed, but the draft rule has no controlling effect and is hearsay.
The Applicant’s Handbook does not contain presumptive criteria for VNBs. Applicant demonstrated that the VNBs would infiltrate 80 percent of the runoff from a three-year, one-hour storm event, which is the same treatment efficiency the District requires when swales are used. Reasonable assurance was provided that the VNBs would function as proposed.
Because the Project would discharge to wetlands that flow to the Guana River, a waterbody impaired by nutrients, section 2.2 of the Applicant’s Handbook, Volume II, requires Applicant to demonstrate there would be a net improvement in water quality with respect to nutrients.
Applicant performed a pollutant loading analysis using the BMPTRAINS model. The BMPTRAINS model is a generally-accepted tool used by stormwater engineers for this purpose.
The BMPTRAINS model incorporates the information about the pre- and post-development conditions associated with land use and impervious area. The model accounts for site-specific conditions, including the elevation of the groundwater table and storage capacity of the soil. The design of the surface water
management system is then incorporated into the model to estimate the pollutant removal efficiency and estimate the average annual pollutant load that will leave the site.
Applicant’s BMPTRAINS modeling indicated that the average annual post-development loading for total nitrogen and total phosphorus would be substantially less than the pre- development loading for those nutrients. Therefore, Applicant demonstrated the Project would result in a net improvement.
Operation & Maintenance
The Ponte Vedra Beach Preserve Homeowners Association would be the entity responsible for operation and maintenance of the stormwater management system.
The wet detention pond, swales, and VNBs would be located within an easement and maintained by the homeowner’s association.
Applicant and the Ponte Vedra Beach Preserve Homeowners Association have the ability to accept responsibility for the operation and maintenance of the Project.
Public Interest
An applicant for an ERP must demonstrate that a proposed project affecting wetlands and other surface waters would not be contrary to the public interest. This determination is made by balancing seven factors found in section 10.2.3(a) through (g) of the Applicant’s Handbook, Volume I.
Public interest factor (a) is whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others. There is no aspect of the Project that would affect public health, safety, or welfare, except the potential for flooding. Reasonable assurance was provided by Applicant that the Project would not cause flooding.
Factor (b) is whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The mitigation bank credits offset all of the potential adverse impacts that the proposed project would have on the conservation of fish and wildlife.
Factor (c) is whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The parties stipulated that the Project will not adversely affect navigation or cause harmful erosion or shoaling. The record evidence shows the Project will not adversely affect the flow of water.
Factor (d) is whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The Project would not affect fishing or recreational values in the vicinity. The mitigation bank credits offset all of the potential adverse
impacts the proposed project would have on marine productivity in the vicinity.
Factor (e) is whether the regulated activity will be of a temporary or permanent nature. The activities are of a permanent nature. The mitigation is also permanent.
Factor (f) is whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources. The Project will have no effect on historical and archaeological resources.
Factor (g) is the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The relatively small loss of functional value would be offset by the proposed mitigation.
Considering and balancing these seven factors, the Project would not be contrary to the public interest.
CONCLUSIONS OF LAW
Standing
In order to have standing, a petitioner must have a substantial interest that would be affected by the proposed agency action. See § 120.52(13)(b), Fla. Stat. Standing requires a petitioner to show that he or she will suffer an injury in fact which is of sufficient immediacy, and the injury is of a type or nature which the proceeding is designed to
protect. See Agrico Chem. Co. v. Dep’t of Envtl. Reg., 406 So.
2d 478, 482 (Fla. 2d DCA 1981).
The preponderance of the evidence shows the Project would not affect Petitioner’s substantial interest in recreating on the Guana River and surrounding area. However, Petitioner presented evidence to show her interest could be affected, which is sufficient to establish her standing in this proceeding. See
St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist.,
54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).
Burden and Standard of Proof
The ERP was issued under chapter 373. A petitioner challenging a permit issued under chapter 373 has the burden of ultimate persuasion after the applicant has presented its prima facie case for entitlement to the permit by entering into evidence the application, relevant material supporting the application, and the agency staff report or notice of intent to issue the permit. See § 120.569(2)(p), Fla. Stat. Applicant
presented a prima facie case for entitlement to the ERP. Therefore, the burden of ultimate persuasion was on Petitioner to prove her case in opposition to the permit.
After a permit applicant has met its prima facie burden, a challenger cannot meet its burden of ultimate persuasion merely by showing that the Applicant’s information does not preclude the possibility of contrary physical factors or effects. The
challenger must prove the existence of the contrary factors or prove that the contrary effects are more likely.
In this case, for example, it was not enough for Petitioner to offer evidence that Applicant’s soil borings were not adequate to preclude the possibility that the soils in the VNBs and swales were not suitable soils. Petitioner had to prove the soils were not suitable. She failed to do so.
The standard of proof is preponderance of the evidence.
See § 120.57)1)(j), Fla. Stat.
The conditions for issuance of an ERP are contained in rule 62-330.301, rule 62-330.302, and the Applicant's Handbook. To demonstrate entitlement to the ERP, Applicant must provide reasonable assurance that the Project will meet the applicable criteria in these rules.
The term "reasonable assurance" means a demonstration that there is a substantial likelihood of compliance with standards. See Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So.
2d 644, 648 (Fla. 3d DCA 1992). It does not mean absolute guarantees.
Rule 62-330.301(1)(a) requires that construction, operation, and maintenance of the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(b) requires that construction, operation, and maintenance of the Project will not cause adverse flooding to on-site or off-site property. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(c) requires that construction, operation, and maintenance of the Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(d) requires that the construction, operation, and maintenance of the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(e) requires that the construction, operation, and maintenance of the Project will not adversely affect the quality of receiving waters such that the state water quality standards set forth in that rule will be violated. The absence of presumptive criteria specifically for VNBs does not prevent an analysis and determination, using accepted scientific and engineering methods, whether water quality will be adversely affected. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(f) requires that construction, operation, and maintenance of the Project will not cause adverse secondary impacts to the water resources. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(i) requires that construction, operation, and maintenance of the Project will be capable, based on generally accepted engineering and scientific principles, of performing and functioning as proposed. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.301(1)(j) requires that construction, operation, and maintenance of the Project will be conducted by a person with the financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The preponderance of the evidence shows compliance with this requirement.
Rule 62-330.302(1)(a) requires a demonstration that the Project is not contrary to the public interest. Applicant made this demonstration.
RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. IND-109-143282-1 to 1044PVB, LLC, with the conditions set forth in the Technical Staff Report dated April 11, 2016.
DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016.
Karen C. Ferguson, Esquire
St. Johns River Water Management District 4049 Reid Street
Jane West, Esquire Josh Smith, Esquire Jane West Law, P.L.
6277 A1A South, Suite 101 St. Augustine, Florida 32080 (eServed)
Eric Olsen, Esquire Amelia A. Savage, Esquire
Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed)
Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water Management District 4049 Reid Street
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.
