The Issue The issue for disposition in this proceeding is whether, as alleged in an administrative complaint dated February 20, 1998, Respondent Craig J. Evans committed negligence in the practice of engineering when he erroneously determined that a real property parcel was not within the flood protection zone. If that violation occurred, an appropriate penalty must be recommended.
Findings Of Fact Respondent Craig J. Evans is and has been at all material times a professional engineer licensed in the State of Florida with license no. PE 0033652. He is currently practicing as a professional engineer, and is licensed as such, in St. Croix, U.S. Virgin Islands. In the approximate 15 years that Mr. Evans has been licensed as a professional engineer, the instant proceeding is the first disciplinary action or allegation of professional wrong-doing. In October 1992, Mr. Evans was engineer of record for a residence being built for his father on a parcel now designated as 1588 Chadwick Way, Tallahassee, Florida. On or about October 10, 1992, Mr. Evans signed and sealed a Leon County Flood Protection Certification for the Chadwick parcel in Killearn Lakes, Unit 3, Lot 3, Block B M. This certification was a necessary component of the local permitting process. In the certification Mr. Evans stated that the parcel was at or above the flood protection elevation. After the certificate was filed and the building permit was issued, Fred Varn, then a Leon County building inspector, spoke to Mr. Evans about the inspector's concern that the floor level of the house might be too low. Mr. Varn was aware that some other properties in the area had flooded. Mr. Evans responded that he felt the level was safe, but he was willing to listen and he raised the floor level approximately 16 inches. The house was built and Mr. Evans and his parents lived in it for a short time. It rained during that time and according to Mr. Evans, there was a little bit of flooding on the front of the property and a little of standing water in the back, but neither lasted long. Mr. Evans' parents put the Chadwick house on the market and Mr. and Mrs. George Simonof expressed an interest in purchasing it. In response to the Simonof's surveyor's concerns about flooding, Mr. Evans or his father faxed the October 10, 1992, certification to the Simonofs on June 30, 1994. The Simonofs, in turn, provided the certification to their surveyor and lender. On July 14, 1994, the Simonofs closed on their purchase of the Chadwick house. In early October 1994, Tallahassee experienced severe rainstorms. Between October 6-12, 1994, the Simonof's property on Chadwick flooded. With the help of friends and neighbors, they filled sandbags and placed them around the house. The house did not flood but the backyard was filled with standing water. Contrary to Mr. Evans' certificate, the property on Chadwick is within the flood protection zone. When he determined the location of the flood zone, Mr. Evans scaled from Federal Emergency Management Area (FEMA) maps to a plat map showing the lot's location. He erred in the plotting process, a common error, but one that a prudent engineer would be more careful to avoid. Initially, the Chadwick property appeared to Mr. Evans to be in the flood zone, so he rechecked his work by pulling certificates on two lots nearby and found they were not certified in the flood zone either. He was somewhat familiar with the property as he used to jog in the Killearn area. He had no personal knowledge of flooding there prior to his certification. Mr. Evans did not exercise due care in preparing his flood zone certification and was negligent in the practice of engineering. If he had checked his plotting, he would have realized there should have been more distance between his 2100 and 1600 feet lines. Further, in close cases, a survey should have been obtained. It was not sufficient that Mr. Evans attempted to check his work against two certifications of other lots in the area; he did not know the engineers who did the work and could not be certain of their certificates' relevance or accuracy. He did not speak with other property owners in the area nor did he seek information from Leon County staff who would be familiar with flooding problems. To Mr. Evans' credit he raised the house elevation upon query by the building inspector and the house did not flood. However, the buyers of the property relied on his erroneous certificate and suffered some loss due to the flooding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Engineers issue its Final Order finding Craig Evans guilty of negligence and assessing a fine of $750. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Department of Business and Professional Regulation Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0750 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Post Office Box 10426 Tallahassee, Florida 32302-0426
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: On May 3, 1989, Cersosimo submitted an application for a Management of Surface Water Permit to the District. Subsequent to the submission of this application, the Polk County Board of County Commissioner (Commissioners) added an additional requirement to Cersosimo's Planned Unit Development (PUD) that there was to be a pre- development/post-development match for basin runoff in the event of a twenty- four hour one hundred (100) year storm event, i.e. following completion of this project (post-development) it will handle the same outflow or flow of storm water for the twenty four-hour one hundred-year storm event as in a pre- development situation. Based on the Commissioners' requirement, the design of the PUD was amended to provide for the required storage capabilities. On July 26, 1990, Cersosimo submitted to the District, its amended application, Management of Surface Water Permit No. 405733.01 incorporating the changes necessitated due to the Commissioners' additional requirement as to storm water runoff. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County Engineering Division, noted in a letter of that same date referring to Cersosimo's modification of Retention Pond No. 300 for the project in question that "this revision appears to meet the PUD condition by the Board of County Commissioners for drainage and compliance with the Surface Water Management Ordinance". The application of July 26, 1990, amends the original application by superceding and replacing that application. In connection with the application for permit, soil borings were taken at the site location for the retention ponds in order to establish the elevation of the seasonal high water level (SHWL) for that site. The borings indicated an elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The District conservationally established the elevation for the SHWL of this particular site as 112 feet AMSL. The floor elevation of the lowest retention pond was established at 114.00 feet AMSL. The elevation of the surface of Lake Mabel for the ten year flood warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z), Florida Administrative Code. District policy requires the floor elevation of a dry retention pond to be a minimum of one foot above the established elevation of the SHWL of that particular site. Even though the surface elevation of Lake Mabel for the Ten Year Flood Warning Level was established as 114.50 feet AMSL, there is insufficient evidence to show that there was lateral migration of water from the lake's edge to the site of the soil borings such that it was evidenced by a demarcation in the soil profile. To the contrary, the evidence shows that there were demarcations in the soil profile to establish an elevation for the SHWL for this site of 110 feet to 112 feet AMSL. The designed weir crest in the lower retention pond, Pond No. 300, has an approximate elevation of 118.50 feet AMSL which prevents water from coming over the top into the pond in the event Lake Mabel reaches the ten year flood level warning elevation of 114.50 feet AMSL. The distance from the present water edge of Lake Mabel to the bottom of Pond No. 300 would be approximately 600 feet, laterally and if the lake reached the ten year flood level warning elevation of 114.50 feet AMSL, the lake's water edge would be approximately 100 feet laterally from the bottom of Pond No. 300. There was sufficient evidence to show that even if the surface elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention ponds as presently proposed with a floor elevation of 114.00 feet AMSL would still percolate sufficiently, even though the percolation may be diminished from what it would be under present conditions, so that there would still be a pre- development/post-development match for basin runoff. Cersosimo can give reasonable assurances that the surface water management system as presently proposed will not diminish the capabilities of Lake Mabel to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code. Among others, the following specific conditions in pertinent part will be placed on the permit, if granted: . . . The applicant shall visually monitor the ponds on a monthly basis to ensure that the ponds are dry within 36 hours from the end of the last rainfall event. Should the ponds fail to percolate the required water quality volume per District criteria, a permit modification shall be required. . . .
Recommendation Based upon consideration of the foregoing Findings of Fact and Conclusions of law, it is, recommended that the Southwest Florida Water Management District enter a Final Order granting the application for Management Surface Water Permit No. 405733.01, as proposed by the District. RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. The Petitioner did not submit any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by Respondent Cersosimo 1. - 7. Adopted in Findings of Fact 1-7, respectively. 8. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively. 11. Adopted in Findings of Fact 12 and 13. 12.-13. Adopted in Findings of Fact 13 and 11, respectively. Respondent District adopted Respondent Cersosimo's Proposed Findings of Fact, therefore the same rulings would apply as was applied to Respondent's Cersosimo's Proposed Findings of Fact above. COPIES FURNISHED: Catherine D'Andrea, Esquire Susan Dietrich, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Gary L. Gandy Omega Farm Post Office Box Omega Waverly, Florida 33887 Beach A. Brooks, Jr., Esquire Post Office Drawer 7608 Winter Haven, Florida 33883 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, FL 34609-6899
Findings Of Fact Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made: On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County, Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not Mr. Morro, owns the subject property. After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit. On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10. Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit. Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits. On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance Manager, to be held on May 19, 2003, "to discuss these issues with him in person." On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green. On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003. After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition. On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property. Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing." On October 24, 2003, Mr. Carlie responded to Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard." Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff. On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred. On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application." On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10. However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall. By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?" By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall. During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley. On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra. By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991, 1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time. According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall. On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control." On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than May 8, 2005. The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003. On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005. Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun. In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property. On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time. On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project. Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff. Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.") On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005 Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Arthur Hastings 708 Lincoln Avenue Leesburg, Florida John Wheeler, Esquire Post Office Box V West Palm Beach, Florida 33402 Granada Properties, Ltd. 341 North Mills Orlando, Florida
The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 11th day of April, 1997.
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for consumptive use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
