The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
Findings Of Fact The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.
Recommendation From the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation reissue Permit No. 510852383 to Michael A. Millen. DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1985.
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
Findings Of Fact Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/ Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The subject property The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/ Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/ Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm. Applicable development regulations Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/ Rule 27F-8.03(5), Florida Administrative Code provides: Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat. Guidelines: * * * 5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . . Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. In areas where temporary removal of vegetation is necessary during construction, replanting of ground cover will be carried out as soon as possible. The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized add given due consideration in developing future land use regulations. Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible. * * * The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts. TERRESTRIAL WILDLIFE MANAGEMENT POLICIES In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species. * * * 7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . . It shall be unlawful and an offense against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department . . . * * * (c) Review and approval of development site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit. * * * Section 18-19 Same-Application . . . Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees An overall site plan of the land for which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above . . . shall be included. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct. * * * Section 18-21. Same - Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . . Areas of concern Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/ At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides: No building or structure shall be erected on a parcel of land which does not abut a public or private road having a minimum width of fifteen (15) feet. The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.
The Issue The issue is whether Petitioner’s performance under its lawn care service contract with the Department of Management Services was deficient, and, if so, whether the amounts deducted by the Department from the monthly payments made to Petitioner under the contract were reasonable and appropriate.
Findings Of Fact Petitioner provides lawn care services to residential and commercial properties in the central Florida area. Andre Smith is Petitioner’s owner and president. In November 2004, the Department entered into a contract with Petitioner for lawn care services at nine Department buildings. The contract was awarded to Petitioner through a competitive procurement process in which Petitioner was the low bidder. The contract number was ITN No. 26-991- 490-Z. Petitioner was to be paid a total of $7,384.92 per month under the contract. Each of the nine buildings was apportioned a specific amount of the total price in the contract. The scope of work under the contract generally included lawn care services, open field mowing, and irrigation system maintenance. The lawn care services required under the contract included mowing, edging, weed control, fertilizing, watering, shrub and tree pruning, mulching, and clean-up. The contract specified the frequency that the services were to be performed. Mowing was to be done weekly between April and November, and every two weeks between December and March; hedges and shrubs were to be trimmed at least monthly unless more frequent trimming was required for aesthetic reasons; and mulching was to be done in March and September. The contract required Petitioner to take soil samples at the beginning of the contract and annually thereafter. The results of the soil samples were to be used to determine whether Petitioner needed to apply iron, lime, or other minerals to the lawns. The contract required Petitioner to inspect each building’s irrigation system at the beginning of the contract, and required Petitioner to provide a report to the building manager regarding any repair work needed on the system. Petitioner was also required to check the irrigation system on every visit to ensure that it was operating properly. The contract required Petitioner to apply pre-emergent weed control and fertilizer. The weed control was to be applied in the spring and the fall, and the fertilizer was to be applied three times during the year on an agreed upon schedule. The mulching required by the contract was to be done in March and September. The mulch was to be maintained at a depth of four inches throughout the year. The contract required Petitioner to use cypress mulch. The day-to-day operation of the buildings subject to the contract was the responsibility of on-site building managers, not the Department staff in Tallahassee. The building managers were responsible for the direct oversight of Petitioner’s work under the contract, and they were also responsible for reviewing and evaluating Petitioner’s performance. Petitioner began providing services under the contract in December 2004. Petitioner received full payment from the Department for the services that it provided from December 2004 through March 2005, even though several of the building managers were not satisfied with Petitioner’s performance under the contract during that period. Several of the building managers spoke with Mr. Smith regarding their concerns with Petitioner’s performance under the contract. They also documented Petitioner’s performance deficiencies on the monthly summary report forms that the contract required Petitioner to submit in order to obtain payment. Starting in April 2005, the building managers were required to fill out evaluation forms in addition to the monthly summary report forms. The impetus for the creation and use of the evaluation forms was Petitioner’s continuing unsatisfactory performance under the contract. The building managers used the evaluation forms to rate Petitioner’s performance as “good,” “fair,” or “poor” on the 20 categories of service that Petitioner was required to perform under the contract. Each service was assigned an equal weight -- e.g., one twentieth or five percent of the contract -- and if all 20 services were not applicable to a particular building, the weight assigned to each service was adjusted accordingly. The evaluation form was developed by Kris Parks, who was the contract administrator for Petitioner’s contract. Ms. Parks developed the form on her own. She did not get the input of the building managers in developing the form, and Mr. Smith was not consulted regarding the development of the form. The evaluation forms were used by Ms. Parks in conjunction with the monthly summary report forms in order to reduce the payments made to Petitioner under the contract. Each service for which Petitioner was given a “poor” rating by a building manager resulted in a five percent deduction in the amount paid to Petitioner. Typically, a “poor” rating reflected work that was not performed at all by Petitioner, rather than work that was performed unsatisfactorily. In some situations, a smaller deduction was made if the comments on the evaluation form or the monthly summary report form reflected partial performance despite the “poor” rating. For example, if Petitioner received a “poor” rating for mowing, but the comments reflected that Petitioner provided services twice during the month rather than the required four times, the deduction was 2.5 percent rather than five percent. The reduction of payments under the contract for unsatisfactory performance or unperformed work is specifically authorized by Section 3.13 of the contract. Section 3.13 of the contract states that the monthly summary report form “will be used by [the building managers] to track performance of services, in order to determine a proportional deduction in payment for services that are not performed as agreed” in the contract. It does not mention any other form. The contract does not define “proportional deduction” and it does not include the methodology to be used in calculating the deduction. The contract is silent on those issues. Petitioner’s contract with the Department was amended in May 2005 to reduce the number of buildings that Petitioner served from nine to three. The three remaining buildings were the ones closest to Petitioner’s business location in Lakeland, i.e., the Hargrett and Trammel Buildings in Tampa and the Peterson Building in Lakeland. The reduction in the scope of the contract was the result of Petitioner’s continuing unsatisfactory performance under the contract, and it reflected the Department’s well- founded view that Petitioner was not able to handle all nine buildings. The Department staff was trying to help Mr. Smith by allowing Petitioner to retain a portion of the contract rather than canceling the contract altogether based upon Petitioner’s poor performance. The invoices submitted by Petitioner for April 2005 through July 2005 were as follows: $7,384.92 (April); $7,384.92 (May); $1,938.64 (June); and $1,938.64 (July). The April and May invoices were based upon the nine buildings served by Petitioner in those months. The June and July invoices were based upon the three buildings served by Petitioner in those months. The Department did not pay the invoices for April 2005 through July 2005 in full. It paid Petitioner $2,451.782 for April (33.2 percent of the invoice), $835.82 for May (11.6 percent), $453.393 for June (23.4 percent), and $904.66 for July (46.7 percent). The amounts deducted -- $4,933.14 for April; $6,531.10 for May; $1,485.25 for June; and $1,033.98 for July -- were based upon the Department’s determination that Petitioner failed to perform certain work under the contract. The amounts deducted were calculated by Ms. Parks using the information provided to her by the building managers on the evaluation forms, as described above. The letters by which the Department informed Petitioner of the payment reductions advised Petitioner that it “may have the right to an administrative hearing regarding this matter, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.” The letters explained what Petitioner was required to do to request a hearing and advised Petitioner that the "[f]ailure to timely request a hearing will be deemed a waiver of [the] right to a hearing." Petitioner timely filed letters challenging the deductions for April, June, and July 2005. The total deductions for those months were $7,452.37. Petitioner did not file anything challenging the deduction for May 2005. Therefore, the $6,531.10 deduction for that month is not at issue in this proceeding. Petitioner is not entitled to the full amount billed to the Department for April, June, and July 2005 because all of the services required under the contract were not performed during those months. Mr. Smith conceded this point in his testimony at the final hearing.4 Mr. Smith contended at the hearing that the amounts deducted by the Department were not reasonable in light of the services that Petitioner did provide. However, Mr. Smith did not identify what he would consider to be a reasonable deduction for the work that Petitioner admittedly did not perform. Petitioner routinely failed to provide mowing services at each of the buildings at the intervals required under the contract. For example, Petitioner only mowed one time during the month of June 2005 at the Hargrett and Trammel Buildings, rather than the four times required under the contract. Petitioner did not put down mulch at any of the buildings in March 2005, as required by the contract. When the building managers asked Mr. Smith about the mulch, he told them that he would get to it. Mr. Smith testified that he was told by the Department staff in Tallahassee that the mulch could be put down in any month so long as it was done twice a year. That uncorroborated, self-serving testimony was not persuasive. Petitioner put down mulch at some, but not all of the buildings in April and May 2005. The mulch that Petitioner put down did not cover all of the areas requiring mulch and it was not put down at the required four-inch depth. At the Trammel Building, for example, the mulch put down by Petitioner was less than half of that required by the contract. No mulch was ever put down at the Hurston Building in Orlando or the Grizzle Building in Largo. Petitioner’s performance was often deficient in regards to trimming and clean-up of debris. For example, on one occasion at the Trammel Building, Petitioner left more than 60 bags of leaves in and around the building’s dumpster; at the Hargrett building, there were overhanging tree limbs that went untrimmed for an extended period; and Petitioner routinely failed to do trimming at the Grizzle Building, although he did a good job picking up debris at that building. The services provided by Petitioner at the Trammel Building got so bad that the building manager had to hire another company at a cost of approximately $1,800 to clean up the site so that it would be presentable for an event in the vicinity of the building that was attended by a U.S. Senator and other dignitaries. The building managers were never given the results of the soil samples that Petitioner was required to take at the beginning of the contract even though they repeatedly requested that information. When Mr. Smith was asked about the soil samples by the building managers, he told them that he would get them done. Mr. Smith claimed at the hearing that he sent the results of the soil samples to the Department staff in Tallahassee, although he could not recall whom specifically he sent the results to, and he offered no documentation to corroborate his testimony on this issue. Petitioner’s testimony regarding the soil samples was not persuasive. The Department’s witnesses credibly testified that they never received the results of the soil samples from Petitioner. Indeed, the evidence was not persuasive that Petitioner ever took the soil samples required by the contract. The print-outs presented at the final hearing, Exhibit DMS-11, do not have any identifying information that would corroborate Mr. Smith’s testimony that the samples described in the print- outs were from the buildings that were the subject of the contract.5 Moreover, the print-outs are dated March 8, 2005, which is more than four months after the samples were supposed to have been taken by Petitioner, and several of the soil samples had pH levels outside of the range set forth in the contract. Mr. Smith testified that Petitioner applied fertilizer and pre-emergent weed control at each of the buildings, as required by the contract. That uncorroborated, self-serving testimony was not persuasive. The more persuasive evidence establishes that Petitioner did not apply fertilizer or pre-emergent weed control. On this issue, the building managers credibly testified that they were never advised by Mr. Smith that the fertilizer or pre-emergent weed control was being applied, even though those services were to supposed be performed pursuant to a schedule agreed upon with the building managers; the building managers credibly testified that they did not observe any signs that fertilizer had been applied, such as the greening of the grass; and fertilizer could not have been applied at the Hurston Building without killing all of the grass because the fertilizer needs to be watered into the lawn, and the sprinkler system at the building was not working at the time. Petitioner failed to perform the required inspection of the irrigation system at several of the buildings, including the Hurston Building, at the beginning of the contract in order to determine whether any repairs needed to be done. The system at the Hurston Building did not work for an extended period of time, which caused large sections of grass around the building to die from a lack of water. The performance deficiencies described above were cited on the monthly summary report forms and the evaluation forms completed by the building managers, which in turn were used by Ms. Parks to calculate the amount deducted from the monthly payments made to Petitioner under the contract. Petitioner was responsible for the costs of the mulch, fertilizer, and pre-emergent weed control required under the contract. The money that Petitioner “saved” by not providing those services likely exceeds the amounts deducted by the Department pursuant to Section 3.13 of the contract. For example, the mulch purchased by Petitioner for the Trammell Building cost approximately $2,250, and that was only half of the mulch needed for that building alone. Petitioner is no longer providing lawn care services to the Department under the contract. The contract was revoked based upon Petitioner’s unsatisfactory performance. The revocation of the contract, which occurred at some point prior to August 2005, is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a final order rejecting Petitioner’s challenge to the payment reductions made by the Department for the months of April, June, and July 2005. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 3rd of November, 2006.
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The City of Cocoa Beach is proposing to maintenance dredge a channel which connects land areas of the City with the open waters of the Banana River in Brevard County, Florida. The channel runs approximately one and three-fourth miles from east to west. Nearest the shore the channel is approximately seven feet deep. As it extends out into the river, the channel has deteriorated to the point where at approximately halfway along its length it is only two feet deep. From that point until the end of the channel in the Banana River, it gets no deeper than three feet. Silt-like material has accumulated in the bottom of the channel. During low-water periods, many boats are completely unable to utilize the channel. Smaller boats which can use the channel are able to do so either because they plane above the channel bottom, or because they plow through the silty material. There are two other channels available for use which have not deteriorated to this extent, and even in low-water periods, boats unable to use the subject channel are not landlocked. The City proposes to remove approximately 9,761 cubic yards of material from the channel, and to deposit it adjacent to the channel in a partially submerged and partially dry area. Several small islands run parallel to the channel. These were created from spoil which resulted from the original construction of the channel. The City proposes to deposit material that it dredges from the channel onto three already existing islands, combining them into one island, which would be approximately 120 feet by 650 feet. The City proposes to contain turbidity which would result from the dredging and depositing operations by placing a turbidity screen around the filled area. The area where the proposed dredging and filling would take place is within an aquatic preserve as specified in the Aquatic Preserve Act, Chapter 258, Florida Statutes. The Banana River has been classified as Class III Waters. There is very little tide in the area of the proposed project, other than wind-driven tide. The islands which would be covered by fill from the channel if the permit is issued as proposed by the City are ringed with mangroves except in those places where erosion has taken place. The submerged areas which would be filled are dominated by aquatic grasses, primarily manatee grass and Cuban shoalweed. The mangroves and sea grasses form a productive area which serves as the base of the food chain in the river. The vegetation also serves to filter and uptake nutrients from the water. The area thus performs important environmental functions in serving as a part of the food chain for fish and other wildlife in the river, and in preserving the water quality of the river through the uptake of nutrients. The area that would be filled would amount to just over three acres. There are approximately 7,000 acres in the subject portion of the Banana River which are similarly dominated by aquatic grasses. While the area is small, it is significant both because it is especially productive, and because there has been considerable development along the shoreline of the Banana River, which puts stress on wildlife and water quality. Placing the fill on the area would obliterate the mangrove and sea grass communities, and would put an end to the significant environmental functions that the area now performs. The sediment that is in the channel and which would be placed on the mangrove and sea grass communities is a fine, silty material. It contains hydrogen sulfide, a toxicant to marine life. The material is presently largely contained within the channel. It is anaerobic, meaning that oxygen is not present in it, and it has an unpleasant smell. If the material is not contained, and it is allowed to spread across the flat sea grass areas, it will have an adverse effect upon the area. Biochemical oxygen demand would be dramatically increased in areas where the material spreads, and violations of the Department's standards for toxic substances would be likely. The City proposes to contain the material by placing a turbidity screen around the filled area. A plastic screen with a chain bottom would be installed around the filled area with stakes holding it in place. Such screens are very effective in containing turbidity under some circumstances. In connection with the instant proposed project, however, it is unlikely that the turbidity screens would be sufficiently effective. In the first place, the screen would be anchored by stakes. Turbidity screens are effective when they are anchored at both ends to upland areas. When they are not so anchored, their efficiency decreases. Furthermore, the material that would be contained in this instance is extremely fine. Turbidity screens are not as effective in containing fine, silty materials as they are with coarser materials. It is likely under the best circumstances that the silty fill would seep under the screen, and through any gaps that might occur. Since the screen would be contained by stakes in an area which is subject to wind-driven tides, it is likely that fissures would occasionally develop in the screen, and that the silty materials would escape from the confined areas. It is therefore likely that violations of the Department's standards for turbidity and for toxic substances would occur outside of the screened area. Since the silty material is a toxicant to marine plant and animal life, the effects of placing the fill in this area would be to measurably degrade water quality beyond the limits of the filled area. The problems inherent in placing the fill along the channel could be avoided by pumping the fill to an upland area. The City has considered this alternative; however, it has been advised that the cost of such pumping activities would increase the cost of the maintenance dredging from approximately $20,000 to in excess of $100,000. The City would not be able to afford the cost of the project under these circumstances. The City has not received any formal estimates for pumping the fill material to an upland area, but has received only an informal estimate that pumping beyond 2,000 feet would dramatically increase the cost. In order to get the material to an upland area, it would need to be pumped at least 8,000 feet.
