Findings Of Fact Application No. 76-00450 is for a consumptive use permit from 10 wells located in Hillsborough County, to be used for public water supply for the City of Temple Terrace. The permit seeks to withdraw 2.028 million gallons a day average annual withdrawal and 4.564 million gallons per day maximum daily withdrawal. The sought for withdrawal may affect other wells by drawdown of an average of 1" in a surrounding well. Such a drawdown will not seriously and adversely affect the surrounding wells. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flowmeters of a type acceptable to the district on all withdrawal points covered by the permit. That the applicant shall record the pumpage on a weekly basis and shall submit a record of that pumpage to the district quarterly beginning January 15, 1977. All individual connections supplied by withdrawals permitted will be metered. Records of meter readings will be made available to the district upon request. That the permit shall expire on December 31, 1980.
The Issue The issue is whether to approve an application by Respondent, I.M. Collier, J.V. (Collier), to modify its Environmental Resource Permit (ERP) No. 11-02031P (2002 Permit) by changing the surface water management system (SWMS) for a proposed residential and golf course development in Collier County (County), Florida, known as Mirasol.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties National Audubon Society, Inc. is a not-for-profit corporation (incorporated outside the State of Florida) while Collier County Audubon Society, Inc., Florida Wildlife Federation, and Conservancy of Southwest Florida are Florida not-for-profit corporations. All are environmental organizations. Franklin Adams is a resident of the County and a member of each of the above organizations. Respondents have not contested Petitioners' standing based upon the stipulated facts set forth in the parties' Pre-Hearing Stipulation. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. Collier is the holder of the 2002 Permit authorizing the construction of a SWMS to serve the Mirasol project, a large development located in the County. The parties have stipulated that Collier has the administrative, legal, and financial capabilities to undertake the proposed activity. Fla. Admin. Code R. 40E-4.301(1)(j). The Project Site The Mirasol project consists of approximately 1,713.45 acres located on the north side of Immokalee Road and the Cocohatchee Canal (Canal) in the northern half of the County, approximately three miles east of the intersection with Interstate 75. The property spans three sections of land, the northern third of the property encompassing Section 10, the middle third encompassing Section 15, and the southern third encompassing most of Section 22. The site also includes a peninsula of land extending east of Section 10, encompassing the northernmost quarter of Section 11. The site is bounded on the south by the Canal and Immokalee Road and on the east by an existing residential development known as Heritage Bay, which was previously a rock- mining quarry. To the west of the site, running north to south, are two other proposed residential developments known as Parklands Collier and Terafina/Saturnia Falls and an existing residential and golf course community known as Olde Cypress. There are other existing and proposed residential developments and farm fields to the north of the site. The site is located southwest of the Corkscrew Swamp Sanctuary (Corkscrew Swamp), which is owned by the National Audubon Society, Inc., and appears to stretch from Immokalee (in the northeastern part of the County) south and southwestward through parts of the County. Corkscrew Swamp sits roughly at the center of a 315-mile watershed, much of which is comprised of short hydroperiod wetlands which dry down completely during the late winter and spring and become inundated again in the late summer and fall during the wet season. This water gradually sheet flows down a very slight downhill gradient toward the south and west. A portion of the sheet flow travels southwest in the vicinity of the site. The region has experienced occasional floods, the most severe of which occurred in 1995. At the direction of the District, the cause of the flooding was investigated in the South Lee County Watershed Study (Study), which concluded that the watershed discharges through a variety of outfalls, but that historic connections to downstream conveyances like the Canal were severed by the construction. While downstream conveyances exist, the Study concluded that connections between upstream flows and downstream conveyances should be enhanced or restored. In the late 1990s, the Canal was improved to increase its conveyance capacity. A berm was constructed by the Big Cypress Basin Board (Basin Board), a legislatively-created entity which manages water resources in the County, on the northern bank in the vicinity of, and across from, the Mirasol site. This berm prevented historic wet season sheet flow from reaching the Canal through the project site, except for a few culverts located along that water body. The Basin Board also built a 1,000-foot-long hardened concrete weir on the north side of the Canal a few thousand yards west of the project site. This weir provides the primary outlet for sheet flow in and around the Mirasol site. Currently, upstream drainage flows in a southwesterly direction across Section 10. As the water moves south to the Canal, the flow becomes constricted down to a 580-foot wide gap between the Olde Cypress residential development and commercial developments along Immokalee Road to the east. This constricted area further narrows to a 270-foot wide opening before the sheet flow reaches the 1,000-foot weir and discharges into the Canal. During a 3-day, 25-year storm event, a combined peak flow of 553 cubic feet per second (cfs) of water is discharged into the Canal through the 1,000-foot weir, but the Mirasol property only conveys a small portion of this water (around 20 cfs) through culverts in the Canal berm. Most of the water flows to the west of Mirasol where it passes through the narrow gap and over the 1,000-foot weir. Around 1,431 acres of the 1,714-acre site are jurisdictional wetlands. However, these wetlands are in poor condition due to existing impediments to sheet flow, artificially high water levels during the wet season, and heavy infestation of exotic species, principally melaleuca. Permit History In February 2002, the District issued the 2002 Permit approving the construction of a SWMS to serve two 18-hole golf courses, a single-family residential community, a golf course clubhouse and parking area, golf course maintenance facilities, sales facility, and parking area. The issuance of the 2002 Permit was not challenged. The SWMS included a 36.5-acre flow-way (Flow-Way) that encircled the northern boundary of the development in Section 15 and extended off-site and across adjacent properties to the west. (If constructed, the Flow-Way would be a 200-foot wide, 4-foot deep, 89-acre channel, more than half of which would have been located on the Saturnia Falls/Terafina and Olde Cypress properties.) Besides providing a conveyance function for the Mirasol site, the Flow-Way also enhanced flood protection for other properties by accelerating conveyance of floodwaters to the Canal and reducing peak flood stages by 0.4 feet during a three-day, 25-year storm event. The District included Special Condition 26 in the 2002 Permit, which required construction of the Flow-Way before the remainder of the project could be constructed. The 2002 Permit authorized Collier to directly impact (fill or excavate) 568.66 acres of wetlands within the footprint of the development. Additionally, 39.5 acres of wetlands, which were isolated remnant strips along the golf courses within the development, were considered secondarily impacted and assessed a thirty-three percent reduction in functional value. Mitigation for the project consisted of preservation and enhancement of wetlands and uplands on site. Enhancement of the preserve areas was primarily credited to the eradication of malaleuca and other exotic species and replanting with appropriate native vegetation. Permit conditions required management of the preserve areas to prevent a recurrence of exotic species. The preserve areas included an 846.95-acre external preserve area to the north and northeast of the area to be developed. It was anticipated that this northern preserve area would ultimately be donated to an existing mitigation area known as the Corkscrew Regional Ecosystem Watershed, along with an interest-bearing fund to ensure perpetual management. In December 2005, the United States Army Corps of Engineers (Corps) denied Collier's federal wetlands permit application for the project and the Flow-Way. Because of this denial, in May 2006 Collier submitted an ERP application with the District seeking to modify the 2002 Permit by revising the SWMS and removing the Flow-Way. On October 12, 2006, the District Governing Board approved a modification to the 2002 Permit, which authorized an alternate SWMS to serve the golf course and residential development (2006 Permit). Petitioners' challenge to the proposed modification followed. The 2006 Modification Because of the Corps' denial of its application, Collier was required to remove the Flow-Way and redesign the project's SWMS. The most substantial change in the project was the removal of the Flow-Way and associated control structures and its replacement with a series of interconnected lakes running from north to south through the property allowing for the pass-through of surface waters from the area north of the development site into the Canal. The modification does not alter the boundaries and location of the development. However, the revised SWMS includes: five controlled basins with a total area of 718.43 acres, each of which provides treatment of stormwater prior to discharging into the pass-through system; 45.16 acres of interconnected lakes serving as a pass-through for surface waters from the north; 2.12 acres of perimeter berm backslope/ buffers/spreader swales; and 7.27 acres along the Canal for the existing 100-foot wide canal easement and proposed canal contouring. These changes also required elimination of the 39.5 acres of remnant wetlands inside the development that had previously been assessed as secondarily impacted. Also, there were 0.68 acres of additional impacts resulting from slight changes in the internal site design due to the SWMS. To partially offset these impacts, the internal wetland preserves were enlarged by 13.32 acres. The remaining impacts were mitigated with mitigation credits from the Panther Island Mitigation Bank (PIMB). (The PIMB holds a mitigation bank permit issued by the District for a wetland restoration project in Southwest Florida.) The main preserve was left unchanged, except that 36.5 acres previously dedicated to construction of the Flow-Way will be added to the main preserve and similarly enhanced and preserved. In summary, as modified under the 2006 Permit, the total onsite mitigation consists of the preservation and enhancement of 830.89 acres of wetlands, preservation of 109.58 acres of uplands, and the purchase of a total of 5.68 credits from the PIMB. At hearing, Collier also agreed to purchase from the PIMB an additional 5.68 credits within the Basin for a total of 11.36 credits. The ERP Permitting Criteria To obtain an ERP, an applicant must satisfy the conditions in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality, while the second rule generally requires that a public interest balancing test be made, that cumulative impacts, if any, be considered, and that the District consider past violations, if any, by the applicant of District or Department of Environmental Protection (DEP) rules. (The parties have cited no prior violations by the applicant that should be considered.) Besides these two rules, a number of BOR provisions which implement the rule criteria must also be taken into account. If an applicant proposes to modify an existing ERP, as it does here, Florida Administrative Code Rule 40E-4.331(2)(a) comes into play and requires that the District review the application to modify the ERP "using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification." Under this rule, those portions of the project altered or affected by the modification are reviewed under the current ERP criteria, but otherwise the 2002 Permit is not the subject of review in this case. Therefore, the District's review includes only that portion of the existing permit that is proposed to be modified or affected by the modification. In this case, the 2006 design is very similar to the 2002 design, and the project's footprint, control elevations, roadway network, southern outfall, and main preserve are unchanged. However, as pointed out below, since most of the engineering-related components of the SWMS were affected by the Flow-Way's removal, the District reassessed the hydrologic components of the internal water management system and the pass- through lake system for levels of flood protection and water quality treatment. Because most of the engineering-related components of the SWMS for the project were modified as a result of the removal of the Flow-Way, the District staff reassessed the project's hydrologic calculations associated with levels of flood protection and reassessed the project's water quality treatment volumes applying the currently existing ERP criteria. As to wetland impacts and mitigation, review of the wetland impacts for the 2006 Permit was limited to an analysis of additional wetlands impacts associated with the modification. This was primarily the elimination of the previously permitted, secondarily impacted wetlands. Thus, only the additional wetlands impacts due to the revised SWMS are considered under the currently existing ERP criteria. The 2006 Permit made only slight changes to the project's wetland impacts and mitigation components authorized under the 2002 Permit. The project's footprint was not changed and the main mitigation area (the Northern Preserve) was unaffected by the changes except that 36.50 acres were actually added to that preserve as a result of the removal of the Flow- Way. Collier did not receive any credit in its mitigation analysis for the additional acreage that will become part of the preserve due to the removal of the Flow-Way. Surface Water Management Criteria As noted above, the ERP criteria in Florida Administrative Code Rule 40E-4.301 focus primarily on three areas of concern: water quantity, environmental impacts, and water quality. Related BOR provisions must also be considered. These areas of concern are discussed below. Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that an applicant provide reasonable assurance that the construction of a SWMS "[w]ill not cause adverse water quantity impacts to receiving waters and adjacent lands." BOR Section 6.2 implements that provision and requires that a project be designed so that it is consistent with the downstream carrying capacity of the receiving waters. In other words, it must not exceed the capacity of downstream receiving waters, which in this case is the Canal. In making this determination, Section 6.3 of the BOR requires that the 25-year, 3-day design storm event be used. Collier complied with this requirement through an extensive hydrologic study conducted by its expert, Richard S. Tomasello, a former District employee. Applying a hydrologic model simulation known as S2DMM, the witness determined the appropriate amount of upstream sheet flow that would need to be routed through the project to avoid adverse water quantity and flooding impacts and calculated the correct dimensions of the intake weir to admit that flow into the project's pass-through system. The S2DMM model is a combination of other accepted models including the Sheet 2d, Massmod, and MBR models, which were developed by Mr. Tomasello, and they have been evaluated and used by the District on numerous occasions. In addition, the S2DMM model has been used for other flood studies in Collier and Lee Counties, and it will be used on a restoration project in Martin County. Based upon Mr. Tomasello's analysis, Collier incorporated a 100-foot-long intake weir with a crest elevation of 14.95 NGVD (National Geodetic Vertical Datum) along the northern boundary of the project to maintain existing upstream water elevations. Collier also complied with BOR Section 6.3, which requires the use of a 25-year, 3-day storm event to be used when computing the discharge rate for the project. The modified intake weir on the northern boundary includes two 3.5-foot wide rectangular notches set at an elevation of 14.00 NGVD, which will provide a "base flow" of up to 20 cfs into the pass-through lakes to mimic the current flow through the property. The determination of this base flow was made through an analysis of the existing culverts at the southern end of the property. While not required by the ERP criteria, Collier also performed a long-term analysis (using a four-year period of record) of the SWMS's effect upon water levels. This analysis demonstrated that the modified system would leave water levels in the wetland areas upstream of the project unchanged during normal rainfall and low-flow periods. This analysis provides additional assurances that the modifications to the SWMS will not affect the Northern Preserve. While Petitioners questioned the accuracy and reliability of the hydrologic study, and its specific application to this project, the criticisms are considered to be vague and unsubstantiated. As noted above, the model has been previously accepted for use in South Florida, and Petitioners' expert conceded he did not have enough information to determine the model's accuracy. The more persuasive evidence established that the hydrologic study submitted by Collier included the relevant available data and was prepared by competent professionals knowledgeable in the field. The claim of Petitioners' experts that they lacked sufficient information to form an opinion on the accuracy of the modeling is not a sufficient basis to overcome the evidence submitted by Collier to meet this criterion. The project's discharge rate in 2006 will not exceed what was permitted in the 2002 Permit. During the 25-year, 3-day storm event, the existing discharge from the project site and the natural area west of the project site into the Canal is 553 cfs. Based on modeling of the modified SWMS, the total discharge from the pass-through system will be 529 cfs, or 24 cfs less than the project's existing pre-development discharge. The discharges resulting from the project as modified in 2006 will not exceed the capacity of the Canal as required by Section 6.3 of the BOR. Accordingly, Collier has provided reasonable assurance that the discharge rate allowed for its project would not be exceeded, as required in Section 6.2 of the BOR. Section 6.8 of the BOR requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving water bodies are not being adversely affected. Collier complied with this provision by conducting the hydrologic analysis using the 25-year, 3-day design storm event, which demonstrated that the discharge rate would be directed to the southern discharge point allowing for the passage of drainage from offsite areas to the downstream areas. The evidence also shows that the current predominant sheetflow from areas outside the project passes through a narrowly constricted area west of the project and discharges into the Canal over an existing concrete weir. See Finding of Fact 9, supra. Only a small portion of the upstream waters currently discharge through the Mirasol site. Petitioners' allegation that the construction of the project will further constrict the sheetflow area is rejected, as the constriction of sheetflow will continue to exist whether the project is built or not. The evidence also shows that the project will not further constrict the flow because it will allow for the pass-through of water from outside the project area. Under the 2002 Permit, the Flow-Way was designed to aid in the diversion of upstream flows around the project. Under the 2006 modifications, the pass-through lake system will convey up to forty percent of the upstream flow through the development which complies with the provisions of Section 6.8 of the BOR. As indicated above, during periods of lower water levels, the notches in the weir along the northern boundary will allow for the flow to pass onto the project site consistent with existing conditions. During major storm events, water will pass over the weir into the pass-through lake system to be conveyed to the Canal. Therefore, Collier has provided reasonable assurance that the criteria in Section 6.8 have been met. Section 6.10 of the BOR requires that the project be designed to conserve water and site environmental values and not lower the water table or groundwater or over-drain wetlands. Section 6.11 of the BOR provides that the control and detention elevations for the project must be established at elevations to accomplish the objectives of Section 6.10. The latter section is adhered to when the control elevations proposed for a project are established consistent with the onsite wetland conditions. In this case, the control elevations for the wetlands and surface water management lakes are essentially the same as the design in the 2002 Permit. Collier has set the control elevations above the average wet season water table (WSWT) for the area, thereby ensuring that the SWMS will not over-drain and will conserve fresh water. Section 6.11 of the BOR addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. The SWMS design control elevation maintains the detention component and the control (wetland protection) elevations in the previously approved SWMS. The control elevations were set by the design engineers in consultation with Collier's wetland ecologist taking into account the ground elevations and biological indicators. The control elevation for the pass-through system and internal drainage basins work in conjunction with the control elevation along the northern boundary of the project and the control elevation for the discharge point along the southern boundary to ensure that the project does not overdrain the wetlands and to preserve the project site's environmental values. By setting the control elevation above the WSWT, the design ensures that the wetlands will not be drawn down below the average WSWT and the SWMS will not over-drain them. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, based on the control elevations, the water table is not expected to be lowered so there should be no effect on the existing rights of others. Collier must further demonstrate that the site's groundwater recharge characteristics will be preserved through the design of the SWMS. Collier complied with this requirement by setting the control elevations above the average WSWT, allowing standing water in the wetland preserves to recharge the groundwater. The ability of the SWMS to accept flows from the Northern Preserve conserves freshwater by preventing that water from being discharged downstream. The SWMS leaves water elevations in the Northern Preserve unchanged. Consequently, water will remain in the wetlands for the same duration and elevations as in the existing conditions, thereby preserving groundwater recharge characteristics. Section 6.12 of the BOR prohibits lake designs that create an adverse gradient between the control elevations of the lakes and the adjacent wetlands. To satisfy this requirement, Collier set all control elevations at 13.4 - 13.5 NGVD while controlling the internal wetland preserves at a slightly higher elevation. Consequently, there is no adverse gradient and no potential for an adverse effect upon the internal preserves from adjacent lakes. Petitioners argued that the pass-through system would quickly lower water levels in the internal wetland preserves. However, the internal wetlands are still protected from drawdown because there are control structures set at or above the wet season elevation between the pass-through lakes and internal wetlands. They also argued that the internal wetlands would be overdrained during the dry season by the deep lakes. However, no witness presented any real analysis to back up this contention. Indeed, the pass-through lakes are only twelve feet deep, and the wetlands are separated from all the lakes by protective berms to avoid any drawdown. In summary, Collier has provided reasonable assurances that the proposed modification in the 2006 Permit will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not exceed the capacity of the downstream receiving waters (the Canal). Flooding Florida Administrative Code Rule 40E-4.301(1)(b) requires Collier to demonstrate that the project "[w]ill not cause adverse flooding to on-site or off-site property." BOR Section 6.4 sets forth criteria and standards for implementing this requirement and provides that building floors be designed to be protected from a 100-year, 3-day storm event. BOR Section 6.5 provides criteria and standards for flood protection for the project's roads and parking lots. Collier complied with these provisions by providing construction plans demonstrating that the building floors and roads will be built higher than the 100-year, 3-day storm event. BOR Section 6.6 provides that a project may not result in any net encroachment into the 100-year floodplain. Collier was also required to comply with the historic basin provision in Section 6.7 of the BOR, which requires the project to replace or otherwise mitigate the loss of historic basin storage provided by the site. The level of encroachment into the 100-year flood plain and loss of historic basin storage attributed to the project are essentially unchanged from the 2002 design. The only difference between the 2002 Permit and the 2006 Permit is how the conveyance of flood water is provided. In 2002, the Flow-Way served this function, while the pass-through system provides it in the 2006 Permit. Collier's flood simulations demonstrated that the project will not alter flood stages during the 25-year and 100- year design storms, while the testimony of witnesses Tomasello and Waterhouse established that the project will not have adverse flooding impacts on adjacent properties, either alone or in conjunction with neighboring developments. Storage and Conveyance Florida Administrative Code Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development "[w]ill not cause adverse impacts to existing surface water storage and conveyance capabilities." This criterion is closely related to paragraph (1)(b) of the same rule, which prohibits adverse flooding to onsite or offsite property. Section 6.6 of the BOR implements this provision and specifies the parameters for applying this criterion and prohibits a net encroachment between the WSWT and the 100-year event which will adversely affect the existing rights of others. Collier addressed this criterion through the hydrologic analysis submitted. As previously found, that model is the appropriate model to determine flood stages and to calculate the floodplain. Engineering Design Principles Florida Administrative Code Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS "[w]ill be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Section 7.0 of the BOR contains the specific standards and criteria to implement this rule. The evidence demonstrates that the SWMS is based on generally accepted engineering and scientific principles and is capable of performing and functioning as proposed. Section 8.0 of the BOR includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the design, Collier complied with Section 8.0. Water Quality Impacts Florida Administrative Code Rule 40E-4.301(1)(e) requires that the proposed modification "[w]ill not adversely affect the quality of the receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated." Stated more plainly, the proposed modifications must not adversely affect the quality of the Canal's waters such that State water quality standards will be violated. Section 5.2 of the BOR describes the District's standard water quality criteria. This provision, which requires a minimum of one-inch detention of stormwater, is referred to as a "presumptive criteria" because it is presumed that if an applicant provides the required one inch of detention, it meets Class III water quality standards, thereby satisfying the rule. As it did under the 2002 Permit, Collier satisfies the presumptive criteria with the 2006 design by providing the one- inch wet detention in its lake system. In fact, the system is designed to provide one and a half inches of treatment in the lake system thereby providing additional treatment. The receiving body of water for the project is the Canal. When the 2002 Permit was issued, the Canal was classified as a Class III water body. It is now classified by DEP as impaired for iron and dissolved oxygen. Because of this new classification, Collier must now comply with Section 4.2.4.5 of the BOR, which reads as follows: If the site of the proposed activity currently does not meet water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. Collier demonstrated that neither short-term (during construction) nor long-term (during operation) water quality impacts will occur. It complied with the short-term requirements by submitting a Construction Pollution Prevention Plan detailing how water quality will be protected during the construction process. As to long-term impacts, the Terrie Bates Water Quality Memorandum (Bates Memo) prepared by District staff on June 11, 2004, provides guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired water body. The document sets forth a number of design and operational criteria for the types of additional measures that can be incorporated into a project design to provide the necessary reasonable assurance. The Bates Memo suggests that an additional fifty percent of treatment be incorporated into a SWMS. Collier complied with this suggestion by designing the treatment lakes to provide an additional one-half inch of treatment for the additional fifty percent treatment. In addition to the one and one-half inch treatment, Collier is implementing six of the seven items the Bates Memo lists as potential options to consider. The long-term water quality requirement is addressed by Collier, in part, through an Urban Stormwater Management Plan, which details various source controls or best management practices to be implemented once the project is built and operating. Best management practices assist in ensuring that pollutants will not enter into the lake system. Collier is also implementing a stormwater pollution prevention plan and will utilize the lake system for additional treatment downstream. Collier has further agreed to planting the littoral zones as part of its design of the treatment lakes to provide additional pollutant removal. The design calls for an amount of littoral zones equal to twenty percent of the surface area of the treatment lakes. Collier has agreed to make a Water Quality Monitoring Plan a permit condition, even though such a condition was not included in the staff report. See Collier Exhibit 25. The Bates Memo includes as an option for meeting the long-term requirement a site-specific water quality evaluation of pre vs. post-development pollutant loadings. Collier has presented several such analyses, all of which indicate the post- development pollutant discharges from the site will be less than the pre-development. Mr. Barber prepared a pre vs. post- analysis using a 2003 methodology developed by Dr. Harper. The 2003 version of the Harper methodology is currently accepted by the Corps. (Although Petitioners' witness, a former Corps employee, suggested that the Corps' acceptance of the study was a "political" rather than a scientific decision, there is insufficient evidence to support this contention.) Besides his first analysis, at the direction of the District staff, Mr. Barber prepared a second analysis using the 2003 methodology with certain conservative assumptions that limited the pollutant residents time to fifty days and utilized lower starting concentrations for phosphorous and nitrogen than were recorded in the nearby monitoring stations. Based upon those reports, the District's staff concluded that Collier had provided reasonable assurances that the project met the criteria in BOR Sections 5.2 and 4.2.4.5. At the hearing, Mr. Barber presented a third analysis utilizing an updated methodology developed by Dr. Harper in February 2006. The 2006 methodology was developed after Dr. Harper conducted a study of water management district criteria throughout the state for DEP. All three of the analyses prepared by Mr. Barber concluded that the project would discharge less nitrogen and phosphorous into the receiving body in the post-development condition than is currently being discharged in the pre-development condition. In addition to the three water quality submittals from Mr. Barber, Collier provided an additional water quality analysis specific to the project prepared by Dr. Harper. See Collier Exhibit 26, which is commonly referred to as the Harper Report. The analysis evaluated the project's pre vs. post- development water quality loads and also concluded the project would not contribute to the impairment of the Canal. In preparing his analysis, Dr. Harper relied solely on the lakes for estimating removal of pollutants without accounting for any of the additional treatment expected to occur from the source control best management practices contained in the Urban Stormwater Management Plan, which means his report errs on the conservative side. The Harper Report concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/L. Petitioners presented no specific evidence to counter these conclusions. Petitioners questioned the Harper Report's use of wetlands as part of the loading calculations and attacked his underlying methodology. However, the evidence is clear that wetlands contribute to the water quality constituents in the pre-development condition. This finding is based on data from monitoring stations located in the middle of Corkscrew Swamp, a statewide study on stormwater treatment and wetlands, and the United States Environmental Protection Agency's (EPA) assignment of nutrient loading rates to wetlands in its regional pollutant loading model. Ignoring the actual water quality in pre-development conditions would not be a true pre vs. post-development analysis. Finally, Petitioners' contention that the Harper methodology should not be considered as admissible evidence because it constitutes "novel" (and therefore unreliable) scientific evidence under the rationale of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), has been rejected. To begin with, the Frye test has not been accepted in Florida administrative proceedings. Moreover, the methodology is the basis for a new statewide rulemaking effort, has been accepted by the EPA, the Corps, and by the Division of Administrative Hearings in at least two proceedings, and has been subjected to two peer reviews. Petitioners also alleged that Collier failed to show that it complied with Florida Administrative Code Rule 62- 40.432(2)(a)1., a rule administered by DEP which requires that a new SWMS "[a]chieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards." However, this is a broad overstatement of DEP's rule. Also, there is no eighty percent removal efficiency requirement adopted or incorporated into any District rule or BOR criteria. See, e.g., Conservancy of Southwest Florida, Inc. v. G.L. Homes of Naples Associates II, LTD et al., DOAH Case No. 06-4922 (DOAH May 15, 2007, SFWMD July 11, 2007). Instead, the District's "presumptive criteria" is that one inch of volumetric treatment required in Section 5.2 of the BOR meets the Class III standards. If, as in this case, additional assurances are required, those assurances are met through implementation of the BOR Section 4.2.4.5. Finally, Florida Administrative Code Rule 62-40.110(2) provides that Rule Chapter 62-40 is "intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Also, Florida Administrative Code Rule 62- 40.110(4) states that "[t]his chapter, in and of itself, shall not constitute standards or criteria for decisions on individual permits. This chapter also does not constitute legislative authority to the Districts for the adoption of rules if such rules are not otherwise authorized by statute." Even if an eighty percent reduction standard applied, Collier has demonstrated that the project very likely will remove eighty percent or more of pollutants when additional low-impact development techniques, pollutant source reduction practices, and additional uncredited wet and dry detention capacity are considered. Based upon the evidence presented, Section 4.2.8 of the BOR regarding cumulative impacts for water quality is not applicable in this case. Collier's submittals provide reasonable assurances that the project will not be contributing to the water quality impairment of the Canal or contribute to any other water quality violation. Indeed, the information submitted indicates there will be an incremental improvement in the post-development condition as compared to existing. Since no contribution or impacts to water quality are expected, a cumulative impact analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, demonstrates that the 2006 Permit will not adversely affect the quality of receiving waters such that state water quality standards will be violated. Therefore, reasonable assurance has been given that Florida Administrative Code Rule 40E-4.301(1)(e) will be satisfied. Wetland Impacts Florida Administrative Code Rule 40E-4.301(1)(d) requires Collier to provide reasonable assurance that the modification of the SWMS "[w]ill not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." In determining whether this criterion has been satisfied, it is also necessary to determine whether any 2002 permitted impacts should be subject to a second review in this case. Mitigation is a method by which an applicant can propose to impact certain wetlands on the project site in exchange for providing compensation in the form of preserving, enhancing, restoring, or creating wetlands or uplands to offset those impacts. As noted earlier, there has been no change to the wetland impacts or mitigation proposal as it relates to the Northern Preserve. See Findings of Fact 27 and 28, supra. As a result of the modified SWMS, there has been some additional impact to wetlands within the development area of the project. An additional 40.18 acres will be impacted under the 2006 Permit mostly due to the modified SWMS system. However, 39.5 acres of those wetlands were already considered secondarily impacted under the 2002 Permit. In addition, the preserve areas were expanded by 13.32 acres in the 2006 design. Thus, a portion of the impacts to those wetlands was already factored into the mitigation plan that was developed and approved for the 2002 Permit. As a result, there are 26 acres for which mitigation is necessary under the 2006 Permit. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Collier has proposed an acceptable mitigation plan for the new wetland impacts that will result from the project due to the proposed modifications incorporated in the 2006 Permit. Except for the mitigation for the additional wetland impacts, the mitigation plan for the 2006 Permit remains essentially unchanged from the 2002 Permit, including the Grading and Planting Plan, Monitoring Plan, and Mitigation, Monitoring, and Maintenance Plan. The onsite mitigation proposal includes preservation and restoration of wetlands through the removal of melaleuca and other exotic plants and replanting in areas of dense exotic species coverage. Significantly, Collier has not proposed any modifications that would change the effectiveness of the Northern Preserve in providing mitigation for the wetland impacts proposed and approved in the 2002 Permit. While Petitioners claim that the wetlands in the Northern Preserve may be subject to some changes in the level and seasonality of inundation as a result of the SWMS modifications, the evidence does not support those assertions. The revised SWMS will continue to allow water to flow through the Northern Preserve in a manner consistent with existing conditions while providing some flood control protection for extreme rainfall events. Petitioners also suggest that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts of the modified SWMS on the wetlands. However, the more persuasive testimony indicates that the timing and levels within the wetlands will not be affected by the revised SWMS. The control elevations within the development area have not changed from the 2002 Permit, and these protect the onsite wetlands and ensure that those wetlands will function as expected. With respect to the internal wetlands within the development area, the control elevations have not changed from the 2002 Permit and the evidence establishes that the internal wetlands will continue to function and operate as contemplated in the 2002 Permit. There has been some relocation and reconfiguration of the internal wetland preserve areas that will actually enhance the value of the mitigation by connecting those wetland areas to other preserve areas. Petitioners further suggested that the wetland mitigation within the development area would not function as permitted in the 2002 Permit due to the spill over from the lakes to the wetlands. However, when the water reaches those internal wetland preserves, it has been treated to Class III water quality standards. Therefore, the mitigation values of those wetlands preserves will not be changed or affected due to water quality. Petitioners' objections to the wetland impacts and mitigation were primarily directed at the overall impacts rather than to the 2006 modifications. However, their witness was unaware of the values provided by the additional acres that will be impacted through the 2006 Permit. Therefore, a challenge to 2002 permitted wetlands impacts and mitigation is inappropriate in this proceeding. Functions To Fish and Wildlife and Listed Species Section 4.2.2 of the BOR implements Florida Administrative Code Rule 40E-4.301(1)(d) and provides that an applicant must provide reasonable assurances that a project will not cause adverse impact to the abundance and diversity of fish, wildlife, and listed species or their habitat. With respect to the 586.66 acres of wetland impacts permitted in the 2002 Permit, the 2006 Permit does not modify or affect the values that the wetlands provide to either the abundance or diversity of fish and wildlife. Review of the wetlands criteria as to those acres was finally determined in the 2002 Permit and should not be reopened. By relocating thirteen of the previously impacted acres so they are most closely connected to other wetlands, their value to fish and wildlife will increase. As explained by the District's witness Bain, if Collier had moved the preserve area and changed its functional value, the District would have been required to reevaluate the mitigation that had been accepted for the wetland impacts in the 2002 permit. In this case, however, because the Northern Preserve area did not change, the District's review is limited to the newly impacted wetlands internal to the development for which mitigation was not provided in the 2002 Permit. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the project's wetlands. The only wetland values assessed in the 2006 Permit were the additional wetland impacts that were not mitigated in the 2002 Permit. The evidence establishes that the current value of the wetlands is low due to the heavy melaleuca infestation, which is greater than fifty percent coverage in most locations and seventy-five percent or more in much of the area. Melaleuca has the effect of draining short hydroperiod wetlands. While Petitioners may disagree with how the wetlands were previously evaluated, nothing in the 2006 modification allows or requires a reassessment of their value. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod (the depth, duration, or frequency of inundation) of wetlands or other surface waters. Subsection (a) of this standard applies if the project is expected to reduce the hydroperiod in any of the project's wetlands. Conversely, subsection (b) applies if the project is expected to increase the hydroperiod through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Again, there is no basis for the District to reopen and reevaluate the wetlands for which mitigation has already been permitted. No evidence was presented to indicate that there would be any obstacles or problems to accomplishing the mitigation that was proposed and accepted in 2002. In any event, the engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Northern Preserve will occur from what was permitted in the 2002 Permit. By analyzing the various biological indicators onsite and setting the control elevations within the SWMS and the wetlands (both the Northern Preserve and onsite preserve wetlands) above the WSWT, the project ensures that the appropriate hydrology will be maintained. Though the fish and wildlife are not expected to be adversely affected by the 2006 Permit, Collier will be conducting monitoring of plants and animals on the site as an extra measure of assurance as contemplated under BOR Section 4.2.3.4(c). Focusing on just the changes from 2002 to 2006, Petitioners' two experts conceded that the hydrology in the Northern Preserve and its value to wildlife and listed species (including the wood stork) would be benefited in the 2006 Permit over that contemplated in the 2002 Permit due to the removal of the Flow-Way. Secondary Impacts to Water Resources Florida Administrative Code Rule 40E-4.301(1)(f) requires a demonstration that the proposed activities "[w]ill not cause adverse secondary impacts to the water resources." A similar demonstration is required by Sections 4.1.1(f) and 4.2.7 of the BOR. In this case, the secondary impacts considered by the District were potential impacts due to the relocation and expansion of the buffer preserve areas to the perimeter of the project site. In conducting a secondary impact analysis, BOR Section 4.2.7 requires that the District consider only those future projects or activities which would not occur "but for" the proposed system. Here, the evidence demonstrated that no wetlands or other surface waters will be secondarily impacted by the modifications to the SWMS as part of the 2006 Permit. The undersigned has rejected Petitioners' contention that a proposed extension of County Road 951 through the development site should be considered a secondary impact in evaluating this project. This extension has been proposed for at least fifteen years and its precise configuration is unclear. It is not required to be built as a result of the project and there are no firm plans or contracts in place to construct the road. Although the road is listed on the County's transportation plan, it remains speculative as to if and when it will be built. Additionally, there is no evidence the County has any ownership interest in property for a road in the area identified by Petitioners. Witness Bain testified that the District examined the Collier County Public Records and an easement had not been granted to the County to build the road. i. Elimination and Reduction Florida Administrative Code Rule 40E-4.301((3) provides in part that "the provisions for elimination or reduction of impacts contained in the [BOR] shall determine whether the reasonable assurances required by subsection 40E- 4.301(1) and Rule 40E-4.302, F.A.C., have been provided." Section 4.2.1.1 of the BOR implements that provision and provides that elimination and reduction of impacts is not required when: The ecological value of the function provided by the area of wetland or other surface water to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3 and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected; . . . In accordance with that section, Collier was not required to implement practicable design modifications to reduce or eliminate impacts. The District did a site-specific analysis of the quality of the 39.5 acres of adversely affected wetlands, taking into consideration the condition of the wetlands, hydrologic connection, uniqueness, location, and fish and wildlife utilization. The unrebutted testimony is that the quality of the 39.5 acres of wetlands to be impacted by the 2006 Permit is low and these wetlands were already previously authorized to be secondarily impacted. The low quality wetlands are melaleuca dominated making them not unique. The mitigation will provide greater long-term ecological value than the impacted wetlands. As noted on page 10 of the Staff Report, there will be a larger, contiguous mitigation area to offset direct impacts to previously preserved, but secondarily impacted wetlands and the preservation/enhancement of the external preserve area. The 2006 Permit provides that 5.68 credits are required to be purchased in the PIMB. Collier has advised the District that 27.68 credits are being purchased pursuant to its Corps permit. Thus, Collier will be purchasing more credits than required by the District. Witness Bain took this additional mitigation into account in determining whether the proposed mitigation will provide greater long term ecological value than the area impacted. While the Corps permit is an entirely separate permit action, Collier has agreed to include an additional 5.68 credits within the Basin beyond what is required in the Staff Report as a condition to this 2006 Permit. Therefore, the mitigation is clearly of greater long-term ecological value than the area impacted. Additional Requirements Florida Administrative Code Rule 40E-4.302 imposes additional requirements on an ERP applicant, including a cumulative impact assessment, if appropriate, and satisfaction of a public interest test. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant demonstrate the project "[w]ill not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the [BOR]." Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin, and a cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. See Florida Wildlife Federation et al. v. South Florida Water Management District et al., 2006 Fla. ENV LEXIS 49 at *49, DOAH Case Nos. 04-3064 and 04-3084 (DOAH Dec. 3, 2006, SFWMD Dec. 8, 2006). Also, Section 373.414(8)(a), Florida Statutes, requires the District to consider the cumulative impacts upon surface water and wetlands within the same drainage basin. Thus, the cumulative impact analysis applies only when mitigation is proposed outside of the drainage basin within which the impacts are to occur. Broward County v. Weiss et al., 2002 Fla. ENV LEXIS 298 at *29, DOAH Case No. 01-3373 (DOAH Aug. 27, 2002, SFWMD Nov. 14, 2002). In this case, all of the proposed mitigation associated with the 2006 Permit modifications is located within the West Collier Basin. The evidence shows that the mitigation will offset the impacts to wetlands proposed in the 2006 Permit. Therefore, since the mitigation will be performed in the same Basin as the impacts and will offset the adverse impacts, the District must "consider the regulated activity to meet the cumulative impact requirements" of Section 373.414(8)(a), Florida Statutes. A new cumulative impacts analysis based on removal of the Flow-Way is not necessary because the modification does not change the cumulative impacts analysis conducted in the 2002 Permit. Since the Flow-Way was not considered a wetland impact or contributing to the mitigation in the 2002 Permit, its removal does not affect the adequacy of the previously conducted cumulative impacts analysis or the mitigation. Accordingly, there is no need for a new cumulative impact analysis with regards to the Northern Preserve. Finally, contrary to Petitioners' assertion, there is no rule or BOR provision which requires Collier to mitigate for the alleged prior impacts of other projects. Public Interest Test In addition to complying with the above criteria, because the project is located in, on, or over wetlands or other surface waters, Collier must also address the criteria contained in the Public Interest Test in Florida Administrative Code Rule 40E-4.302(1) and Section 4.2.3 of the BOR by demonstrating that the project is not contrary to the public interest. See also § 373.414(1)(a), Fla. Stat. Since the project does not discharge into an OFW or significantly degrade an OFW, the higher standard of "clearly in the public interest" does not apply. In determining compliance with the test, Florida Administrative Code Rule 40E-4.302(1)(a) requires that the District do so by "balancing the [seven] criteria [in the rule]." Findings with respect to each of the seven criteria are set out below. (Except for pointing out that the District does not have an adopted rule which provides more specific detail on how to perform the balancing test than is now found in paragraph (1)(a), and a contention that witness Bain's testimony was insufficient to explain how the staff balanced those factors, Petitioners did not present any evidence at hearing or argument in their Proposed Recommended Order in support of their contention that the above rule, BOR section, or the associated statute have been applied by the District in an unconstitutional manner.) Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.) Collier provided reasonable assurances that the project will not cause any onsite or offsite flooding nor cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria. Also, the post- development peak rate of discharge does not exceed the allowable discharge rate. Further, the project will not cause any environmental hazards affecting public health, safety, or welfare. The project is considered neutral as to this factor. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.) For the direct wetland impacts under the 2006 Permit, Collier proposes mitigation which has not changed from the 2002 Permit. The mitigation proposed was previously determined to offset potential impacts to fish and wildlife and particularly wood stork habitats. The evidence indicates that the mitigation plan for the Northern Preserve will improve wood stork habitat from its current melaleuca infested condition. For the additional 40.18 acres of wetland impacts authorized in 2006, the mitigation is of greater long-term value. Thus, the project should be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.) The parties have stipulated that the project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the project's construction would result in harmful erosion or shoaling. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.) The project does not provide any fishing, recreational values, or marine productivity. Therefore, the project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.) It is undisputed that the project is permanent in nature. Even though the project is permanent, it is considered neutral as to this factor because mitigation will offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.) The parties have stipulated that no significant archeological or historical resources have been identified on this site. Therefore, the project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.) The current condition and relative value of functions being performed by the areas affected by the project is low due to the melaleuca infestation. Project mitigation will restore 940 acres of poor quality wetlands and uplands, greatly enhancing their function and value. Therefore, the project should be considered positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value. Summary of Public Interest Factors Overall, the project is no worse than neutral measured against any one of the criteria individually. Therefore, the project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting the application of I. M. Collier, J.V. for a modification to Environmental Resource Permit No. 11-02031P. DONE AND ENTERED this 24th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2007.
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
The Issue The St. Johns River Water Management District (the "District") alleges in Case Number 97-4389 that Respondent, Modern, Inc. ("Modern"), excavated two ditches in wetlands without a permit, that the excavation was not exempt from a permit, and that Modern committed related acts alleged in the Administrative Complaint. The District proposes alternative plans for corrective action. Modern and its co-respondents ("Respondents") contend that the excavation was not required to have a permit because either it was not an activity covered by the permitting statutes or it was exempt. In addition, Respondents charge that the proposed agency action is based on an unadopted rule that does not satisfy the requirements of Section 120.57(1)(e), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.) In Case Numbers 97-4390, 97-4391, 97-4392, and 97-4393, Respondents challenge an Emergency Order issued by the District to stop the drainage of wetlands. Respondents contend that the Emergency Order is facially insufficient, that there was no emergency, and that the corrective action has worsened conditions. The issue in each of the rule challenge cases is whether an existing rule or an agency statement is an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8) and 120.56(1). Case Numbers 98-0426RX and 98-1180RX challenge Rule 40C-4.041 pursuant to Section 120.56(3). Case Number 98-1182RX challenges Rule 40C-4.051 pursuant to Section 120.56(3). Case Numbers 98-0427RU and 98-1181RU challenge an agency statement pursuant to Section 120.56(1) and (4). (Unless otherwise stated, all references to rules are to rules published in the Florida Administrative Code as of the date of this Recommended Order.) The parties identify approximately 57 issues in their respective Proposed Recommended Orders and Proposed Final Orders ("PROs" and "PFOs", respectively). Those issues relevant to the proceeding conducted pursuant to Section 120.57(1), including Section 120.57(1)(e), are addressed in this Recommended Order. The remaining issues are addressed in the Final Order issued on the same date as the date of this Recommended Order.
Findings Of Fact This proceeding arises from the excavation of two intersecting canals, or ditches, in January 1997 in Brevard County, Florida. One conveyance runs north and south and is identified by the parties as "NS1." The other conveyance runs east and west and is identified by the parties as "EW1." Part of the excavation occurred inside the St. Johns National Wildlife Refuge (the "Refuge"). The Refuge is owned and managed by the United States Fish and Wildlife Service (the "Wildlife Service"). All of the excavation occurred on property within the jurisdiction of the District and contiguous to property owned by Modern. On May 14, 1997, the District issued an Emergency Order authorizing the Wildlife Service to construct temporary weirs in NS1 and in EW1. The District intended the weirs to restore the bottoms of NS1 and EW1 to elevations which the District claims to have existed in NS1 and EW1 prior to the excavation. The Wildlife Service completed construction of the weirs on May 27, 1997. Excavation Site NS1 runs parallel to Interstate 95 ("I-95"). EW1 runs parallel to SR 50 and lies approximately 25 feet inside the southern boundary of the Refuge. The point where NS1 and EW1 intersect is west of I-95 by approximately .25 miles, or about 1100 feet, and north of SR 50 by approximately one-half mile plus 25 feet, or 2,665 feet. NS1 and EW1 intersect at a point that is approximately 2,903 feet northwest of the intersection of I-95 and SR 50. NS1 bisects a marsh ("Marsh-1") approximately 800 feet south of EW1. EW1 bisects a pond ("Pond-1") approximately 300 feet east of NS1. Pond-1 spans north and south of both EW1 and the southern boundary of the Refuge. Marsh-1 is south of the Refuge boundary and spans east and west of NS1. NS1 continues south of Marsh-1 and intersects SR 50 and an adjacent east-west canal immediately north of and parallel to SR 50 known as the Indian River City Canal ("IRCC"). NS1 proceeds south of the IRCC approximately 1.5 miles to a larger east-west canal, identified as both the Addison Canal and the Ellis Canal (the "Addison Canal"). The Addison Canal flows west from that point approximately four miles into the St. Johns River. NS1 runs north across EW1 approximately 1.5 miles from SR 50 to an east-west road known as Satterfield Road. An adjacent, parallel canal immediately south of Satterfield Road is identified as the Satterfield Road Canal. EW1 continues west from I-95 approximately 2.75 miles until it intersects Hacienda Road. EW1 runs east of I-95 for some distance. The excavation in January 1997 included both NS1 and EW1. NS1 was excavated from its intersection with SR 50 north approximately 2,687 feet to a point approximately 22 feet north of EW1. EW1 was excavated approximately 30 feet east of NS1. Contested Area The excavation site is in the southeast corner of a "rectangular tract" of land west of I-95 and north of SR 50 which comprises approximately 4.13 square miles. The rectangular tract and a "smaller parcel" east of I-95 make up the "contested area" in this proceeding. Rectangular Tract The rectangular tract measures approximately 2.75 miles from I-95 west to Hacienda Road and approximately 1.5 miles, from SR 50 north to Satterfield Road. The intersection of I-95 and SR 50 forms the southeast corner of the rectangular tract. The rectangular tract is bounded on the east by I-95; on the south by SR 50; on the west by Hacienda Road, which is about a mile or so east of the St. Johns River; and on the north by Satterfield Road. Satterfield Road is approximately three miles south of the boundary between Brevard and Volusia counties (the "county line"). Smaller Parcel A substantially smaller parcel abuts the east side of I-95. The smaller parcel is bounded on the west by I-95; on the south by SR 50; on the east by State Road 405 ("SR 405"); and on the north by the Satterfield Road Canal and what would be Satterfield Road if Satterfield Road extended east of I-95. SR 405 runs north and south parallel to and approximately .25 miles east of I-95 and approximately 2.7 miles west of the Indian River. Tribulation Harbor In this proceeding, legal interests from five separate sources flow into the contested area like separate rivers flowing into an inland harbor. The confluence of divergent legal interests results in a turbulent mix of the statutory responsibilities of state and federal agencies and the constitutional rights and business interests of private property owners. Respondents own over 4,500 acres of land in and around the contested area and have legitimate business or personal interests in the development or other use of their property. The District is statutorily charged with responsibility for the hydrologic basin of the St. Johns River (the "River Basin"), including the contested area. The contested area is circumscribed by a five-mile by four-mile area platted in 1911 as the Titusville Fruit and Farm Subdivision ("Titusville Farm"). The recorded plat of Titusville Farm established a drainage system of intersecting east-west and north-south canals. Some of the conveyances, including NS1 and EW1, run through the contested area. Federal law charges the Wildlife Service with responsibility for managing the Refuge. A substantial portion of the Refuge lies in that part of the contested area west of I-95. The contested area also includes portions of the Hacienda Road project. Private Property Modern is a Florida corporation owned principally by Mr. Charles Moehle who is also the president of the company and the father of Mr. Michael Moehle. Omni is a Florida corporation wholly owned by the younger Moehle. Modern owns two parcels of land in the contested area ("Modern-1" and "Modern-2"). The northern boundary of Modern-1 is just south of EW1 and the Refuge boundary. Modern-1 is bounded on the west by NS1, on the south by SR 50, and on the east by I-95. Modern-2 is inside the contested area in the smaller parcel east of I-95. Modern-2 comprises a substantial portion of the smaller parcel. Modern owns a third tract of land comprising approximately 4,500 acres west and south of Fox Lake ("Modern-3"). Modern-3 is within the District's jurisdiction and includes approximately three miles of land from Satterfield Road north to the county line, including one mile in Titusville Farm immediately north of Satterfield Road. 22. Modern-3 is bounded on the south by Satterfield Road; on the north by the county line; on the east by a north-south section line parallel to and approximately .75 miles west of I-95; and on the west by a section line that is approximately one mile west of what would be Hacienda Road if Hacienda Road extended north of Satterfield Road. A square mile section is carved out of the western half of Modern 3 in Section 10, Township 22 South, Range 34 East. Omni, Mr. Hart, and Mr. Nelson own separate parcels of land outside the contested area but proximate to the contested area. They claim that their property is directly impacted by the action taken in the Emergency Order and by the action proposed in the Administrative Complaint. Omni owns property on the east side of SR 405. Although the Omni parcel is outside of the contested area, it is adjacent to the smaller parcel and within both the River Basin and Titusville Farm. Mr. Hart owns property which is south of SR 50 approximately one mile west of the intersection of SR 50 and I-95. Although the Hart property is outside of the contested area, it abuts the southern boundary of the rectangular tract and is within the River Basin and Titusville Farm. Mr. Nelson owns property located a little more than a half-mile southeast of the intersection of SR 405 and SR 50. Although the Nelson property is outside of and not adjacent to the contested area, the property is within the River Basin and Titusville Farm. The District The District was created in 1972 as the state agency responsible for carrying out the provisions of Chapter 373 and for implementing the programs delegated in Chapter 403. Section 373.069(1)(c) describes the geographical jurisdiction of the District. The jurisdiction of the District includes all of the contested area. The River Basin includes all or part of 19 counties from south of Vero Beach to the border between Florida and Georgia. The counties entirely within the River Basin include Brevard, Clay, Duval, Flagler, Indian River, Nassau, Seminole, St. Johns, and Volusia counties. The counties partially within the River Basin are Alachua, Baker, Bradford, Lake, Marion, Okeechobee, Orange, Osceola, Polk, and Putnam. Titusville Farm Titusville Farm contains approximately 20 sections of land, plus an out-parcel to the southeast which has relatively little materiality to the issues in this proceeding (the "out- parcel"). Each of the 20 sections of land contains approximately 640 acres and, together, total approximately 12,800 acres. The exact dimensions of Titusville Farm are recorded in Plat Book 2, page 29 of the Public Records of Brevard County, Florida. With the exception of the out-parcel, Titusville Farm is bounded on the east by a section line approximately 1.25 miles east of I-95 and approximately 1.7 miles west of the Indian River; on the south by a section line approximately 1.5 miles south of SR 50 at what is now the Addison Canal; on the north by a section line approximately one mile north of what are now Satterfield Road and the Satterfield Road Canal; and on the west by the St. Johns River, which flows north at a point about a mile or so west of and parallel to what is now Hacienda Road. 3.3(a) History Titusville Farm was originally designed so that each quarter section of 160 acres was surrounded by intersecting east- west and north-south drainage canals intended to drain water westerly toward the St. Johns River and southerly toward what is now the Addison Canal. The original designers intended to create a dry and fertile land for farming and fruit groves. The original design for Titusville Farm called for a series of parallel east-west canals approximately .25 miles apart on quarter section lines. The canals ran parallel to the north and south boundaries of Titusville Farm from the east boundary approximately five miles to the St. Johns River to the west. The parties use the label EW1 in this proceeding to designate the first east-west canal north of SR 50. EW1.5 refers to the second east-west canal north of SR 50. EW2 refers to the Satterfield Road Canal in some exhibits and to an intervening canal in others. The original design for Titusville Farm also called for a series of parallel north-south manifold canals, approximately .25 miles apart on quarter section lines. Each canal ran parallel with the east and west boundaries of Titusville Farm from the north boundary approximately four miles to the Addison Canal at the south boundary. The parties use NS1 in this proceeding to designate the first north-south canal approximately .25 miles west of I-95. NS2 identifies the next north-south canal west of NS1. The numbering identification continues west in this proceeding to Hacienda Road. From 1911 through 1916, the original developers of Titusville Farm constructed some of the canals and farmed the area, predominantly with fruit groves. Sometime after 1916, the developers began selling off land to third-party purchasers. Subsequent purchasers altered, expanded, or abandoned the canals in and around their property. By 1943, the canals originally constructed in Titusville Farm remained in place but only one orange grove remained in the southeast corner of Titusville Farm near what is now the excavation site. Other farming within the contested area was sparse. The canals actually constructed by the developers of Titusville Farm continue to be depicted as existing systems on several current maps. They are also evidenced in drainage easements of record. 3.3(b) Drainage Easements The chain of title from Titusville Farm shows that purchasers took title subject to existing easements for "canals and/or ditches, if any." In 1971, when the United States Government established the Refuge, it took fee simple title to approximately 4,163 acres of former Titusville Farm land subject to: . . . permanent easement granted to Florida Power and Light Company . . . and subject to other rights outstanding for existing roads, lines, pipe lines, canals, and/or ditches, if any. (emphasis supplied) OR Book 1580, page 810, Brevard County. The Refuge The Refuge is located within the River Basin and within Titusville Farm. The vast majority of the Refuge is located inside the rectangular tract in the contested area. However, the Refuge also extends west of Hacienda Road to the St. Johns River and contains a small "out-parcel" north of Hacienda Road. Except for the out-parcel, the Refuge is more or less rectangular, bounded on the east by I-95, on the south by SR 50, on the north by Satterfield Road, and on the west by the St. Johns River. The distance between the east and west boundaries of the Refuge is approximately 3.75 miles. The distance between the north and south boundaries is approximately 1.5 miles. The Refuge contains approximately 4,163 acres and includes much of the area from I-95 west to Hacienda Road and from Satterfield Road south to SR 50. The federal government established the Refuge in 1971 to protect the endangered dusky seaside sparrow. The sparrow became extinct in 1990. After 1971, the Refuge became part of a national system for the conservation, management, and restoration of lands for fish, wildlife, plants, and their habitats. The federal government manages the Refuge under the Emergency Wetlands Restoration Act of 1986, which Congress reaffirmed in 1997, as a wetland to provide habitat protection for threatened and endangered species of special concern. The authorized methods for protecting wetlands include a National Wetlands Inventory that identifies wetlands nationally. The Refuge is a particularly important wetland in the sense that it is a high floodplain. A high floodplain is a type of wetland that is diminishing, especially in Florida. The federal government manages the Refuge as an ecosystem. The government attempts to mimic what happens naturally in the area with fire and water. It attempts to restore and maintain the sheet flow of water across natural marshes and to use fire as a means of maintaining marshes in their natural state. 3.4(a) Species of Special Concern The Refuge provides a habitat for species of special concern to both state and federal governments. The Refuge is one of the most important breeding areas in the country for the black rail. The black rail is a migratory species that uses the Refuge for nesting during the summer and for a winter habitat during the fall and winter. Several species use portions of the Refuge near the excavation site. The least bittern uses the area for feeding and nesting. The northern harrier is a migratory species that uses the area for feeding during the fall, winter, and early spring. The Refuge provides habitat for bald eagles, wood storks, otters, and alligators. It also provides habitat for: long-legged wading birds, such as great blue herons and great egrets; shorter-legged wading birds, such as little blue herons, snowy egrets, and little green herons; aerial diving species, such as terns and seagulls; submergent diving species, such as pie billed grebes, mergansers, and cormorants; and red-winged blackbirds and wrens that nest in emergent vegetation. 3.4(b) Wetland Communities The majority of the contested area contains five different wetland community types. There are open-water areas, such as Pond-1; shallow marsh, such as Marsh-1; wet prairies; hydric hammocks; and transitional shrub systems. Shallow marsh contains shallow water and emergent wetland vegetation. Water levels fluctuate throughout the year. The predominant vegetation is cattail and sawgrass. Wet prairie is slightly higher in elevation and somewhat drier than shallow marsh. The primary vegetation found in wet prairie is cord grass. Transitional shrub systems are areas in transition from uplands to wetlands or from wetlands to uplands. The vegetation in these areas typically is wax myrtle. 3.4(c) Pre-Excavation Site In January 1996, Mr. Charles Moehle complained to the District that the Hacienda Road project caused flooding on his property. District staff investigated the matter and concluded that the Hacienda Road project was not the cause of the flooding. The investigation included physical inspection and elevation readings for what became the excavation site in 1997. 3.4(c)(1) Physical Inspection Before the excavation in January 1997, there was no water connection from EW1 to NS1. NS1 and EW1 had been filled-in at various junctures with sediment and wash-outs from rain. Vegetation growth and aquatic vegetation further occluded NS1 and EW1. The east and west banks of NS1 from SR 50 north to Marsh-1 were similar and appeared undisturbed. The west bank of NS1 disappeared at the point where NS1 intersected Marsh-1. Both banks of NS1 were very low through Marsh-1. Marsh-1 had standing water in it. The predominant vegetation was spartina baderi, a marsh grass found in wetland areas ("spartina"). Approximately 500 feet of NS1 between Marsh-1 and EW1 was dry and shallow. This portion of NS1 was only one-half to one-foot deep. It was more characteristic of a swale than a ditch and was heavily vegetated with spartina. The bottom elevation of a portion of NS1 between EW1 and Marsh-1 was approximately 2.5 feet higher than the remainder of NS1. This high spot functioned as an elevation control within NS1. EW1 east of NS1 appeared very similar to that portion of NS1 north of Marsh-1. It was dry and vegetated with spartina. There was no water connection between NS1 and EW1 so that Pond-1 did not routinely drain west through EW1. EW1 also contained a high spot just west of NS1. Pond-1 was a healthy open-water community surrounded by green cattails. Pond-1 was deeper than five feet in some areas. A berm on the west side of NS1 north of Marsh-1 was one to two feet high and three to five feet wide. It served as a fire-break trail and resembled a road. The berm was slightly higher south of Marsh-1 and heavily vegetated with cabbage palms and other vegetation near the intersection of NS1 and SR 50. 3.4(c)(2) Elevations On February 28, 1996, in response to complaints from Modern, District staff took spot readings of bottom elevations within NS1 from Marsh-1 north to EW1 and within EW1 east of NS1. They also took water elevation readings in Pond-1 and at the intersection of NS1 and SR 50. The elevation readings revealed respective control elevations in NS1 and EW1 of 12.9 and 12.79 feet. Other elevations in NS1 were 12.26 feet at a point just north of Marsh-1, 12.9 and 12.7 feet at two points south of EW1, and 12.9 feet at the intersection of NS1 and EW1. The bottom elevation in EW1 varied from 12.4 to 12.79 feet. District staff also reviewed bottom elevation readings in various pre-excavation surveys made between 1995 and January 1997 and referred to by the parties as the Lowe's Report, the Cracker-Barrel survey, the McCrone survey, and the Titusville survey. The McCrone survey recorded bottom elevations for NS1 which were consistent with those taken by District staff. However, elevations varied by as much as a foot for EW1. Water elevation readings varied with seasonal water conditions and other factors. The McCrone survey found respective control elevations in NS1 and EW1 of 12.7 and 11.7 feet. The bottom elevation for NS1 was 12.7 feet at a point just south of EW1. Bottom elevations for EW1 ranged from 10.5 to 11.7 feet. The investigation by the District established respective high spots in NS1 and EW1 at 12.9 and 12.79 feet. The Titusville survey recorded a water elevation of 10.54 feet in NS1 at SR 50. The water elevation in EW1 east and west of the I-95 culvert was 12.55 feet. The variation in water elevations of 12.55 feet in EW1 at I-95 and 10.54 feet in NS1 at SR 50 suggest high spots in EW1 or NS1. The high spots prevent water from flowing from the culvert at I-95 west through EW1 to NS1 and south through NS1 to SR 50. 3.4(c)(3) Topography A slight ridge exists south of EW1 and supports a more shrubby type of vegetation consistent with transitional wetlands. The topography north of EW1 is lower and characteristic of a deep marsh system. The bottom elevations in NS1 north of EW1 are lower than bottom elevations elsewhere in NS1 and are consistent with surrounding topography. The topography surrounding NS1 south of EW1 is higher and provides a greater source of sediment than does the lower topography north of EW1. More sediment erodes into NS1 south of EW1 because there is more sediment south of EW1. The portion of NS1 north of EW1 is in a marsh and under water most of the year. The submerged topography north of EW1 provides less opportunity for material to erode into NS1 north of EW1. 3.5 Hacienda Road Project The Department widened SR 50 between 1988 and 1991 by adding two east-bound lanes on the south side of SR 50. The District required the Department to obtain a permit for the widening of SR 50 and to offset the adverse impacts to wetlands through a plan of mitigation. The Wildlife Service actually performed the mitigation work for the Department and completed the mitigation plan in 1991. West of Hacienda Road, the Wildlife Service placed fill from adjacent berms in the IRCC, EW1, and EW1.5, which had pre- mitigation depths at that location ranging from 1.5 to 2.0 feet. The Wildlife Service planted spartina on the fill. The Wildlife Service also replaced six 30-inch culverts under Hacienda Road with nine 36-inch culverts. The new culverts were located at the same elevation as the elevation of the pre-mitigation culverts. The Wildlife Service placed riser boards in the new culverts under Hacienda Road. Riser boards are used to facilitate the cleaning of culverts. However, they can also raise the water level above which water must rise before it can pass through the culverts. Respondents contend that the fill west of Hacienda Road eliminated floodplain storage. They also claim the riser boards in the new culverts under Hacienda Road cause water to back-up in the contested area by preventing flow from the contested area through the new culverts into the marsh west of Hacienda Road. 3.5(a) Floodplain Storage The Hacienda Road project did not decrease floodplain storage capacity west of Hacienda Road. The project used only fill from existing berms and did not bring in additional fill from outside the marsh. The fill did not reduce floodwater capacity of the IRCC, EW1, and EW1.5. Their capacity before the mitigation had already been reduced by groundwater from the high groundwater table close to the St. Johns River. The fill displaced high groundwater in the IRCC, EW1, and EW1.5, rather than floodwater capacity. The fill taken from existing berms reduced the size of the berms that had previously displaced floodwater capacity. 3.5(b) Water-flow Neither the mitigation west of Hacienda Road, the new culverts under Hacienda Road, nor the riser boards in the new culverts caused water to back-up and flood Respondents' property. The Hacienda Road project does not prevent water-flow during either low-flow or high-flow conditions. 3.5(b)(1) Low-flow A low-flow condition occurs when water rises above the control elevation that is impeding its flow. The water stages-up in lower areas until it flows over the high spot that operates as a control elevation. During low-flow conditions, neither the mitigation west of Hacienda Road, the culverts, nor the riser boards in the culverts control the flow of water from I-95 west to Hacienda Road. Rather, bottom elevations in the canals, or ditches, east of Hacienda Road ("upstream") control the flow of water from I-95 west to Hacienda Road. Water that does not exceed the control elevations will pond in the adjacent wetlands and not reach Hacienda Road. Water that ponds behind control elevations during low- flow conditions is also influenced by two basins and a ridge in the contested area. One basin is north of SR 50 and south of EW1, and the other basin is north of EW1. Water from the former basin flows south while water from the latter basin flows toward Hacienda Road. The water elevation at Hacienda Road is approximately 11.0 feet. High spots in the canals, or ditches, upstream from Hacienda Road range from 12.1 feet to 13.3 feet. A control elevation of 12.6 feet exists in EW1 east of Hacienda Road. Water stands behind the high spot at 12.3 feet. Closer to I-95, the bottom elevation in EW1 ranges from 12.1 to 12.6 feet and effectively controls water elevation at 12.0 feet. Water in EW1 west of I-95 and east of Hacienda Road must rise to an elevation of 12.6 feet before it can flow west toward Hacienda Road. Water in EW1.5 near I-95 has an elevation of 13.3 feet. Water in EW1.5 must rise above that elevation before it can flow west toward Hacienda Road. Water in EW-2 at I-95 is above 13.0 feet. The bottom elevations and water elevations measured by District staff in the contested area between Hacienda Road and I- 95 are consistent with the I-95 construction plans and the Lowe's Drainage Report used for the construction of the Lowe's store at the intersection of SR 50 and SR 405. The I-95 plans show a design high-water elevation of 14.0 feet for the culvert where EW1 crosses I-95. The Lowe's Drainage Report shows that the 100- year, 24-hour storm event flood elevation east of I-95 is 14.0 feet. In addition, a pre-construction survey for the Lowe's store shows elevations in the wetlands north of EW1 to be approximately 13.0 feet. 3.5(b)(2) High-flow A high-flow condition occurs when there is a storm event that creates significant run-off. The run-off overwhelms the high spots that operate as control elevations during low-flow conditions. Run-off is controlled by other factors including culverts such as those at Hacienda Road. During high-flow conditions, the culverts at Hacienda Road are the controlling factors for the flow of water in the contested area from I-95 west to Hacienda Road. The high-flow conveyance capacity for the new culverts is equal to or greater than that of the old culverts. The replacement culverts do not cause water to back-up in the contested area during high-flow conditions. Riser boards in the new culverts under Hacienda Road do not raise elevation levels to a point that causes water to flood Respondents' property during high-flow conditions. 3.5(c) Collateral Improvements During either low-flow or high-flow conditions, the possibility that the Hacienda Road project could cause water to back-up in the contested area has been significantly reduced by improvements in drainage capacity to nearby canals, or ditches. The Department improved several north-south canals, or ditches. Brevard County improved the capacity of the IRCC. When the Department widened SR 50, the Department increased the capacity of NS3 and NS4, where each crosses under SR 50, by replacing old culverts with new culverts at the same invert elevation. The Department replaced one 24-inch culvert in NS3 with an elliptical pipe with the effective capacity of a 36-inch pipe. The Department replaced one 24-inch culvert in NS4 with two 18-inch culverts. The Department also replaced the box culvert in NS1 with a culvert of the same size and invert elevation. Brevard County improved the capacity of the IRCC in several ways. The county cleaned out the canal, installed a 36-inch elliptical culvert under Hacienda Road, and replaced a driveway that had previously blocked the canal with a 36-inch culvert. The Excavation Modern, through its President, Mr. Charles Moehle, caused and directed the excavation of NS1 and EW1. In December 1996, Mr. Charles Moehle contracted with Total Site Development, Inc. ("Total Site") to perform the excavation. Modern also supervised the excavation. Total Site is a Florida corporation wholly owned by Mr. Daniel McConnell and Mr. Randy McConnell, his brother. Both men, through their attorney, obtained immunity from criminal prosecution and testified at the administrative hearing. In 1996, Total Site was a subcontractor in the construction of the Cracker Barrel near the intersection of I-95 and SR 50. The superintendent for the Cracker Barrel project gave Mr. Daniel McConnell the telephone number of Mr. Charles Moehle. After several telephone conversations, Mr. McConnell met with Mr. Moehle. The two men walked the length of NS1 from SR 50 north just past EW1. Mr. Moehle directed Mr. McConnell where to excavate NS1 and EW1, how wide and deep to excavate each, and where to place the spoil material. Mr. Moehle showed Mr. McConnell a paper which Mr. Moehle represented to be a permit to perform the excavation. However, neither Mr. Moehle nor Modern ever applied for or obtained a permit to perform the excavation. The District never received an application or issued a permit for the excavation. On January 10, 1997, Mr. McConnell began excavating NS1 and EW1 and completed the excavation in 2.5 days. Mr. McConnell began work on a Friday, worked Saturday, and completed the work on Monday, January 13, 1997. Mr. McConnell excavated NS1 and EW1 in accordance with the instructions of Mr. Moehle. Mr. McConnell began the excavation at SR 50 and worked north in NS1 approximately 2,687 feet to a point about 22 feet north of EW1. Mr. McConnell also excavated EW1 approximately 30 feet east of NS1. Mr. McConnell placed the spoil material on the west bank of NS1 and did not move the spoil material thereafter. When Mr. McConnell reached the intersection of NS1 and EW1, he excavated EW1 sufficiently to complete a water connection from EW1 to NS1. He placed the spoil material on the banks surrounding the intersection of EW1 and NS1 and did not move the spoil material thereafter. During the excavation, Mr. Moehle frequently visited the excavation site, observed the work, and provided instructions to Mr. McConnell. Mr. Moehle visited the site approximately once or twice a day during the excavation to check on the progress of the work. On a few occasions, Mr. Moehle instructed Mr. McConnell to dig deeper. Mr. Moehle paid Total Site $2,500 when Mr. McConnell completed the excavation on January 13, 1997. Mr. Moehle paid in cash. Post-excavation Site After the excavation, water flowed from EW1 to NS1. NS1 was approximately 10 feet wider and approximately 3-4 feet deeper. NS1 was open with water flowing through it from EW1 south through Marsh-1 to SR 50. The bottom elevation for NS1 was 7.5 and 9.5 feet at points where District staff and the McCrone survey previously found bottom elevations of 12.7 and 12.9 feet. After the excavation, the water elevation at the intersection of NS1 and SR 50 was 12.09 feet. The pre-excavation water level had been 10.54 feet. After the excavation, a large spoil pile existed on the west bank of NS1. The spoil pile filled approximately one- half acre of wetlands. The height of the spoil pile ranged from three to eight feet, with the highest points at the intersection of NS1 and EW1. The spoil pile just north of EW1 had been flattened by the weight of equipment used for the excavation. The width of the spoil pile at its base ranged from 20 to 35 feet for the entire length of NS1. The spoil material was primarily white, sandy material without much vegetation in it. The lack of organic material in the spoil pile indicates that the excavation extended beyond the depth necessary to remove surface vegetation. Emergency The excavation of NS1 and EW1 by Modern in January 1997 created an emergency within the meaning of Section 373.119(2). The excavation created short-term effects that adversely impacted adjacent wetlands and required immediate action to protect the health of animals, fish, or aquatic life; and recreational or other reasonable uses. If left uncorrected, the excavation would have created long-term effects that would have had additional adverse impacts. Short-Term Effect The excavation created numerous short-term effects that adversely impacted wetlands. Short-term effects included a reduction in the water level of approximately 600 to 800 acres of wetlands, a vegetation and fish kill, an alteration of the existing hydroperiod for the affected area, and an increase in the water level south of the intersection of NS1 and SR 50. 6.1(a) Water Levels The excavation lowered the water level in approximately 600 to 800 acres of wetlands. The reduction in the control elevation in NS1 from 12.9 feet to 10.5 feet increased water flow capacity in NS1 and EW1 by 15 to 25 cubic feet per second. The increased water flow lowered water levels in the surrounding wetland from one to two feet. When the excavation was completed, Mr. Randy McConnell was standing on the head-wall at SR 50. He saw a three or four- foot wave flow south down NS1 toward him and hit the head-wall before passing through the culvert south to the Addison Canal. Sometime after the excavation, a substantial water flow out of NS1 caused water levels to drop in the adjacent area, including the Refuge. Pond-1 drained one to two feet. 6.1(b) Vegetation and Fish The excavation killed vegetation in the affected area. The cattail marsh adjacent to Pond-1 became stressed, turned brown, and began dying. The dying cattails consumed oxygen in the open water in Pond-1. The excavation killed fish in the affected area. In March 1997, a fish kill occurred in Pond-1. Wildlife Service personnel observed approximately 75 to 100 dead fish. Other dead fish were likely consumed by other species. The fish kill resulted from oxygen depletion caused by the drainage of Pond-1, dying vegetation, and the concentration of animal populations in the Pond-1 community. 6.1(c) Hydroperiod The excavation altered the natural hydroperiod for the affected area. The hydroperiod for a wetland is the natural fluctuation in water levels that result from dry periods followed by periods of recovery. Water levels drop and are replenished by rain. Precipitation in the Titusville area averages approximately 54 inches in a normal year. Evaporation in Florida for a wetland such as the Refuge is about 48 to 50 inches a year. In a normal year, rainfall and evapo-transpiration would be approximately equal. There are wet and dry seasons for a wetland within a normal year. Approximately 60 percent, or more, of the annual rainfall in a normal year in peninsular Florida occurs in the months of June through October. There are also wet and dry years within longer periods. In the Titusville area, annual rainfall ranges from 35 inches to 80 inches. The adverse impact of any excavation is least during wet months in a normal year and during wet years. During wet conditions, when rainfall generally exceeds evapo-transpiration, the drainage effect of excavation is overwhelmed by rainfall. The adverse impact of any excavation is greatest during dry months in a normal year and during dry years. During dry conditions, the drainage effect of excavation lowers water levels lower than they otherwise would be by lowering elevation controls. The excavation of NS1 and EW1 occurred during dry months in a normal hydroperiod in January 1997. 6.1(d) Stop-loss Ancillaries The adverse impact caused by the excavation was limited by two ancillary factors. One factor was the reduced function of the IRCC, which runs parallel to SR 50, at the time of the excavation. The other factor was the limitation placed on the drainage capacity of NS1 by two culverts through which NS1 must flow south of SR 50. At the time of the excavation, the IRCC was not functioning to full capacity. Plugs in a driveway crossing SR 50 and fill from the Hacienda Road project contributed to the dysfunction. The capacity of NS1 to drain water approximately 1.5 miles south to the Addison Canal was limited by two 18-inch culverts located approximately 2,000 feet south of SR 50. The flow rates for the two culverts are approximately 15 to 25 cubic feet per second, depending on the difference in water levels across the culverts. The dysfunction of the IRCC and the limit imposed by the two culverts combined to prevent more egregious impacts from the excavation of NS1. However, the same limitations increased water in the area south of SR 50 and north of the two culverts. After the excavation, the water level at the intersection of NS1 and SR 50 increased by approximately two feet. The increased water level exacerbated flooding problems in the retention ponds and parking lot of the Cracker Barrel. Long-Term Effect The short-term adverse impacts of the excavation, if left uncorrected, would have had a cumulative effect over several years and would have caused separate long-term adverse impacts. Drainage caused by the excavation differs from natural fluctuations in the hydroperiod. An uncorrected excavation becomes a permanent feature that continues to alter the hydroperiod by permanently lowering water levels and shortening the time that water stands on the surface and saturates the soil. Once the hydroperiod is changed, the change affects the structural integrity of the entire system. Changes to the hydroperiod result in adverse impacts to vegetation, predator- prey relationships, and the suitability of the habitat for a large number of species. Changes in the hydroperiod caused by reduced water levels can change wet prairie area to a shrubby type vegetation dominated by wax myrtle. Wax myrtle can affect the amount and rate of run-off of water and further dry-out the area over time. It can reduce emergent vegetation used as nesting sites for species like red-winged blackbirds and wrens. A reduction in open water area can reduce the habitat for fish and the type of invertebrates that provide food sources for fish. It can also reduce the suitability of the habitat for other species dependent on fish as a food source. A change in the hydroperiod caused by a draw-down of one to two feet can adversely impact various types of wading birds including little blue herons, snowy egrets, little green herons, great blue herons, and great egrets. It can adversely impact other birds such as bald eagles, wood storks, black rails, least bitterns, terns, seagulls, pie billed grebes, mergansers, cormorants, red winged blackbirds, and wrens. An altered hydroperiod can also adversely impact larger animals such as otters and alligators. It is possible to restore habitat after a draw-down. However, such a restoration does not prevent adverse impacts on the health of fish and wildlife during the hiatus that precedes the restoration. District Investigation On March 31, 1997, the District received a letter from the Wildlife Service dated March 27, 1997. The Wildlife Service expressed concern that rapid daily drainage caused by the excavation of NS1 and EW1 was creating adverse impacts on fish and wildlife in the Refuge. The District conducted a sufficient and appropriate investigation. District staff investigated the extent of the excavation and its impact on surrounding wetlands. Neither the investigation nor the Emergency Order was rendered insufficient or inappropriate by the refusal of the District: to wait until 1998 when it could more fully ascertain the effects of the excavation based on whether annual rainfall made 1997 a dry, normal, or wet year; or to re-investigate the effects of the Hacienda Road project on Respondents' properties. The excavation occurred during the dry season of the normal hydroperiod in January 1997. The District reasonably assumed that 1997 was going to be a normal year and could not delay appropriate action until 1998 to see if 1997 turned out to be a wet year. Sometime in 1998, the District determined that 1997 was an extremely wet year. However, the subsequent rainfall in 1997 could not have been reasonably anticipated by District staff and did not eviscerate a reasonable basis for either the Emergency Order on May 14, 1997, or the corrective action taken. An uncorrected excavation would have had long-term cumulative impacts on wetlands irrespective of annual rainfall in 1997. The District investigation leading up to the Emergency Order properly excluded another investigation of the effects of the Hacienda Road project. Such an investigation would have duplicated the investigation conducted in the preceding year. Even if the District had conducted another investigation, the weight of the evidence shows that the results of such an investigation would not have altered the reasonableness of the Emergency Order or the corrective action that ensued. At the time of the Emergency Order, the District reasonably concluded that the excavation caused immediate short- term effects that had significant adverse impacts on water levels in approximately 300 acres of wetlands, on fish and vegetation, and on wildlife in the refuge. Later, the District found that the excavation actually affected 600 to 800 acres of wetlands. Emergency Order Pursuant to Section 373.119(2), the District issued an Emergency Order on May 14, 1997. The Emergency Order authorized the Wildlife Service to construct earthen weirs in NS1 and EW1 to prevent further drainage in the River Basin and the Refuge. The findings and conclusions in the Emergency Order are sufficient and correct. The weirs are reasonably necessary to protect the health of fish, animals, and aquatic life in the River Basin, management objectives and reasonable uses of property in the River Basin, and other reasonable uses of property within the River Basin. Pursuant to the Emergency Order, the Wildlife Service constructed two earthen weirs in NS1 and EW1. The Wildlife Service constructed: an earthen weir in NS1 at a crest elevation of 12.7 feet; and an earthen weir in EW1 at a crest elevation of 11.7 feet. The weir in NS1 is located at the southernmost end of NS1 inside the Refuge. The weir in EW1 is inside the Refuge at the west end of EW1 just east of the eastern edge of NS1. The Wildlife Service used spoil material from NS1 and EW1 to construct the weirs. The weirs in NS1 and EW1 span the width of NS1 and EW1 and are approximately five feet from front to back at the height of each weir. The north-south sides of the weir in NS1 and the east-west sides of the weir in EW1 have a 4:1 slope. The top sides of each weir are stabilized with concrete bags. Neither of the weirs caused flooding or other adverse impacts on nearby property. Both weirs in NS1 and EW1 have the same effect on water levels, up and downstream, as the high- elevation areas had in NS1 and EW1 prior to the excavation. The weir in NS1 re-creates the two-foot head difference in NS1 that existed prior to excavation. No county rights-of-way exist in the location of NS1 and EW1. Brevard County never accepted the right-of-way adjacent to NS1 and EW1. Permitting Requirements Pursuant to Sections 373.413 and 373.416, the District requires an environmental resource permit (a "permit") to assure that activities such as construction, alteration, maintenance, or operation, will not be harmful to the water resources of the state and will be consistent with the overall objectives of the District. A permit is required for such activities unless a particular activity qualifies for an exemption authorized by applicable statutes and rules. Stormwater Management System or Works The permitting provisions in Sections 373.413 and 373.416, in relevant part, apply to the excavation of NS1, EW1, and the larger system of which each is a part (the "larger system") only if NS1, EW1, and the larger system satisfy the definitions of either a "stormwater management system," "works," or a "surface water management system." Each term is defined by statute or rule. The definitions of a "stormwater management system" in Section 373.403(10) and in Rule 40C-4.021(25) are substantially the same. NS1, EW1, and the larger system are each: . . . designed and constructed or implemented to control discharges . . . necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, [or] inhibit . . . water to prevent or reduce flooding, overdrainage, environmental degradation . . . or otherwise affect the quantity and quality of discharges from the system. Section 373.403(10). NS1, EW1, and the larger system are "works" within the meaning of Section 373.403(5) and Rule 40C-4.021(31). NS1 and EW1, and the larger system, are each: . . . artificial structures, including . . . ditches, canals, conduits, channels . . . and other construction that connects to, draws water from, drains water into . . . waters in the state. Section 373.403(5). NS1, EW1, and the larger system are each a "surface water management system" defined in Rule 40C-4.021(26). Each is a system which, in relevant part, is: . . . a stormwater management system . . . or works, or any combination thereof. . . . [and] include areas of dredging or filling . . . . Rule 40C-4.021(26). The definition of a "surface water management system" includes elements not found in the definition of either a "stormwater management system" or "works." The broader scope of a surface water management system creates the potential that the permit requirement in Rule 40C-4.041(2)(b) may require a permit for elements not subject to Sections 373.413 and 373.416. As applied to the facts in this proceeding, the permit requirement in Rule 40C-4.041(2)(b) for the construction, alteration, maintenance, or operation of a "surface water management system" or "works" does not exceed the statutory authority in Sections 373.413 and 373.416. NS1 and EW1, and the larger system fall within the definition of a stormwater management system in Section 473.403(10) and Rule 40C-4.021(25) and within the definition of "works" in Section 373.403(5) and Rule 40C-4.021(31). Thresholds The requirement for a permit in Rule 40C-4.041(2)(b) does not apply if the construction, alteration, maintenance, or operation of a surface water management system does not meet one or more threshold requirements. NS1 and EW1 meet two threshold requirements found in Rule 40C-4.041(2)(b) 2 and 8. Rule 40C-4.041(2)(b) 2 and 8 require a permit for the construction, alteration, maintenance, or operation of a "surface water management system" if the system either: 2. Serves a project with a total land area equal to or exceeding forty acres; or * * * Is wholly or partially located in, on, or over any wetland or other surface water. NS1 and EW1 each serve a project with a total land area equal to or exceeding forty acres. NS1 and EW1 each are located wholly or partially in "wetlands" or other "surface water" defined, respectively, in Rule 40C-4.021(30) and Section 373.019(16). The excavation work placed spoil material in wetlands. The larger system also exceeds each of the threshold requirements in Rule 40C-4.041(2)(b) 2 and 8. Maintenance None of the parties claim that the excavation of NS1 and EW1 in 1997 was "construction" for which a permit is required in Section 373.413. The District alleges in paragraphs 24-25 and 31-33 of the Administrative Complaint that the excavation satisfies the definitions of maintenance, alteration, or operation. The term "maintenance" is defined in Section 373.403(8) and Rule 40C-4.041(20), in relevant part, to mean: . . . remedial work of a nature as may affect the safety of any . . . works . . . but excludes routine custodial maintenance. (emphasis supplied) Section 373.403(8). In order for the excavation of NS1 and EW1 to be maintenance, it had to be, inter alia, "remedial work" that was not "routine custodial maintenance." 8.3(a) Remedial Work The term "remedial" is not defined by applicable statutes or rules. The term must be defined by its common and ordinary meaning. Work is "remedial" if it rectifies or corrects a fault or error. The excavation of NS1 and EW1 was remedial. It rectified and corrected a fault or error caused by occlusions from high spots, or elevation controls, vegetation, and other causes. The high spots, in particular, reduced flow capacity in low-flow conditions. There is no evidence that the excavation of NS1 and EW1 in January 1997 was of a nature that affected the safety of NS1 and EW1. The lack of such evidence, however, does not preclude a finding that the excavation was remedial work. Section 373.403(8) and Rule 40C-4.021(20) provide that work is remedial if it is of a nature that "may" affect the safety of works such as NS1 and EW1. The statute and rule do not define remedial work to require that work "shall" affect the safety of NS1 and EW1 in order for the work to be remedial. Thus, work is remedial if it is of a nature that affects either the function or safety of NS1 and EW1. 8.3(b) Routine Custodial Maintenance If the excavation of NS1 and EW1 was routine custodial maintenance, it was excluded from the definition of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). If the excavation was not defined as "maintenance," it was neither "maintenance" that is subject to the maintenance permitting requirements nor "maintenance" that must satisfy the requirements for a "maintenance" exemption. The terms "routine" and "custodial" are not defined by applicable statutes or rules. They must be defined by their common and ordinary meanings. 8.3(b)(1) Routine The excavation of NS1 and EW1 was not routine. The excavation was not incident to work performed on a regular basis, according to a prescribed and detailed course of action, a standard procedure, or a set of customary activities. The excavation was not part of a course of action performed on a continuous or periodic basis. Any excavation that occurred prior to 1997 occurred only sporadically or episodically and not pursuant to any discernible interval or course of action. No excavation in prior years occurred at the level or to the extent of the excavation in 1997. From 1951 through 1996, neither NS1 nor EW1 were excavated in and around the excavation site. Experts examined aerial photographs taken between 1943 and 1997 for evidence of changes in water flow, vegetation, canal definition, and new spoil material that would indicate the occurrence of maintenance in and around the excavation site. Experts examined aerial photographs taken in 1958, 1969, 1972, 1975, 1979, 1980, 1984, 1986, 1989, 1994, and 1995. In 1943, there was a small interruption of water flow in NS1. The width of NS1 ranged from 10 to 14 feet. In 1951, the width of NS1 ranged from 16 to 20 feet. In 1958, there was some water in NS1 south of EW1. However, the same area in NS1 was predominantly covered with dirt and free-floating wetland vegetation. In 1979, intermittent water appeared in NS1 south of EW1. In 1980, water flowed freely in NS1 north of EW1, but no water flowed in NS1 south of EW1. In 1983, much of the definition of NS1 was lost north of Marsh-1. Water was intermittent. In 1984, the same area was seriously occluded. About 75-80 percent of the capacity of NS1 had been lost. In 1986, NS1 south of EW1 and north of Marsh-1 was losing definition. Sometime before 1993, some of the vegetation was cleaned out of NS1 south of Marsh-1. In 1986, a ditch appears next to EW1 from NS1 east to Pond-1. The ditch is not man-made because it is irregular and does not flow in a straight line. The ditch leading out of Pond-1 next to EW1 appears in the 1986 aerial photographs because a controlled fire in 1984 burned much of the free-floating vegetation. In 1989, the ditch next to EW1 was still present but was starting to become overgrown with vegetation. The vegetation included cattails west of Pond-1. In 1994, vegetation had been cleaned out of NS1 from a point approximately 400 feet south of EW1 to SR 50, but no water was present in that part of NS1. In 1994, the ditch next to EW1 contained cattails and some shallow marsh species. 8.3(b)(2) Custodial The excavation of NS1 and EW1 in January 1997 was not custodial. The excavation exceeded the level of work that was reasonably necessary to preserve, or care for, the condition or status of NS1 and EW1 immediately before the excavation. The spoil material next to NS1 and EW1 after the excavation in January 1997 was not consistent with custodial care. The spoil material differed in quantity and content from that which would evidence custodial care. The large quantity of spoil material produced by the excavation in 1997 far exceeded any reasonable amount that would evidence custodial care. The spoil material consisted primarily of sandy soil. The spoil material from custodial care would have consisted primarily of vegetation and possibly some organic soils that would have accumulated at or just beneath the bottom of NS1 and EW1. Alteration The term "alter" is defined in Section 373.403(7) and Rule 40C-4.041(2), in relevant part, as meaning: . . . to extend . . . works beyond maintenance in its original condition, including changes which may increase . . . the flow or storage of surface water which may affect the safety of . . . such . . . works. Section 373.403(7); 40C-4.021(2). 8.4(a) Original Condition Respondents contend that the term "original condition" means the condition prescribed in the original design specifications for NS1 and EW1 before 1916. If the excavation in 1997 was not so extensive that it exceeded the original design specifications for NS1 and EW1, Respondents argue that the excavation was not an "alteration" of NS1 and EW1. Respondents are correct. The common and ordinary meaning of the term "original" means first in time. The legislature and the District consistently use the term "original design specifications" as a requirement in Section 403.813(2)(f) and (g) and Rules 40C-4.051(11)(b) and 40C-4.051(11)(c). Original design specifications offer the most reliable standard for defining the "original condition" of NS1 and EW1 and should be used for that purpose whenever the original design specifications are established by the evidence of record. If the evidence is insufficient to establish the original design specifications, however, it does not follow that Respondents are free to excavate NS1 and EW2 to any extent. An "alteration" of NS1 and EW1 occurs in the absence of original design specifications if the excavation exceeds the "original condition" of the NS1 and EW1 defined by the weight of the evidence. The literal meaning of the terms "original design specifications" and "original condition" are not coterminous. The former term conveys a relatively specific connotation. The latter term is broad enough to be defined by means other than evidence of the "original design specifications" whenever the "original design specifications" cannot be established. The District must show that the excavation in 1997 satisfied the essential requirements of an "alteration" in Section 373.403(7) and Rule 40C-4.021(2). The District must prove the "original condition" of NS1 and EW1 by evidence of the "original design specifications" or, in the absence of such evidence, by evidence of "original condition" before the excavation. 8.4(a)(1) Original Design Specifications The parties submitted considerable evidence in an attempt to show that the "original condition" of NS1 and EW1 was evidenced, alternatively, by original design specifications or by other evidence, including evidence of the condition of NS1 and EW1 immediately before the excavation in January 1997. The evidence included data and other information from: approximately 78 aerial photographs taken in 1943, 1951, 1958, 1969, 1972, 1979, 1980, 1983, 1984, 1986, 1989, 1993-1995, and 1997; construction plans for I-95, from the 1960s, and for the widening of SR 50 by the Department; various reports and surveys, including those identified in this proceeding as the Cofield, Powell, McCrone, and Titusville surveys or reports; the results of investigations or surveys conducted by the District in 1996 and 1997; official maps, including the recorded plat of Titusville Farm, the U.S. geologic survey quadrangle map, the map used by the Wildlife Service, the Department's drainage basin map, and the District's basin map; the record chain of title that includes recorded drainage easements; approximately 51 pages of local newspaper articles from the early 1900s describing the work at Titusville Farm; and expert testimony based on the examination of the evidence of record. The evidence does not establish the original design specifications for NS1 and EW1 or the larger system. The evidence does not establish invert elevation; bottom width; side slopes; top width; ditch bottom profile or slope; hydraulic capacity; or hydrologic function. From the early 1900s through the 1970s, various plans proposed the construction of ditches that would discharge water into the Indian River approximately three miles east of I-95. The lower elevation of the River presented an efficient outfall for drainage. However, neither NS1, EW1, nor the larger system contains an outfall to the Indian River. Survey information is not available for the original construction of NS1, EW1, and the larger system. Information contained in more recent surveys does not show that NS1 and EW1 were originally designed to a depth of five to seven feet as Respondents contend. Newspaper articles from the early 1900s do not provide sufficient detail to establish the original design specifications for NS1, EW1, and the larger system. Most of the articles refer to a system constructed to the southeast of what is now the intersection of I-95 and SR 50. A few references describe canals that are four to five feet deep. Old newspaper articles show photographs of dredging equipment constructing a canal from Bird Lake to the Indian River. Bird Lake is southeast of I-95 and SR 50. The only evidence of the "original condition" of NS1 and EW1 before the excavation is evidence of the condition of each on the date of a particular piece of evidence. The evidence shows that the "original condition" of NS1 and EW1 between 1951 and the date of excavation was seriously degraded from the condition to which they were restored after the excavation. 8.4(a)(2) Condition Before Alteration After 1951, the canals constructed within that portion of Titusville Farm that is in the contested area lost their original design function. Due to a lack of maintenance and to occlusions through vegetation growth, aquatic vegetation, and sediment, the canals deteriorated over time. Since 1966, the canals have exhibited only sporadic signs of maintenance. Little, if any, new spoil material has been present. Water flow has been intermittent and insignificant. The increased growth in vegetation is consistent with decreased water flow and itself further impedes water flow. Since 1951, the canals in the rectangular parcel have filled with sediment in random locations, producing irregular ditch bottom elevations. High spots in bottom depths create control elevations that impede the flow of water during low-flow conditions west toward the St. Johns River and south toward the Addison Canal. Numerous high spots in bottom elevations create control elevations that impede water flow. The construction plans for I-95 reveal bottom depths in the rectangular parcel that vary from one to two feet. The construction plans for Hacienda Road show bottom depths ranging from 1.5 to 2.0 feet. Other surveys show natural ground elevations of 11.0 to 11.1 feet and bottom elevations of 8.5 to 9.8 feet resulting in bottom depths ranging from 1.3 to 2.5 feet. A survey conducted by the District in 1997 of high spots in bottom elevations between Hacienda Road and I-95 is consistent with the findings of previous surveys. Large sections of east-west ditches are high and reduce the flow of water west to the St. Johns River. Those canals constructed in Titusville Farm which are located in the smaller parcel east of I-95 have experienced a degradation in function similar to that experienced by the canals in the rectangular parcel. In addition, many of the existing drainage ditches discharge into swamps instead of their intended drainage outlets. During periods of high water, the canals constructed in Titusville Farm and now located in the contested area overflow and flood. During such periods, the natural sheet flow of water occurs from east to west and from north to south. 8.4(b) Safety Section 373.403(7) and Rule 40C-4.021(2) provide that work is an alteration if it includes changes which "may" affect the safety of works such as NS1 and EW1. The statute and rule do not say that work "shall" affect the safety of NS1 and EW1 before the work can be considered to be an alteration. Thus, work can be an alteration if it includes changes which affect either the function or safety of NS1 and EW1. The excavation of NS1 and EW1 affected their function. Operation The term "operation" is not defined in applicable statutes or rules and must be defined by its common and ordinary meaning. The term "operation" has two meanings. One meaning for an "operation" is a process or series of acts performed to effect a certain purpose or result, such as a surgical procedure. This definition creates the potential that the excavation of NS1 and EW1 will qualify simultaneously as an operation, maintenance, and an alteration. An "operation" would be neither maintenance nor an alteration only if: the operation was a process or series of acts, other than remedial work; was performed to effect a purpose or result other than the extension of works beyond maintenance in their original condition; and was not routine custodial maintenance. The second definition of "operation" is more easily distinguished from a single event that may also qualify as "maintenance" or "alteration." Under the second definition, an "operation" means an "act," process, or "way of operating" over time. Under this definition, a person can engage in the operation of a stormwater management system, or works, after completing a single event that is defined as either "maintenance" or "alteration." NS1 and EW1 were operating at some level of function and capacity before their excavation in 1997. Section 373.416 could not reasonably be construed as requiring Modern to obtain a permit for allowing NS1 and EW1 to continue their existing operation when Modern became the owner of the property. Modern would have committed no "act" which brought about a "way of operating" NS1 and EW1 that did not already exist at the time of acquisition. The excavation of NS1 and EW1 was an "act" by Modern that brought about a new and different "way of operating" NS1 and EW1. The new "way of operating" would not have occurred but for the act of Modern. After the excavation, Modern operated NS1 and EW1, albeit passively, in a way that Modern did not operate NS1 and EW1 before the excavation. Under either definition, the excavation in January 1997 involved the operation of NS1 and EW1. Pursuant to Section 373.416, the District requires a permit for either type of operation. Integrated Transaction The excavation of NS1 and EW1 in January 1997 consisted of three separate steps integrated into a single transaction referred to by the parties as excavation. The first step was maintenance; the second step was alteration; and the third step involved a new operation. In the first step, maintenance removed vegetation and minor occlusions; restored NS1 and EW1 to their original condition immediately before the excavation; and was neither routine nor custodial. In the second step, alteration extended the excavation beyond maintenance of NS1 and EW1 in their original condition; increased the flow of water in each; increased the depth and width of each; and increased the function and capacity of each. The third step in the transaction involved a new way of operating NS1 and EW1 after the first two steps. Even if the new operation were not a step within the excavation, because it arguably did not occur until after the excavation was completed, the transaction consisted of the two steps in the excavation and a third step after the excavation. In either case, the new operation of NS1 and EW1 is a separate activity for which a permit is required pursuant to Section 373.416. The separate permitting requirements in Sections 373.413 and 373.416 apply to each separate step in the transaction. If excavation had ceased after the maintenance step, no alteration or new operation of NS1 and EW1 would have occurred. Nevertheless, permitting requirements would have required a permit for the maintenance performed in the completed step unless that step qualified for a maintenance exemption. Once the excavation progressed beyond maintenance, it involved the additional, but separate, steps of "alteration" and "operation" for which a permit is required and for which no exemption is claimed by Respondents. If each separate step were separated in time, separate permitting requirements would have applied to each step. Modern does not avoid the separate permitting requirements in Sections 373.413 and 373.416 by integrating three separate steps into a single transaction. Estoppel 204. The weight of the evidence does not show that the District is estopped from enforcing applicable permitting and exemption requirements. The evidence does not show that the District represented to Respondents that the excavation of NS1 and EW1 did not require a permit or qualified for an exemption. Factual Representations Prior to the excavation of NS1 and EW1, District staff met with Mr. Charles Moehle, Mr. Michael Moehle, Mr. Nelson, and a number of others. The meeting was held to discuss the proposed cleaning of the IRCC. A number of issues were discussed at the meeting. One issue involved a driveway that had been constructed in the IRCC without culverts. The District determined that the driveway did not create a substantial adverse impact on area property owners because the IRCC did not carry enough water. Most of the water draining south out of the contested area drained south of the IRCC to the Addison Canal. The District told attendees at the meeting that the District would clean out most of the vegetation in the IRCC. Brevard County subsequently installed culverts in the IRCC where the driveway had been constructed originally without culverts. At the southeast corner of the smaller parcel east of I-95, the IRCC turns obliquely northeast for about a half mile and then resumes its eastward direction toward Indian River City. Respondents claim the IRCC turns north at NS1, at a right angle, and then turns east at EW1, at another right angle, and resumes its eastward direction to Indian River City. The District did not represent to Respondents that the IRCC follows NS1 and EW1 and flows under I-95 to Indian River City. The District never indicated that NS1 and EW1 could be cleaned out under a maintenance exemption as part of the IRCC or otherwise. Mr. Frank Meeker, the Ombudsman for the District, met with Mr. Michael Moehle at least three times between February 14 and April 22, 1996, to discuss the problems of high water on Modern property. Mr. Meeker indicated that a culvert needed to be placed under the driveway in the IRCC, which was later done by Brevard County, and that NS1 needed to be cleaned out to eliminate the blockage south of SR 50 in the vicinity of the Titusville Waste Water Treatment Plant. NS1 was cleaned out south of SR 50. Mr. Meeker reviewed the work and indicated to Mr. Michael Moehle that the work constituted borderline maintenance. Mr. Meeker never indicated that the excavation of NS1 and EW1 north of SR 50 would be exempt from statutory permitting requirements. Mr. Meeker has neither the actual nor apparent authority to rule on permit requirements. Mr. Meeker sent a letter to Mr. Charles Moehle in April 1996. Nothing in that letter suggests that the excavation of NS1 and EW1 would be exempt from statutory permitting requirements. Disparate Treatment Respondents claim that the District treated them unfairly. The weight of the evidence shows that the action taken by the District did not result in disparate treatment. 9.2(a) Cracker Barrel-1, Cracker Barrel-2, and Lowe's Since 1996, the District has issued three permits for construction of different projects on property owned by Modern or Omni in the area of NS1 and EW1. The three projects involved significant impacts to wetlands. The three projects are referred to in this proceeding as Cracker Barrel-1, Cracker Barrel-2, and Lowe's. In determining whether a particular piece of property contains wetlands, the District relies on a statewide wetland delineation rule described in Section 373.421 and Rule 62.340. The District considers vegetation, soils, and hydrology to delineate wetlands. The District utilized this delineation rule when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District determines a mitigation ratio for construction on wetlands through a balancing process. The District weighs the quality of the wetlands on a particular construction site against the quality of the mitigation plan. The District relied on this same process when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. Cracker Barrel-1 involved approximately 4.5 acres of wetlands on a 5-acre site just south of Modern-1. The District issued a permit for the construction of Cracker Barrel-1 approximately two months after receipt of the application. Cracker Barrel-2 involved approximately 11 acres of wetlands on a 15-acre site. The District issued a permit for the construction of Cracker Barrel-2 approximately two months after receipt of the application. Lowe's is located east of I-95, north of SR 50, west of SR 405, outside the contested area, but adjacent to the contested area. Lowe's involved approximately 22 acres of wetlands on a 25-acre site. Lowe's was not an easy project to permit due to the extensive acreage and wetlands impacts. The District issued a permit for the construction of Lowe's approximately four months after receipt of the application. 9.2(b) Unnecessary Delay and Expense Respondents complain that the District unfairly increases the time and expense associated with permit applications through pre-application negotiations intended to resolve issues that typically arise when formulating a mitigation plan for construction on wetlands. Respondents contend that the delay before an application can be submitted is unreasonable. Respondents point to a delay of almost a year between the time Modern first complained in 1996 of flooding and the refusal of the District to approve any corrective action. Respondents also cite delays in pre-application negotiations for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District did not delay its investigation of the flooding allegedly caused by the Hacienda Road project. The District conducted an appropriate investigation and reasonably determined that the flooding was not attributable to the Hacienda Road project. The delays complained of by Respondents are reasonable incidents of good faith attempts by the District to effectuate its statutory responsibilities through mutual agreement. The weight of the evidence does not show that the delays complained of by Respondents constitute disparate treatment. The delays were not de jure delays that resulted from a design or intent on the part of the District to delay Modern and Omni in their construction and development ventures. The weight of the evidence shows that the delays were reasonably necessary to formulate mitigation plans for each construction project and to carry out the statutory obligations of the District prescribed in Sections 373.413 and 373.416. 9.2(c) Selective Exemption Respondents claim that the District is unfairly applying certain maintenance exemptions to the excavation carried out by Modern. Respondents complain that the District previously granted maintenance exemptions for projects carried out by entities unrelated to Respondents but denied any maintenance exemption for the excavation of NS1 and EW1. Activities covered by applicable permitting requirements either do or do not qualify for a maintenance exemption. No separate application is required for such an exemption. A person who performs work based on the assumption that the work qualifies for an exemption assumes the risk that the work does not qualify for the exemption. If the work is performed in violation of applicable permitting requirements, it may qualify for an after-the-fact permit or corrective action may be required. The District has previously granted relevant maintenance exemptions for a number of different projects carried out by entities unrelated to Respondents and has also denied maintenance exemptions in other instances including the excavation of NS1 and EW1. The weight of the evidence shows that the District is not applying maintenance exemptions to the excavation of NS1 and EW1 in a manner that results in disparate treatment of Modern or its co-respondents. Brevard County cleaned out a portion of NS1 south of SR 50 based on the mistaken conclusion that the work qualified for a maintenance exemption. After the District began this enforcement action against Modern, the District determined that the work did not qualify for a maintenance exemption and required Brevard County to apply for a permit. Brevard County applied for a permit, albeit belatedly. The District granted the permit because the work complied with applicable criteria and did not result in adverse impacts to wetlands or the Refuge. In another instance, the District discovered some ditch plugs in ditches adjacent to property owned by a person named "Dr. Broussard." The District requested Dr. Broussard to remove the plugs, and Dr. Broussard complied. 9.2(d) Selective Enforcement Respondents allege disparate treatment from the District on the ground that the District did not file an administrative complaint in the foregoing instances but filed such an action against Modern. However, the weight of the evidence shows that enforcement action was not reasonable in other instances because the District reached mutually agreeable resolutions with the regulated parties. The evidence shows that enforcement action was reasonably necessary in this proceeding. The District first became aware of the significance of the impacts of the excavation of NS1 and EW1 when the District received a letter from the Wildlife Service in March 1997. The District brought the matter to the attention of Modern. The District informed Modern of the seriousness of the situation, notified Modern that the excavation required a permit, and made Modern aware of the need to correct the situation by restoring the wetlands to their original condition. The District and Modern discussed various options for constructing weirs without reaching any agreement. Time was of the essence. When the District concluded that the parties were not going to reach agreement, the District undertook emergency action in May 1997 and filed the Administrative Complaint later in August 1997. The action taken by the District in this proceeding is consistent with the District's historical practice. When the District becomes aware of a potential violation, the District does not immediately file an administrative complaint. The District investigates the matter to confirm the existence and extent of a violation, if any, and makes reasonable efforts to resolve the matter informally. The District has not issued an emergency order prior to the excavation of NS1 and EW1 because an emergency order was not the most appropriate solution in other cases. However, the District has sought injunctions in circuit court against persons unrelated to Respondents. In this proceeding, an emergency order better served applicable statutory mandates to the District because the Wildlife Service was willing to perform the work needed to rectify the condition that existed within the Refuge. This combination of factors made an emergency order particularly well suited and practicable for carrying out the statutory responsibilities of the District. The weight of the evidence does not show that the District threatened criminal prosecution against Modern or its individual shareholders. The District has not referred this matter for criminal prosecution. However, the issue of whether a threat of criminal sanctions occurred is fairly debatable, even if it is immaterial to estoppel, the permitting requirements, and the exemption requirements. Paragraph 27 in the Administrative Complaint does put Modern on notice that Sections 373.129(5) and 373.136 authorize the District to file a cause of action in circuit court in which the District may seek civil penalties up to $10,000. Section 373.430(3)-(5) puts Modern on notice of the potential for criminal penalties in circuit court. In any event, Modern failed to prove that the District is estopped from requiring a permit or applying applicable exemption requirements to the excavation of NS1 and EW1. Modern neither applied for nor obtained a permit for the excavation of NS1 and EW1. Unless Modern qualifies for one of the exemptions authorized by statute or rule, Modern violated Section 373.430(1)(b) and is subject to the actions and penalties authorized in Sections 373.119 and 373.129(1), (3), (6), and (7). Exemptions Modern claims it is entitled to six exemptions from the permitting requirements in Sections 373.413 and 373.416. Four of the exemptions are found in Rules 40C-4.051(2)(a)1, 40C- 4.051(2)(a)3, 40C-4.051(11)(b), and 40C-4.051(11)(c). The other two exemptions are found in Section 403.813(2)(f) and (g). Two Grandfather Exemptions Rule 40C-4.051(2)(a) 1 and 3, in relevant part, authorizes exemptions for systems such as NS1, EW1, and the larger system, if they are: located in prescribed areas; and were constructed and operating prior to December 7, 1987, and March 2, 1974, respectively. NS1, EW1, and the larger system are located in the areas described in each rule. On the requisite dates, however, they were not constructed and operating. Rule 40C-4.051(2)(c), in relevant part, provides that the exemptions in Rule 40C-4.051(2)(a) apply only to those systems set forth in plans, specifications, and performance criteria existing on or before December 7, 1983, or March 2, 1974, as the case may be, and then only to the extent: 2. Such system is maintained and operated in a manner consistent with such plans, specifications and performance criteria. Rule 40C-4.051(2)(c) 2. Rule 40C-4.051(3), in relevant part, provides that the exemptions listed in Rule 40C-4.051(2) "shall not apply" to those systems which on either December 7, 1983, or March 2, 1974, as the case may be: . . . have ceased to operate as set forth in such system's plans, specifications and performance criteria. Modern does not qualify for either of the exemptions in Rule 40C-4.051(2)(a) 2 or 3. As a threshold matter, the weight of the evidence does not establish plans, specifications, or performance criteria (the "original criteria") for NS1, EW1, or the larger system on either December 7, 1983, or March 2, 1974. Even if the evidence did establish the original criteria and if the excavation merely restored NS1 and EW1 to the original criteria, the evidence clearly shows that neither NS1, EW1, nor the larger system were constructed and operating in accordance with the original criteria on the prescribed dates. Rather, the evidence shows that NS1, EW1, and the larger system had become seriously degraded and no longer operated at their post- excavation levels. Two Maintenance Dredging Exemptions Modern claims that it qualifies for the exemption in Rule 40C-4.051(11)(b). That rule, in relevant part, exempts from the permitting requirements in Sections 373.413 and 373.416: The . . . maintenance dredging of existing manmade canals [and] channels . . . where the spoil material is . . . removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into wetlands or other surface waters, provided no more dredging is performed than is necessary to restore the canal [and] channels . . . to original design specifications and provided that control devices are used at the dredge site to prevent . . . deleterious substances from discharging into adjacent waters during maintenance dredging. . . . This exemption shall not apply to the removal of a natural . . . barrier separating a canal . . . or system from adjacent wetlands or other surface waters. Prior to the amendment of Section 403.813(2)(f) in October 1997, the maintenance exemption in the statute was substantially similar to that in the quoted rule. The two exemptions are first discussed together as they existed prior to the statutory amendment in 1997. The exemption requirements created by the 1997 amendments are discussed separately. 10.2(a) Requirements Before 1997 The excavation of NS1 and EW1 in January 1997 was "dredging" within the meaning of Section 373.403(13). It was excavation by any means in surface waters defined in Section 373.019(16) or wetlands delineated in Section 373.421(1). The excavation also connected Pond-1, a water body, to surface waters or wetlands. 10.2(a)(1) Canals, Channels, or Ditches The maintenance dredging exemptions authorized in Section 403.813(2)(f) and Rule 40C-4.051(11)(b) apply only to canals or channels. The exemptions do not apply to drainage ditches. Neither Section 373.403 nor Rule 40C-4.021 define the terms "canals, channels, or ditches." However, the terms are defined in Section 403.803(2),(3), and (7). The definitions in Section 403.803 may be used to define the terms of the exemptions in Rule 40C-4.051(11)(b). In October 1995, the legislature consolidated the dredge and fill permitting provisions in Chapter 403 with the permitting provisions for the management and storage of surface waters in Chapter 373, Part IV. Section 403.813(2) expressly provides that the exemptions authorized in Section 403.813(2) apply to the permit requirements in Chapter 373. Section 373.413(9) directs water management districts in the state to incorporate the provisions of Rule 62-312.050 into the rules of the districts and to rely on the existing provisions governing the dredge and fill program when implementing the rules of the districts. Neither NS1 nor EW1 is a canal within the meaning of Section 403.803(2). Although each is a manmade trench, the bottom of neither NS1 nor EW1 is normally covered by water within the meaning of Section 403.803(2). Portions of NS1 and EW1 which are upstream from high spots or elevation controls are "normally" covered by water. However, portions which are downstream of high spots are "normally" not covered by water during low-flow conditions and dry conditions in a normal or wet year, and during dry years. Neither NS1 nor EW1 is a channel as defined in Section 403.813(3). Although each is a trench, the length of NS1 and EW1 are not "normally" covered "entirely" with water during low-flow conditions and dry conditions in a normal year or wet year, and during dry years. Neither is the bed of a stream or river. NS1 and EW1 are each a drainage ditch or irrigation ditch within the meaning of Section 403.803(7). Each is a man- made trench created to drain water from the land or to transport water for use on the land, and neither is built for navigational purposes. NS1 and EW1 satisfy the definition of a drainage ditch or irrigation ditch irrespective of the degree to which the bottom of each is "normally" covered by water: upstream or downstream of high spots or control elevations; during low-flow conditions and dry conditions in normal or wet years; and during dry years. 10.2(a)(2) Additional Requirements Even if NS1 and EW1 were canals or channels, their excavation in 1997 does not qualify for the exemption in Rule 40C-4.051(11)(b). The excavation fails to satisfy several additional requirements for the exemption. The spoil material from the excavation was not placed on an upland spoil site which prevented the escape of spoil material and return water into wetlands and surface waters within the meaning of Section 373.019(16). Rather, Modern placed the spoil material in wetlands. Modern placed approximately 1.5 acres of fill in wetlands in the form of spoil material from the excavation. Modern placed approximately .75 acres of such fill in the wetlands and surface waters north of Marsh-1. 10.2(a)(3) Original Design Specifications More dredging was done than was necessary to restore NS1 and EW1 to their original design specifications. The weight of the evidence does not show the original design specifications for NS1 and EW1, including the bottom elevations, widths, slopes, and other pertinent specifications typically prescribed in original designs. However, the evidence does show the original condition of NS1 and EW1 immediately before their excavation. More dredging was done than was necessary to restore NS1 and EW1 to their original condition before the excavation. 10.2(a)(4) Natural Barrier The exemptions in Section 403.813(2)(f) and Rule 40C- 4.051(11)(b) do not apply to the removal of a natural barrier separating a canal from adjacent wetlands or other surface waters. The term "barrier" is not defined in Sections 373.403 or 403.803; or in Rule 40C-4.021. The term must be defined by its common and ordinary meaning. A barrier is something that acts to hinder or restrict. The high spots that existed in NS1 and EW1 before their excavation functioned as control elevations. The high spots were natural barriers during low-flow conditions, during dry conditions in normal and wet years, and during dry years. They acted to hinder or restrict the flow of water through EW1 and NS1 into adjacent wetlands and eventually to other surface water through the Addison Canal west toward the St. Johns River. The 3-4 foot wall of water that flowed down NS1 to SR 50 immediately after the excavation in 1997 provided vivid evidence of the effectiveness of the high spots that formed two-foot barriers before the excavation. The excavation did not use control devices which prevented deleterious substances from discharging into adjacent waters during maintenance dredging. The term "waters" is defined in Section 403.031(13) to include wetlands. The term is also defined in Section 373.016(17) and Rule 40C-4.021(29) in a manner that includes wetlands. Spoil material was placed in adjacent waters and not contained by adequate control devices. 10.2(b) Requirements After 1997 Additional provisions not found in Rule 40C- 4.051(11)(b) were added to Section 403.813(2)(f) in October 1997. In relevant part, the additional provisions extend the exemption in Section 403.813(2)(f) beyond canals and channels to include: . . . previously dredged portions of natural water bodies within drainage rights-of-way or drainage easements which have been recorded in the public records of the county . . . provided that no significant impacts occur to previously undisturbed natural areas, and provided that . . . best management practices for erosion and sediment control are utilized to prevent . . . dredged material . . . and deleterious substances from discharging into adjacent waters during maintenance dredging . . . . (emphasis supplied) 10.2(b)(1) Retroactivity As a threshold matter, the additional provisions in Section 403.813(2)(f) did not take effect until October 1997. The excavation of NS1 and EW1 occurred in January 1997. 10.2(b)(2) Drainage Easements Modern claims that it was not required to obtain a permit to excavate NS1 and EW1 because Modern possesses drainage easements for NS1 and EW1 which are recorded in the public records of Brevard County, in accordance with the requirements of Section 404.813(2)(f). Modern claims that it is entitled to maintain its drainage easements. Assuming arguendo that Respondents possess drainage easements and that the drainage easements are included in the exemption, the owner of drainage easements is no less subject to statutory permitting and exemption provisions than is the owner of the fee simple estate in land through which an easement runs. The existence of drainage easements is only one of the requirements in Section 403.813(2)(f) for an exemption from a permit. Modern must also show that it satisfies the other exemption requirements in Section 403.813(2)(f). 10.2(b)(3) Other Requirements The excavation of NS1 and EW1 resulted in significant impacts to previously undisturbed natural areas. The area subject to significant impacts was not limited to the excavation site but included 600-800 acres inside the Refuge. Modern failed to utilize best management practices to prevent dredged material and deleterious substances from discharging into adjacent waters during dredging. Dredged material and deleterious substances were deposited into adjacent wetlands. Two Maintenance Exemptions Rule 40C-4.051(11)(c), in relevant part, provides that no permit is required for the maintenance of "functioning . . . drainage ditches . . ." if: The spoil material is deposited on a self-contained upland spoil site which will prevent the escape of the spoil material and return water into wetlands or other surface waters. [and] * * * 3. . . . no more dredging is . . . performed than is necessary to restore the . . . drainage ditch to its original design specifications. The quoted requirements for the exemption in Rule 40C- 4.051(11)(c) are substantially identical to the requirements for the exemption in Section 403.813(2)(g). However, the exemption in Rule 40C-4.051(11)(c) applies to "functioning" ditches while the exemption in Section 403.813(2)(g) authorizes an exemption for "existing" ditches. 10.3(a) Functioning or Existing The terms "functioning" and "existing" are not defined in Sections 373.403, 403.803, or in Rule 40C-4.021. Each term must be defined by its common and ordinary meaning. The terms "functioning" and "existing" are not equivalent terms. The statutory provision authorizing maintenance exemptions for "existing" ditches precludes a maintenance exemption for initial "construction" of ditches. Existing ditches do not function if they are totally occluded by debris, silt, or vegetation that prevent any conveyance of water. Alternatively, a ditch that is dammed by a man-made device would not function but would exist. Before the excavation in January 1997, NS1 and EW1 each functioned to the extent that it performed the action for which it was particularly fitted or employed, albeit at a degraded capacity. Each existed irrespective of its level of function. The culverts for NS1 under SR 50 and south of SR 50 and those for EW1 under I-95 belie the District's contention that NS1 and EW1 neither functioned nor existed before the excavation. If the contention were correct, it would mean the construction of the culverts under SR 50 and south of SR 50 was a meaningless expenditure of taxpayer dollars. The District's contention suffers another internal inconsistency. If NS1, EW1, and the larger system were not functioning before the excavation, they may have failed one or more of the threshold requirements in Rule 40C-4.041(2)(b)2 because they did not "serve" 40 acres or any other area. NS1 and EW1 functioned and existed before the excavation. NS1 and EW1 each conveyed water when water exceeded high spots during dry and wet conditions in dry, normal, and wet years. EW1 conveyed water into NS1. NS1 conveyed water south through several culverts into the Addison Canal and west toward the St. Johns River. The bottom line is, the works worked. Even though NS1 and EW1 were "functioning" and "existing" before the excavation in January 1997, the excavation did not qualify for the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The excavation failed to satisfy additional requirements in the statute and rule. 10.3(b) Additional Requirements The excavation did not deposit spoil material on a self-contained upland spoil site which prevented the spoil material and return water from escaping into wetlands and other surface waters. The dredging was more than was necessary to restore NS1 and EW1 to their original design specifications. Unadopted Rule Respondents claim that the District's proposed agency action is based on a policy which satisfies the definition of a rule in Section 120.52(15) but which has not been promulgated in accordance with the rulemaking procedures prescribed in Section 120.54 (an "unadopted rule"). Respondents claim the unadopted rule restricts "maintenance" exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) to routine custodial maintenance; and to existing ditches that also function. Section 120.57(1)(e), in relevant part, provides: . . . Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject to de novo review by an administrative law judge . . . . . . . The agency must demonstrate that the unadopted rule . . . [satisfies the requirements of Sections 120.57(1)(e)2a-g] . . . . (emphasis supplied) If Respondents show that the District's proposed agency action is based on an unadopted rule and that the District has relied on the rule to determine the substantial interests of Respondents, then the agency must prove-up its unadopted rule by demonstrating in a de novo review that the unadopted rule satisfies the requirements of Section 120.57(1)(e). 11.1 Rule Defined Section 120.52(15), in relevant part, defines a rule to mean: . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and . . . includes the amendment or repeal of a rule. The term does not include: Internal management memoranda which do not affect either the private interests of any person or plan or procedure important to the public and which have no application outside the agency issuing the memorandum . . . . Section 120.52(15) establishes two conjunctive requirements as a threshold test for a rule. There must be a statement; and the statement must be one that is of general applicability. A statement of general applicability must also satisfy one or more disjunctive requirements. The statement must either implement, interpret, or prescribe law or policy; describe the practice requirements of an agency; amend or repeal a rule; or impose any requirement or solicit any information not required by statute or rule. 11.1(a) Statement The District published a working definition of routine custodial maintenance in a memorandum dated November 20, 1989 (the "Memorandum"). The Memorandum was authored by the District's Chief Engineer and approved by the Director of the Department of Resource Management (the "Director"). The Memorandum directs field office directors and compliance coordinators in regard to ditch work and routine custodial maintenance. In relevant part, the statement expressed in the Memorandum provides: This memorandum serves to clarify the District policy on: 1) the type of ditch maintenance work which qualifies for exemption from . . . permitting as specified in rule section 40C-4.051(2)(a)2.a . . . and, 2) procedures for verification that the work qualifies for this exemption. (emphasis supplied) This discussion only applies to work in ditches which trips . . . [a] permit threshold. . . . In many cases, none of these thresholds would be exceeded. Section 40C-4.051(2)(a)2.1. . . . specifically exempts the "maintenance" of "systems" in existence prior to December 7, 1983. Section 403.813(2)(f) and (g) also exempts the "maintenance dredging of canals and ditches. [sic] These exemptions, however, only apply to what is defined as "routine custodial maintenance." Work that results in the alteration of the system is not exempt and requires a permit from the District if a threshold is exceeded. Section 3.2.1 of the . . . Applicant's Handbook defines "alter" as "works beyond maintenance in its original condition." (emphasis supplied) Working Definition of "Routine Custodial Maintenance" (emphasis not supplied) Two basic criteria: The proposed maintenance work must be for the purpose of restoring the ditch system to its original design specifications. Such specifications would normally include: invert elevation, bottom width, side slopes, top width, ditch lining, ditch bottom profile (slope). In addition, such specifications may include culvert structures, including culvert type, size, invert elevation, length, slope and endwall detail. Maintenance work conducted under this exemption must not alter the hydraulic capacity or hydrologic functions of the ditch from that provided by the original design. The maintenance work must occur on a regular basis. The frequency of maintenance will be variable and dependent on site specific conditions and the level of service provided by the particular ditch system. However, for maintenance work to be exempt, the ditch should have been maintained to prevent deterioration to such a degree that it no longer functions as intended. In other words, routine custodial maintenance is limited to maintaining the ditch rather than re-building the ditch. As a rule of thumb, most ditch systems require maintenance at least once every ten to fifteen years. In some cases, more frequent maintenance is required to prevent a ditch form becoming non-functional. Examples of work which meet the test of "routine custodial maintenance" (provided that the ditch has been periodically maintained): Removal of accumulated silt and debris. Clearing of vegetation from the ditch. Clearing of culverts blocked by sediment or debris. Replacement of damaged culvert structures with same size culverts. Regarding and revegetating ditch side slopes. Examples of work which do not meet the test include: increasing the hydraulic capacity by deepening the ditch bottom and/or increasing the ditch cross section; lining an existing ditch with concrete or other material to improve hydraulic capacity; replacing existing culvert structures with different culvert sizes or placement of new culverts at different invert elevations; any maintenance dredging where spoil material is placed in wetlands; dredging or other maintenance work in natural system. Procedures for conducting maintenance work according to the . . . exemption (Section 40C-4.051(2)9a)2.a. . . . [sic] (emphasis not supplied) If the work is not routine custodial maintenance, the entity performing the work is responsible for obtaining the required permits prior to starting work. (emphasis supplied) Routine custodial maintenance may be conducted without contacting the District. However, upon request, the district will provide written verification that the work is exempt after receiving sufficient information to determine that the work is routing custodial maintenance. This information must include . . . evidence of the original design specifications as described below: * * * Case 2. No Design Specifications (Plans) Exist (emphasis not supplied) this will be the case for many ditch systems prior to . . . effective date . . . or not subject to permitting. . . . In this case, it is much more difficult to determine if the work qualifies for the exemption. The following may be used by the applicant to verify that the work qualifies for an exemption: Work will be limited to one or more of the maintenance activities listed above . . . . Other evidence as to the original specifications of the ditch system, such as: historical and current photographs and aerial photographs; contracts, bid documents, etc.; specifications for typical ditch sections; individuals attesting to the original ditch dimensions (such as contractors, former or current government employees); information on the soils and vegetation in the ditch. . . . Memorandum at unnumbered pages 1-3. The Memorandum is published evidence of the agency statement. However, the statement expressed in the Memorandum exists and is applied by the District independently of the Memorandum. The District expresses and applies the statement each time the District enforces agency action based on the statement and not just when the agency publishes a particular document that captures the statement in writing. The existence, terms, and scope of the statement are measured on a de facto basis by the effect of the statement. That effect emerges from all of the evidence of record including, but not limited to, the publication of the statement in various documents such as the Memorandum. The District illustrates in its PRO and PFO how easily an agency statement can elude the four corners of a particular document on which it is written and emerge from the evidence as an unwritten statement with broader applicability than that stated in a particular document. In relevant part, the District states: 9. The 1989 memorandum was not written to explain the maintenance exemption for . . . drainage ditches in 40C-4.051(11)(c) . . . because this rule did not exist when the memorandum was written. It was written to explain the grandfathering exemption at 40C- 4.051(2)(a) . . . which exempts the "maintenance" of "systems" in existence prior to December 7, 1983 from the permitting requirements of Chapter 40C-4. . . . (emphasis supplied) * * * Modern claims that the ditch excavation is exempt under the ditch maintenance exemption in 40C-4.051(11)(c). . . . (emphasis supplied) Not all ditch excavation is exempt under this exemption, just routine custodial maintenance . . . having a minor environmental impact. "Routine" indicates something that is done on a regular basis. (emphasis supplied) The maintenance exemption for ditches in paragraph 40C-4.051(11)(c) . . . is based on the exemption in paragraph 403.813(2)(g) . . . . 13. . . . the ditches that are subject to the grandfathering exemptions under 40C- 4.051(2) . . . are the same ditches that may also be exempt under the statute. . . . PFO at 7; PRO at 28. Although the Memorandum purports to limit the statement to the "grandfathering exemption" in Rule 4.051(2)(a), District practice relies on the statement to apply the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The District has applied the statement consistently since at least 1984. 11.1(b) General Applicability The statement expressed in the Memorandum is a statement of general applicability within the meaning of Section 120.52(15). In effect, the statement creates rights, requires compliance, or otherwise has the direct and consistent effect of law. The District submitted evidence intended to refute the general applicability of the agency statement by showing that the District does not rely on the Memorandum. The District contends that it has never relied on the Memorandum separate and apart from the statutes and rules interpreted by the Memorandum; that it has never initiated an enforcement action that relies on the Memorandum; that the Director forgot about the Memorandum after signing it; and that District staff do not utilize the Memorandum on a regular basis. The District misses the point. The general applicability of a statement is not determined by the applicability of a particular document in which the statement is expressed. The general applicability of a statement is determined by the effect of the statement evidenced by all of its applications irrespective of the label assigned by the agency to each application. The Director may have forgotten that he signed the Memorandum, but the record shows that neither he nor his staff forgot about the statement expressed in the Memorandum that maintenance exemptions apply only to "routine custodial maintenance." The record is replete with examples of how the District applies the statement with general applicability whenever the District construes the term "maintenance" in Section 403.813(2)(f) and (g); in Rule 40C-4.051(2)(a) 2 and 3; and in Rule 40C-4.051(11)(b) and (c). The District illustrates in its PRO how the statement is applied with the direct and consistent effect of law. In relevant part, the District states: Florida Courts and agencies have consistently interpreted and applied the maintenance exemption to include the requirement that dredging must be . . . part of routine custodial maintenance (emphasis supplied) District PRO at 83. The statement expressed in the Memorandum is generally applicable within the meaning of Section 120.52(15). The statement defines the scope of the permit requirement in Section 373.416 and the scope of the exemption in Section 403.813(2)(g). The District consistently applies the statement to create rights, to require compliance, or to otherwise have the direct and consistent effect of law. 11.1(c) Law and Policy Although the statement implements, interprets, or prescribes law or policy, it does not do so by defining routine custodial maintenance as work which restores a ditch to its original design specifications. The requirement that maintenance must be no more than is necessary to restore a ditch to its original design specifications is present in each of the "maintenance" exemptions authorized in Section 403.813(2)(f) and (g) and in Rules 40C-4.051(2), 40C-4.051(11)(b), and 40C- 4.051(11)(c). The statement implements, interprets, or prescribes law or policy by applying maintenance exemptions only to routine custodial maintenance. The restricted application of maintenance exemptions effectively amends the definitions of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). The statement expressed in the Memorandum first refers to the exemptions in Section 403.813(2)(f) and (g). The statement then declares that "these exemptions . . . only apply to what is defined as 'routine custodial maintenance.'" Unlike the agency statement, Section 373.403(8) and Rule 40C-4.021(20) define "maintenance" to exclude "routine custodial maintenance." Because routine custodial maintenance is "not maintenance," routine custodial maintenance is neither subject to the maintenance permitting requirements in Section 373.416 nor required to satisfy the maintenance exemption requirements in Section 403.813(2)(f) and (g). Maintenance has only one definition. That single definition defines "maintenance" to exclude routine custodial maintenance from maintenance that is subject to the exemption requirements in Section 403.813(2)(f) and (g). There is not another definition that includes routine custodial maintenance in maintenance that must satisfy maintenance exemption requirements. Routine custodial maintenance is the definitional complement to maintenance. Remedial work that is routine custodial maintenance is "not maintenance." Remedial work that is not routine custodial maintenance is maintenance that must either obtain a maintenance permit or satisfy applicable "maintenance" exemption requirements. The terms "exclude" and "exempt" are not synonymous. Routine custodial maintenance that is excluded from the definition of maintenance is "not maintenance" and need not qualify as exempt maintenance. Maintenance that is not routine custodial maintenance is not excluded from the definition of maintenance. Included maintenance is subject to the maintenance permitting provisions but may qualify for a maintenance exemption if the maintenance satisfies the requirements prescribed for maintenance exemptions. 11.1(d) Practice and Procedure Even if the District statement did not amend existing statutes and rules, the statement describes the practice requirements for the District. It prescribes the criteria to be used in applying the ". . . working definition of 'Routine Custodial Maintenance.'" The statement prescribes information that normally should be included in original design specifications. It prescribes mandatory practice requirements including prohibitions against: any alteration of hydraulic capacity or hydrologic function beyond original design; and maintenance at less than regular intervals. The statement describes eligibility requirements used by the District. The statement provides that a permit is required, "If the work is not routine custodial maintenance . . . ." The statement describes information that must be provided in any request for verification that work is exempt. Such information must include ". . . evidence of original design specifications. . . ." Finally, the statement describes the type of evidence that will be considered by the District when original design specifications are not available. 11.1(e) Internal Management Memorandum The Memorandum is not an internal management memorandum that is excluded from the definition of a rule pursuant to Section 120.52(15)(a). The Memorandum has application outside of the agency. It affects the private interests of Respondents. It also affects a plan or procedure important to the public. Even if the Memorandum were an internal management memorandum, the agency statement exists and is applied by the agency independently of the Memorandum. 11.2 Prove-up Requirements: Section 120.57(1)(e) The statement evidenced in the Memorandum and elsewhere in the record is an unadopted rule within the meaning of Section 120.57(1)(e). The statement is defined as a rule in Section 120.52(15) but is not adopted as a rule in accordance with the rulemaking procedures prescribed in Section 120.54. The District relied on the unadopted rule to determine the substantial interests of Respondents. The District must show that the unadopted rule satisfies the requirements of Section 120.57(1)(e)2a-g. The unadopted rule satisfies the requirements of Section 120.57(1)(e)2a, part of c, and d. However, the rule does not meet the requirements of Section 120.57(1)(e)2b, the remainder of c, e, f, and g. 11.2(a) Powers, Functions, and Duties The unadopted rule is within the range of powers, functions, and duties delegated by the legislature within the meaning of Section 120.57(1)(e)2a. Section 373.416, in relevant part, delegates authority to the District to require permits and too impose conditions that are reasonably necessary to assure that the "maintenance" of any stormwater system, or works, complies with the provisions of Chapter 373, Part IV, and applicable rules promulgated pursuant to Chapter 373. Interpretation and application of the maintenance exemption authorized in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) are within the range of powers delegated in Section 373.416. 11.2(b) Bridled Discretion The unadopted rule does not vest unbridled discretion in the District within the meaning of Section 120.57(1)(e)2c. The definition of routine custodial maintenance is bounded by numerous examples that do and do not qualify as routine custodial maintenance. The definition identifies the technical criteria to be used in the working definition of routine custodial maintenance. The definition prescribes reasonable procedures for conducting maintenance under an exemption, and formulates objective requirements for determining the sufficiency of original design specifications. 11.2(c) Arbitrary or Capricious The unadopted rule is not arbitrary or capricious within the meaning of Section 120.57(1)(e)2d. The rule has a rational basis and a legitimate purpose. It is based on fact and logic and seeks to prevent harm to the water resources of the District by requiring permits to review non-exempt maintenance activities which may have the potential for adverse environmental impacts. The definition of routine custodial maintenance is based on a fundamental engineering reality. If a ditch is not maintained, it will, as a general rule, fill-in and diminish in function and capacity. Ditches fill-in at different rates, depending on site- specific conditions, the level of service provided by the ditch, and the level of work performed during each maintenance interval. Ditches with high water-velocity may not require maintenance as frequently in order for the maintenance to satisfy the requirement that it be performed regularly. NS1 and EW1 must be maintained relatively frequently in order for maintenance to qualify as routine maintenance. The water velocity in these ditches is low because the surrounding area is flat and because water velocity is controlled by culverts and water levels south of SR 50. The low water velocities contribute to the filling of NS1 and EW1 with sediment. The high sediment content in the surrounding native lands also contributes to the filling of NS1 and EW1. The Crane Creek ditch in Brevard County illustrates the relativity of the frequency standard. In that case, the District determined that maintenance of the Crane Creek ditch qualified for a maintenance exemption approximately 20 years before when the ditch had last been maintained. There was considerable slope in the ditch. High water velocities in the ditch kept the ditch well scoured. In addition, the surrounding area was highly developed and covered with either pavement or lawns which provided little sediment material. It is theoretically possible for maintenance to be routine even though the interval of maintenance is 50 years. As a practical matter, however, a maintenance interval of 20 years represents the upper limit for maintenance in the general region of NS1 and EW1. Time is not the only factor in determining whether maintenance is routine. The frequency with which work must be performed to be routine depends on site-specific conditions as well as the level of service provided both by the particular ditch and by the particular work performed at each maintenance interval. The bottom line in determining if maintenance is routine custodial maintenance is whether the maintenance is regular enough to maintain continuity of function. Continuity of function is important to persons upstream and downstream of a ditch. Once a ditch has become nonfunctional, other property uses may occur upstream or downstream of the ditch in reliance upon the fact that the ditch is no longer functional. 11.2(d) Modifies or Contravenes The unadopted rule modifies or contravenes the specific law implemented in violation of Section 120.57(1)(e)2b. For reasons stated in earlier findings and incorporated here by this reference, the unadopted rule modifies and contravenes Sections 373.403(8), 373.416, and 403.813(2)(g). The unadopted rule also modifies and contravenes Rules 40C-4.021(20), 40C- 4.051(2)(a) 2 and 3, and 40C-4.051(11)(c). The term "maintenance" is defined in Section 373.403(8) to exclude routine custodial maintenance. By limiting maintenance exemptions to routine custodial maintenance, the unadopted rule transforms the statutory exclusion of routine custodial maintenance into a statutory inclusion. The unadopted rule modifies and contravenes the specific law implemented in another way. The unadopted rule exempts only the maintenance of "systems." In the statement of criteria, the Memorandum states that work must be done to restore the "ditch system." However, statutory maintenance exemptions are not limited to systems. They apply to individual canals, channels, and drainage ditches. Similarly, Sections 373.413 and 373.416 require permits for works such as individual ditches as well as systems. By limiting the maintenance exemptions to systems, the unadopted rule modifies and contravenes the specific law implemented. 11.2(e) Vague and Inadequate Standards The limits on discretion in the unadopted rule do not grant unbridled discretion to the District. However, some of the standards imposed in the rule are vague and inadequate in violation of Section 120.57(1)(e) 2c. The unadopted rule states two sets of criteria for a working definition of routine custodial maintenance. The first set of criteria address the purpose of the work performed. The second set of criteria address the interval or regularity of the work performed. The unadopted rule states that the purpose of routine custodial maintenance must be to restore the ditch to its "original design specifications." During testimony at the hearing, however, the District explained that the purpose of routine custodial maintenance could be to restore the ditch to its "existing function." A discussion in the proposed findings of the District's PRO illustrates the ambiguity: 64. If a ditch has filled in over a number of years so that it no longer retains its original function but does convey some water during high rain events, the ditch could not be cleaned out to its original design under the maintenance exemption. . . . To the extent that it still had some function that was usable for the surrounding area, it could be maintained to maintain that existing level of function. . . . (emphasis supplied) District PRO at 31. The interval at which work must be performed to satisfy the definition of routine custodial maintenance is vague and inadequate in the unadopted rule. In the Memorandum, the unadopted rule states that most ditch systems in Florida require maintenance once every 10 to 15 years. At the hearing, however, District witnesses who were asked to explain the District policy stated that ditches in Florida typically lose their function if not maintained every five to ten years. A range of 5 to 15 years is too vague to provide an adequate standard by which regulated parties are able to ascertain whether they are in compliance with the rule. The definition of routine custodial maintenance will necessarily vary with site-specific conditions of the ditch. However, it is clear from the evidence that the unadopted rule defines the purpose and interval of routine custodial maintenance by vague standards that can vary substantially with the person who is interpreting the unadopted rule. Standards prescribed in the unadopted rule are vague and inadequate in another aspect. Time is not the only factor considered in the unadopted rule to determine whether work is routine and custodial. Maintenance must be frequent enough to maintain a continuity of function for a particular ditch. Continuity of function suggests that function may be measured over a continuum of time. However, the unadopted rule does not quantify the continuum and does not identify the site- specific conditions that will be considered in assessing continuity of function during any particular continuum. The unadopted rule does not state whether the site-specific conditions will be assessed during low-flow conditions in dry years, normal years, or wet years; or whether alternating dry and wet conditions within each type of year also factor into the formula for continuity of function. The unadopted rule does not identify the relative weight, if any, assigned by the agency to these and other site specific-conditions used in the formula for determining continuity of function. 11.2(f) Due Notice The unadopted rule is being applied to Respondents without due notice in violation of Section 120.57(1)(e)2e. An agency cannot provide adequate notice of vague and inadequate standards contained in the unadopted rule; notice of vague and inadequate standards is inherently vague and inadequate. Such notice does not provide regulated parties with due notice of the standards by which they can judge their compliance with the rule. 11.2(g) Evidence of Support The unadopted rule is not supported by competent and substantial evidence within the meaning of Section 120.57(1)(f). Although the technical standards used to define routine custodial maintenance in the unadopted rule are supported by competent and substantial evidence, the basis for the application of that definition is unsupported. The technical standards used to define routine custodial maintenance in the unadopted rule are matters infused with agency expertise and should not be overturned unless clearly erroneous. The technical standards are not clearly erroneous and are supported by competent and substantial evidence. The standards used by the District to apply the definition of routine custodial maintenance are not infused with agency expertise. They are infused with the District's legal interpretation of relevant case law and, in particular, one circuit court case in 1984. Evidence submitted by the District does not support the standards used by the District to apply the unadopted rule. The District contends that the limitation of maintenance exemptions to routine custodial maintenance in the unadopted rule implements and reiterates principles developed in St. Johns River Water Management District v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 7 Fla.Supp. 2d 61 (9th Judicial Circuit of Florida, October 29, 1984), affirmed, Corporation of President of Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Management District, 489 So. 2d 59 (Fla. 5th DCA 1986), rev. denied, 496 So. 2d 142 (Fla. 1986). As the trial court did, the parties in this proceeding refer to the decision in Latter-Day Saints as the "Deseret" case ("Deseret"). The District asserts that the unadopted rule is intended to ". . . reiterate the Deseret holding regarding 'routine custodial maintenance' . . .". The District also claims that it: . . . relied on the lower court Deseret decision, as well as the common meaning of the terms and the common things that you look for in what is an original design specification. The District's policy [is] to require compliance with the Deseret holding. District PFO at paragraph 13, page 9. A determination of whether the unadopted rule is supported by competent and substantial evidence of the principles and holdings in Deseret requires a two-step factual examination. Factual findings must first identify the principles developed in Deseret and then elucidate whether the unadopted rule actually implements or reiterates those principles and holdings. In October 1982, the landowner in Deseret increased, by one foot, the height of a perimeter dike system originally constructed between 32 and 42 years earlier to prevent water from either getting into or out of the area protected by the dike. No work had been performed on the dike for approximately 25 years, and portions of the dike had failed or declined in the interim. The landowner claimed the work was exempt pursuant to the maintenance exemption authorized in Section 403.813(2)(g). The trial court entered three holdings in Deseret which are relevant to the authority relied on by the District for its unadopted rule. In relevant part, the trial court held in paragraphs 10 and 12 of its Conclusions of Law: 10. . . . The legislature excluded only routine custodial maintenance from the permitting requirements of Chapter 373. (emphasis supplied) 10. . . . the exemption applies only to routine custodial maintenance having a minimal adverse environmental effect. (emphasis supplied) 12. . . . Deseret has failed to meet the burden of proving entitlement to the maintenance exemption under Section 403.813(2)(g). . . . Deseret, 7 Fla.Supp. 2d at 66-67. The district court did not expressly rule on the trial court's holding that the maintenance "exemption" applies only to routine custodial maintenance. The district court expressly approved only the trial court holding that the legislature "excluded" routine custodial maintenance and the trial court holding that the evidence failed to show entitlement to the maintenance exemption. In relevant part, the district court said: We agree with the trial court's conclusion that the legislature intended to exclude only routine custodial maintenance . . . from permit requirements. We also agree that the Church was not entitled to a maintenance exemption because it failed to meet its burden of proving the original design specifications for the dike system. (emphasis supplied) Deseret, 489 So. 2d at 60-61. The unadopted rule imposes requirements supported by the only ruling in the circuit court decision that was not expressly approved by the district court in Deseret. The unadopted rule reiterates and implements a holding that appears only in the trial court decision. Any reasonable doubt as to the basis for the holding in Deseret was removed in 1993 by the First District Court of Appeal in SAVE the St. Johns River v. St. Johns River Water Management District, 623 So. 2d 1193 (Fla. 1st DCA 1993). In SAVE, the Sportsmen Against Violating the Environment contended, as the District does in this proceeding, that the maintenance exemption applies only to routine custodial maintenance. In rejecting that contention, the court explained the basis for the earlier decision in Deseret. The court stated: . . . the [Deseret] court held that the applicant seeking to rebuild dikes on ranch land was not entitled to a subsection 403.813(2)(g) maintenance exemption for two reasons: (1) the church had failed to carry its burden of proving the original specifications . . . , and (2) the rebuilding would require extensive work since the dikes had not been maintained for over 25 years, the dike system had subsided, and the dike failed to keep water off the ranch during that period. SAVE, 623 So. 2d at 1203. In SAVE, the court explicitly rejected the contention that the maintenance exemption applied only to routine custodial maintenance. The court entered the following ruling: This brings us to SAVE's third contention, that Smith wholly failed to qualify for an exemption under subsection 403.813(2)(g). This is a multifaceted argument that we reject in all respects. SAVE cites no . . . authority to support its contention that the exemption under this subsection is limited to "routine" or "custodial" maintenance that conceptually excludes refilling the breaks from the scope of the exemption. Subsection 403.813(2)(g) requires only that the dike be restored to "its original design specifications." (emphasis supplied) SAVE, 623 So. 2d at 1202. The District argues that the court in SAVE did not reject the contention that the exemption applies only to routine custodial maintenance but merely held that there was nothing in routine custodial maintenance that conceptually excludes the refilling of the breaks. The court goes beyond the "conceptual" realm in the next sentence when the court expressly states that Section 403.813(2)(g) requires "only" that works be restored to their original design specifications. The District cannot read the decision in SAVE in isolation from the plain language of Section 373.403(8). Section 373.403(8) provides more than a "conceptual" reason why the exemption in Section 403.813(2)(g) does not apply to routine custodial maintenance. Section 373.403(8) expressly states that maintenance "excludes routine custodial maintenance." The exemption authorized in Section 403.813(2)(g) applies only to maintenance defined in Section 373.403(8) to exclude routine custodial maintenance. Only maintenance that is not routine custodial maintenance must satisfy the requirements in Section 403.813(2)(g) for an exemption. Routine custodial maintenance is "not maintenance" and is not required to either obtain a maintenance permit or qualify for a maintenance exemption. 11.2(h) Regulatory Costs The District failed to show that the unadopted rule does not impose excessive regulatory costs on Respondents within the meaning of Section 120.57(1)(e)2g. It is true, as far as it goes, that regulatory costs incurred by a proposed activity are not excessive once a determination is made that the activity either is or is not routine custodial maintenance. As this proceeding illustrates, however, the regulatory expense that must be incurred to show that excavation is routine custodial maintenance can be substantial. Any such expense is excessive when it is incurred to satisfy a requirement that is not found in applicable statutes or rules. Effect of Unadopted Rule The District may not rely on the unadopted rule to affect the substantial interests of Respondents. The District failed to "prove-up" the requirements of Sections 120.57(1)(e)2b, c, e, f, and g. The proposed agency action is supported by the evidence-of-record in this proceeding without relying on the unadopted rule. For reasons stated in earlier findings and incorporated here by this reference, the District action taken in the Emergency Order and the action proposed in the Administrative Complaint are supported by the weight of the evidence after the unadopted rule is excluded from consideration. The excavation of NS1 and EW1 in January 1997 was not "routine custodial maintenance" based on the common and ordinary meaning of the term, rather than the unadopted rule. Part of the excavation of NS1, EW1, and the larger system was "maintenance," which must satisfy the requirements of any claimed exemptions in order to avoid applicable permitting requirements. That part of the excavation which was maintenance did not satisfy essential requirements for any of the "maintenance" exemptions in Section 403.813(2)(f) and (g) and Rules 40C- 4.051(2)(a), 40C-4.051(11)(b), and 40C-4.051(11)(c). The weight of the evidence did not show that: the "maintenance" consisted of only that "remedial work" which was necessary to return NS1 and EW1 to their original design specifications within the meaning of Section 403.813(2)(f) and (g) and Rule 40C- 4.051(11)(b) and (c) 3; spoil material was deposited on an upland soil site that prevented the escape of spoil material or return water, or both, into wetlands, other surface waters, or waters of the state within the meaning of Section 403.813(2)(f) and (g); and Rule 40C- 4.051(11)(b) and (c) 1; the excavation was performed in such a way that prevented deleterious dredged material or other deleterious substances from discharging into adjacent waters during maintenance within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); the excavation resulted in no significant impacts to previously undisturbed natural areas within the meaning of Section 403.813(2)(f); no natural barrier was removed which separated NS1 and EW1 from adjacent waters, adjacent wetlands, or other surface waters within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); and the excavation performed maintenance dredging on canals or channels within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b). That part of the excavation defined as an alteration of NS1, EW1, and the larger system is not entitled to the "maintenance" exemptions claimed by Respondents. Similarly, that part of the excavation defined as an operation of the ditches is not entitled to the "maintenance" exemptions claimed by Respondents. Pursuant to Sections 373.413 and 373.416, Modern was required to obtain a permit for the excavation of NS1, EW1, and the larger system in January 1997. Modern neither applied for nor obtained a permit for the excavation. Modern violated the permitting requirements authorized in Sections 373.413 and 373.416. Modern is subject to the proposed agency action in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order upholding the Emergency Order and directing Modern to undertake and complete, in a reasonable time and manner, the corrective actions described in the Administrative Complaint. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 15th day of June, 1999. COPIES FURNISHED: Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32399-1300 Liz Cloud, Chief Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, west Post Office Box 1429 Palatka, Florida 32178-1429 Marianne Trussell, Esquire Murray M. Wadsworth, Jr., Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 William H. Congdon, Esquire Mary Jane Angelo, Esquire Stanley J. Niego, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Allan P. Whitehead, Esquire Moseley, Wallis and Whitehead, P.A. 1221 East New Haven Avenue Post Office Box 1210 Melbourne, Florida 32902-1210
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
