The Issue The issues are whether the Department of Environmental Protection (DEP) should: grant the application filed by IMC Phosphates Company (IMC) for modification of the approved Conceptual Reclamation Plan (CRP) for the Four Corners/Lonesome Mine, IMC-FCL-CPD; and issue a Consolidated Environmental Resource/Wetland Resource Permit No. 0155875-004 (Draft Permit) to mine phosphate and reclaim land on the Altman Tract in the northeastern corner of Manatee County.
Findings Of Fact The Parties Charlotte County is a political subdivision of the State of Florida pursuant to Article VIII, Section 1 of the Florida Constitution. Charlotte County's central dominating feature is the Charlotte Harbor Estuary. The Harbor is its major tourist attraction and is essential for its economy and quality of life. The Harbor has a recreational value of $1.8 billion and a total value of $6 billion to the local economy. The County has taken steps to protect Charlotte Harbor. Its comprehensive plan contains policies protecting the Harbor. It has spent $4 million to purchase lands along the Harbor for environmental preservation and passive recreation, and plans to spend another $79 million for the same purpose. The County has enacted septic tank regulations to protect the Harbor, which are stricter than state regulations, and is in the process of replacing septic tanks with a central sewer system. The County spent $100 million in the early 1990s to acquire a private water and sewer utility serving its citizens, and tens of millions of dollars expanding the sewer system, and has budgeted about $60 million to further expand its sewer system. The County has also taken legal action to protect the quantity and timing of flow and water quality in the Peace River and Charlotte Harbor, and was found to have standing and prevailed in those legal proceedings. The County owns and operates a water utility system and is a founding member of the Authority, a regional water provider. The County's water system supplies potable water to 109,000 persons, and is expected to supply 140,000 persons within the next 20 years. Now and for the foreseeable future, the County obtains all of its potable water from the Authority, and its sole source of water is the Peace River. DEP is an executive agency of the State of Florida under Article IV, Section 6, of the Florida Constitution. DEP administers the Environmental Resource Permit program pursuant to Chapter 373, Florida Statutes, for various activities, including phosphate mining. DEP also administers the Phosphate Land Reclamation Program pursuant to Chapter 378, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. IMC is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. Intervenors, George W. Mullins, Jr., Georgene Mullins Henderson, and Michael Graham Mullins, are the owners of a fractional mineral interest underlying portions of Sections 13, 14 and 24, Township 33 South, Range 22 East, Manatee County, Florida, that make up approximately the southern half the Altman Tract. Their mineral rights extend from the ground surface down, subject to IMC's right to mine phosphate and other sedimentary materials in the first 150 feet below the ground surface. This legal interest entitles the Mullins Family to access those lands at any time for purposes of mineral exploration and mining. The Mullins Family has not consented to IMC's proposed mining and reclamation. Required DEP Permits/Approvals, IMC Applications, Notices, and DEP Review Chapter 373, Florida Statutes, requires that persons seeking to carry out construction activities in or seeking to alter certain waters or wetlands must obtain an ERP. By law and interagency agreement, ERPs for proposed phosphate mining operations are issued by DEP and are processed and evaluated by that agency's Bureau of Mine Reclamation. Chapter 378, Florida Statutes, requires that persons mining phosphate rock reclaim the land pursuant to a CRP approved by DEP. Under Section 373.414(15), Florida Statutes, activities associated with phosphate mining operations included in a CRP application submitted prior to July 1, 1996, "shall continue to be reviewed under" the previous statutory scheme and rules governing wetland resource permits (WRPs), instead of current ERP statutes and rules. IMC filed an application for an ERP for the entire Altman Tract on October 5, 2000. (IMC Ex. 3). The application complied with the information requirements contained in Section 373.413(2), Florida Statutes, and Rule 40D-4.101(1). The portion of the Altman Tract lying in Section 1, Township 33 South, Range 22 East, was included in IMC's previous CRP for the Four Corners Mine (IMC-FCL-CPC), application for which was submitted prior to July 1, 1996. For that reason, it "shall continue to be reviewed under" the statutory scheme and rules governing WRPs. No separate WRP application form was submitted for the Section 1 area because the entire Tract was addressed in the ERP application filed by IMC; and no separate WRP application filing fee was demanded. IMC and DEP take the position that this procedure was authorized by Section 373.1131, Florida Statutes. There was no evidence that either IMC or DEP published notice that DEP had received the ERP application. DEP reviewed the ERP application and issued a series of requests for additional information to which IMC responded on October 19, 2000, December 29, 2000, February 11 and 15, 2001, and March 6, 2001. Thereafter, minor revisions to the application suggested by DEP were submitted by IMC. On April 9, 2002, IMC filed an application to modify the existing CRP for the Four Corners/Lonesome Mine to apply to the entire Altman Tract, not just Section 1. (IMC Ex. 14). Notice of DEP's receipt of this application was published in the Bradenton Herald, a newspaper of general circulation in Manatee County, on April 19, 2002. (IMC Ex. 15). On May 30, 2002, DEP filed its Notice of Intent to Issue a Consolidated ERP/WRP (the Draft Permit) and also gave notice of its intent to approve the application to modify the Four Corners CRP. On June 4, 2002, IMC published notice of both of these actions in the Bradenton Herald. (IMC Ex. 17). DEP's Notice of Intent ("NOI") was accompanied by the Draft Permit. (IMC Ex. 12). The Draft Permit would authorize IMC to mine or disturb 683.6 acres of wetlands and water bodies for phosphate mining and associated activities. Approximately 1,534.9 acres of uplands would also be mined or disturbed by phosphate mining activities. After reclamation, the Tract would contain approximately 788.4 acres of wetlands provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of wetlands would be reclaimed as required by the Corps of Engineers for additional mitigation. The Draft Permit also contains numerous specific conditions requiring special mitigation efforts, defining mitigation success criteria, and providing monitoring and reporting requirements. Overview of the Peace River Basin and Phosphate Mining The Peace River Basin is nearly 2,500 square miles in size, stretching from the high sandy ridges in central Florida to Charlotte Harbor. The basin is dominated by the Polk Upland to the north and the DeSoto Plain to the south. The Peace River flows from its source in Polk County south and southwesterly through Hardee, DeSoto, and Charlotte Counties to Charlotte Harbor. The Peace River is fed by six primary tributaries, one of which is Horse Creek. Phosphate rock has been mined in the Peace River Basin for decades. In west central Florida, phosphate is mined from a "matrix" consisting of one-third phosphate rock, one-third sand, and one-third clay. (The average thickness of the matrix on the Altman Tract is approximately 16 feet.) The matrix layer is buried under a layer of sandy soils referred to as the "overburden." (The overburden thickness on the Altman Tract is approximately twenty-seven feet.) Topsoil and vegetation cover the overburden. Mining the phosphate rock requires removal of the overlying vegetation, topsoil, and overburden. As a result, phosphate mining in this area is accomplished through utter destruction of the local natural environment from ground surface down to a depth of approximately 50 feet. Other mining activities include transportation of the matrix to a "beneficiation plant," where the phosphate rock, sand, and clay are physically separated. The phosphate rock is temporarily stored and then transported for additional processing at facilities required to convert it to fertilizer. Byproducts of the mining process included large quantities of sand and clay. Early mining practices, like most early industrial, commercial, residential and other development activities of man, were insensitive to environmental impacts. Water quality was adversely affected, water flow declined, and wildlife and fish and their habitat was lost. Other human activities in the Peace River over the years added to the harm caused to the environment by early phosphate mining. In the past 30 years, Florida has implemented various environmental regulations, and mining practices have changed. These changes have reduced, but have not eliminated, the impacts of phosphate mining on the environment. Modern mining still has a devastating impact on the local natural environment. Large electrically-powered draglines are used to remove the overburden, topsoil, and vegetation to expose the phosphate-bearing matrix. These same draglines then extract the matrix and place it in depressions created at the mine sites, which are called "wells" or "pits." The matrix is mixed with water in the depressions to form a slurry, which is conveyed, hydraulically to the beneficiation plant. But efforts have been made to reduce water quantity and water quality impacts downstream during mining, primarily through use of ditch and berm recharge systems. See Findings 65, 80-86, supra. Activities at the beneficiation plant also were regulated to reduce environmental impacts. In addition, since July 1, 1975, phosphate mining companies have been required to reclaim all lands mined. Mandatory reclamation attempted to further reduce the long-term impacts of modern phosphate mining on water quantity, water quality, and wildlife and fish and their habitat. As environmental regulations became stricter, it became increasingly difficult to mine for phosphate in Florida, even using modern mining techniques and mandatory reclamation, as it was being implemented. In 1986, the Florida Legislature enacted the "Phosphate Land Reclamation Act." In it, the Legislature found: Florida is endowed with varied natural resources that provide recreational, environmental, and economic benefit to the people of this state. The extraction of phosphate is important to the continued economic well-being of the state and to the needs of society. While it is not possible to extract minerals without disturbing the surface areas and producing waste materials, mining is a temporary land use. Therefore, it is the intent of the Legislature that mined lands be reclaimed to a beneficial use in a timely manner and in a manner which recognizes the diversity among mines, mining operations, and types of lands which are mined. Section 378.202(1), Florida Statutes. Based on this legislative finding and policy decision, phosphate mining was permitted, so long as it complied with applicable statutes and rules. DEP was directed to develop rules "to simplify and coordinate regulation" and to enter into memoranda of understanding "to eliminate duplication, to simplify the processing of reclamation applications, and to maximize the effectiveness of the regulatory process." Section 378.202(2), Florida Statutes. Among other things, reclamation rules were to "require the return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining." Section 378.207(1), Florida Statutes. Restoration was defined by statute to mean "the recontouring and revegetation of lands in a manner, consistent with the criteria and standards established under this part, which will maintain or improve the water quality and function of the biological systems present at the site prior to mining." Section 378.203(10), Florida Statutes. Since 1962 long-term average rainfall in the Peace River Basin has declined. Based on data recorded at stations in Bartow, Wauchula, and Arcadia, the annual average rainfall was 55.48 inches from 1933 to 1962. From 1963 to 2001, the annual average rainfall was 50.61 inches, or a 4.87-inch decline in annual average rainfall between the two periods. Lower rainfall, together with phosphate mining and other anthropogenic factors, has resulted in a decline in stream flow in the Peace River since 1962. From 1963 to 2001, stream flow at the Arcadia Gauging Station has declined by 458 cubic feet per second (cfs), or approximately 300 million gallons per day (mgd). This decline is approximately the amount of water consumed by 1.5 to 2 million people. There has been a decline in the number and distribution of fish species in the Peace River in the last 50 years or so. Dr. Fraser, Charlotte County's expert ichthyologist, noticed that the number and distribution of fish species in the modern Peace River is similar to the Alafia River and the Everglades. This was surprising to him. The Alafia River is a small watershed that would not be expected to have as many fish species as the much larger Peace River and the Everglades, which is a flat, low flowing system, and cannot be expected to have the abundance of fish habitat provided by the 105-mile long Peace River. Dr. Fraser would have expected the number and distribution of fish species in the Peace River to be more like the Kissimmee and Withlacoochee Rivers. This prompted him to research the number and distribution of fish species in the historical Peace River for comparison with the modern Peace River. He found that the historical Peace River had 45-48 fish species in the Upper Basin and 32-35 fish species in the Lower Basin (similar to the Kissimmee and Withlacoochee Rivers); in comparison, the modern Peace River has 23-27 fish species in the Upper Basin and 32-39 fish species in the Lower Basin. In other words, Dr. Fraser found that the modern Peace River lacks approximately 20 fish species that had once been abundant in the river system 50 or so years ago. In 1969, Ware and Fish produced a report documenting a 25-mile segment of the Upper Peace River as having riffles, and deep pools, relatively fast moving water and significant beds of submerged aquatic vegetation called tape grass. However, a 2002 report published by Southwest Florida Water Management District (SWFWMD) staff in connection with proposed minimum flows did not find any tape grass in the system and documented that flow in this portion of the river is sluggish, with parts drying out seasonally. Dr. Fraser believes that the decline in freshwater flow is the primary cause of the reduction in the number of fish species found in the Peace River. Charlotte Harbor is the estuary formed by the confluence of the Peace and Myakka Rivers. It provides critical habitat for a wide variety of wildlife, including endangered and threatened species and species of special concern. It has been designated an Outstanding Florida Water and an Aquatic Preserve by the State of Florida. See Florida Administrative Code Rules 18-20.004 and 62-302.700. In 1995, it became the sixth estuary to be selected an Estuary of National Significance by the U.S. Environmental Protection Agency ("EPA"). The major freshwater input to Charlotte Harbor is the Peace River. The salinity dynamics of the Lower Peace River and Charlotte Harbor are affected by flow in the Peace River. According to Dr. Ahsan, who was called by IMC and accepted as an expert in the fields of environmental hydrodynamics and estuarine physics, a reduction of 20 percent or more in the flow of the Peace River will cause a shift upstream of the salinity distribution in Charlotte Harbor. Since flow in the Peace River has declined by more than 20 percent since 1963, it would follow that salinity has shifted upstream since 1963. It is not clear exactly how much of the decline in stream flow in the Peace River is from anthropogenic factors, including phosphate mining. Anthropogenic factors probably do not account for as much as 75 percent of the decline, as suggested by Charlotte County's expert hydrologist, Mr. Phil Davis. Several studies would support the testimony of IMC's expert hydrologist, Dr. John Garlanger, who believes that more like 11-12 percent of the decline should be attributed to anthropogenic factors and that 10-20 percent of the decline from those factors can be attributed to phosphate mining. The County presented evidence that DEP thinks more study is needed to better quantify the impact of individual anthropogenic factors, including phosphate mining, on the decline in stream flow in the Peace River. But DEP called no witnesses to give opinion testimony during the hearing in this case on this or any other issue in the case. In comparison to the Peace River, Horse Creek is relatively unimpacted. It not only has good water quality, it also has fast-flowing water, and it provides a refuge for fish species that are no longer found in abundant numbers in the Peace River. It has an extensive drainage system that is almost 45 miles long. From the Altman Tract, Horse Creek flows south until it joins the Peace River approximately 41 miles downstream from the Altman Tract boundary. The Peace River then empties into Charlotte Harbor approximately 51 miles from the Tract. Historic and Current Conditions at Altman Tract Location The Altman Tract is in the northeastern corner of Manatee County. It encompasses a total of approximately 2,367 acres, all in Township 33 South, Range 22 East. The bulk of the Tract is in the shape of a triangle; a small "tab" is attached to the southeast corner of the "triangle" and extends south. The eastern boundary of the Tract is the Manatee-Hardee county line; the Fort Green Mine is adjacent to the eastern boundary. The property is bounded on the north and west by State Road (SR) 37. IMC's Four Corners Mine is across SR 37 from the Tract. All of the lands to the north, east, and west of the Tract have been mined and are being reclaimed. The southern boundary of the "tab" attached at the southeast corner of the "triangle" is SR 62. Otherwise, the land to the south of the Tract is owned by Manatee County. Manatee County acquired this land from IMC in a swap for some land the County owned on the Altman Tract so as to eliminate IMC ownership of land in the watershed of the Manatee River and to consolidate the County's land holdings in the area. The northern point of the Tract consists of the southeast half of Section 1. Directly to the south is Section 12, which is included in its entirety in the Tract. To the west of Section 12 is the southeast half of Section 11; to the south of it is Section 13, almost all of which is included in the Tract. To the west of Section 13, the Tract includes roughly the northeast half of Section 14. The "tab" attached at the southeast corner of Tract is part of Section 24. Horse Creek on the Tract The Altman Tract contains what is left of the headwaters of Horse Creek. Historically, the headwaters of Horse Creek consisted of a series of wetlands connected by natural swales and sloughs that extended north of the Altman Tract. When conditions were wet enough, water flowed through these headwater wetlands, sloughs, and swales and onto Section 1 of the Altman Tract from the north, then flowed southwest out of Section 1 and onto what is now the Four Corners Mine. It then flowed through another series of wetlands to the south before re-entering the Altman Tract at the location where box culverts now cross under SR 37 in Section 11. From there, water flowed south on the Altman Tract and meandered through an area of shallow sloughs to a large marsh, now known as the Central Marsh on the Altman Tract. Water flowed slowly through the Central Marsh towards the east and through a series of braided channels which continue east and form a deeper channel of the Horse Creek to the east of the Central Marsh. Near the eastern boundary of the Altman Tract, Horse Creek turns towards the south, where it exits the Tract near its southeast corner. Just before Horse Creek exited the Tract, another stream leading from wetlands to the south and west on the Tract joined the main Horse Creek stream. Man's activities have altered the historic Horse Creek headwaters. By 1940, a straight, shallow ditch was scraped between the box culverts and the Central Marsh, apparently to speed the drainage of water away from SR 37 and into the Central Marsh. This ditch coincided in some but not all places with the natural, meandering watercourse; as a result, water flows through both the ditch and the natural meandering watercourse. More recently, the natural headwaters to the north and west of the Altman Tract were eliminated as a result of phosphate mining on the Four Corners Mine, which significantly reduced the size of the watershed upgradient of the Altman Tract. However, water still flows onto the Altman Tract from the location of the box culverts under SR 37. To the east of the Altman Tract, the Fort Green Mine interrupted the flow from the wetlands on the Tract to the south and west of where Horse Creek now exits the Tract through seven culverts underneath an access road on the Fort Green Mine. IMC and DEP take the position that Horse Creek itself does not include the Central Marsh or anything upgradient of the Central Marsh. But the greater weight of the evidence is to the contrary. Notwithstanding the Four Corners Mine, water still flows into the Altman Tract from off-site through the box culverts under SR 37, continues to and through the Central Marsh, and exits at the southeast corner of the Altman Tract. Central Marsh The Central Marsh is a large, varied marsh system. The interior of the system is shrub marsh. Freshwater marshes surround the shrub marsh, and wet prairie surrounds the freshwater marshes. The Central Marsh overall is a very high- quality, diverse wetland system. The shrub marsh portion of the Central Marsh also is of high quality. IMC's botanist, Dr. Andre Clewell, testified that the Central Marsh was a large, mixed shrub marsh that was getting very woody and, citing the presence of red maple, was converting into a forested swamp. At one point, he went so far as to characterize it as an "impenetrable thicket" and a "vegetated desert" serving no wetland functions. This was a mischaracterization. Dr. Clewell's testimony was countered in this and several other respects by the testimony of the County's witness, Kevin Erwin. Retained in January 2003 after illness limited the effectiveness of the County's intended witness, Jeremy Craft, Mr. Erwin was able to inspect the Altman Tract for three days in February 2003 as part of discovery in this case. During that time, Mr. Erwin was able to gather information demonstrating that the Central Marsh is not one, large "vegetated desert." IMC's other expert wetlands biologist, Dr. Douglas Durbin, also declined to concur with Dr. Clewell's assessment, rating the Central Marsh as a medium-to high-quality wetland. Other Wetlands and Uplands: Zonation In addition to Horse Creek and the Central Marsh, the Altman Tract consists of a mosaic of other high-quality, interrelated wetlands and uplands, all with high-quality native vegetation and only minor man-made impacts. There are deep marshes with extended hydroperiods, shallow marshes with moderate hydroperiods, and wet prairies with very short hydroperiods. There are bay swamps and mixed forested wetlands. There are expansive areas of palmetto prairie. There are herbaceous and grassy uplands prairies. There are some scrub and live oak. There are very few nuisance, exotic, or problematic species on the Altman Tract. All the wetlands on the property exhibit "zonation," a concept introduced to the hearing through Mr. Erwin's testimony. "Zonation" describes essentially subtle changes that result as topography gradually and continuously changes, i.e., "changes in micro-topography." As a result of "zonation," many of the high- quality deep freshwater marshes on the Altman Tract give way to high-quality shallower marshes around the perimeter of the deep marshes, which in turn give way to high-quality wet prairie bordering the shallow marshes. Each of the different wetlands making up this mosaic has its own distinct hydroperiods. Adding to the diversity, adjacent uplands generally are diverse, high- quality native grasslands and other high-quality native upland habitats, including palmetto prairie. The result is a mosaic of a variety of slightly different, but interrelated high-quality native habitats on the Tract. Agricultural Ditches IMC emphasized the existence of agricultural ditches and the impacts of cattle grazing on the Altman Tract. In fact, while there are some agricultural ditches on the property, they are not extensive. In addition, the ditches on-site are mostly shallow, scraped ditches connecting existing wetlands. They are not designed to and do not lower the water table on-site. In addition, they do not appear to have been maintained, much less improved, in the 50 or more years of their existence. Cattle grazing has occurred on the Tract, but it has not been intensive. Included among the ditches on the Altman Tract are some 4.8 miles of first-order streams. A first-order stream is the channel that continues from the headwater to the first confluence. First-order streams are important because they produce the biological energy for the system. Additionally, they reduce downstream nutrient loading by sequestering and reducing the movement of nutrients. IMC's Use of FLUCFCS As part of its applications, IMC used the Florida Land Use Cover Forms Classification System (FLUCFCS) to characterize and map the Altman Tract. Mr. Erwin disagreed with IMC's mapping in many respects. It appears that many of Mr. Erwin's disagreements simply reflected a preference for more precision, both in terms of the level of classification used and in terms of the mapping detail. But some of IMC's mapping could lead to significant misunderstandings as to the nature of existing conditions on the Altman Tract. According to IMC's mapping, approximately 236 acres of shrub marsh are on the Tract. Mr. Erwin thought about half that amount of acreage actually was shrub marsh. Much of the difference was in the mapping of the Central Marsh--IMC's mapping made the shrub marsh seem much larger than it is by failing to distinguish the freshwater marsh surrounding it. According to IMC's mapping, approximately 85 acres of wetlands on the Altman Tract are "improved pasture." Actually, there is no improved pasture on the Altman Tract. What IMC mapped as "improved pasture" actually is mostly high-quality wet prairie. IMC also mapped 869 acres--about 30 percent of the site--as mixed rangeland. Actually, there is no mixed rangeland on the Altman site. Instead, there are separate and discrete areas of mostly high-quality native grasslands and palmetto prairies. IMC's WRAP Assessments of the Tract IMC evaluated the wetlands on the Altman Tract using a modification of the South Florida Water Management District (SFWMD) Wetland Rapid Assessment Procedure (WRAP) developed for use in SWFWMD. While the WRAP scores confirmed that the wetlands on the Altman Tract were not seriously degraded, they substantially and improperly understated the quality of the on- site wetlands. One of several factors in IMC's understatement of the Tract's WRAP scores was the inaccurate FLUCFCS mapping. In addition, it does not appear that enough credit was given for the high quality of adjacent uplands and other wetlands. There also were questions as to the level of training of those conducting the WRAP scoring for IMC, and whether they spent enough time on the Tract and viewed enough of the Tract to give proper and accurate scores. Water Quality Water quality on the Altman Tract appears to be very good. However, IMC has not sampled the water quality there. Instead, it provided DEP with water quality samples from a point in Horse Creek downstream from the property. Based on those samples, IMC represented to DEP that water quality on the Altman Tract was typical for a rural stream in this region of the State in a sub-basin impacted by agricultural use. Wildlife and Fish Habitat The Altman Tract provides good wildlife habitat. Various portions of the Tract are utilized by listed species, including: bald eagle (a nesting pair), Florida scrub jay (1-2 families); gopher tortoise, eastern indigo snake, Florida sandhill crane, Florida mouse, and Southeastern American kestrel. Other animals using the Tract include numerous wading birds; round-tail muskrats (one of few wetland-dependent small mammals); otters; and alligators (a species of special concern). There are red-cockaded woodpecker cavities on the Tract. IMC characterized the cavities as abandoned, but it is possible that they were inactive at the time. There also was other suitable red-cockaded woodpecker habitat on the Tract. During three days spent on the Altman Tract in February 2003, the County's consultants noted the presence of approximately 70 species of birds, 8-10 species of reptiles, and 5-6 species of amphibians. The County's consultants did not have the time to conduct an adequate, comprehensive wildlife survey. IMC instituted a wildlife survey of the Tract prior to initiating the formal permit application process. IMC's survey was more extensive than the County's, but the time spent on the Tract by IMC's consultants was inadequate for the survey to be considered truly comprehensive. It does not appear that any dawn-to-dusk surveying was conducted; and none of the surveying was done at night, when surveys for some species one might expect to be found on the Tract should be conducted (such as amphibians). More abundance and diversity of wildlife probably use the Tract than suggested by the surveys in evidence. Common species of generally small fish can currently occupy the wetlands, streams, and ditches on the Altman Tract that are sufficiently inundated and sufficiently connected to permanent waters to allow fish to exist. IMC reported to DEP that no listed or otherwise unusual or unique fish species exist in this region of Florida and that there were none on the Altman Tract. However, no fish sampling data was collected from the Altman Tract for submission to DEP. In the three-day period of time they had to inspect the Altman Tract, Charlotte County's witnesses observed 402 acres of fish habitat, including 27 acres exhibiting flow. Potentially, there may be another 281 acres of marsh and swamp that provide habitat for fish on the property. This additional acreage seemed like suitable fish habitat to Dr. Fraser, but he either did not see any fish or did not look there. It is possible for fish using habitat on the Altman Tract to swim down Horse Creek into the Peace River. Some fish species do not seem to be found in the Peace River any longer, but are or may still be found in the better fish habitat of the more swiftly-flowing Horse Creek. In addition, some fish species are predisposed to now rarer headwaters like those found on the Altman. IMC's Proposal to Mine and Reclaim the Altman Tract As previously found, the mining of the Altman Tract would be an extension of the IMC Four Corners Mine mining operation to the west of the Tract. Beneficiation, including clay settling ponds, and other processing activities will occur off-site at facilities already approved and operating or under construction. No approvals are needed or requested for those activities. IMC seeks to mine and otherwise disturb 683.6 acres of DEP jurisdictional wetlands and water bodies for phosphate mining and associated activities on the Altman Tract. Approximately 1,534.9 acres of uplands also would be mined and otherwise disturbed by phosphate mining activities. IMC is proposing to preserve 61.1 acres of flow-way area of Horse Creek to the east of the Central Marsh, together with two connected forested bay swamp wetlands in that area. IMC also will not carry out any mining-related activities within a 750-foot radius of an eagle nest on uplands on the western portion of the Tract near the Central Marsh. In addition, no mining-related activity will take place within 1,500 feet of the nest during the nesting season (approximately May 15 through October 1), in compliance with United States Fish and Wildlife Service (USFWS) regulations. Mining is planned to occur over a period of 12 years in accordance with a detailed annual mining and reclamation sequence set forth in the Draft Permit. Generally, mining will begin in the north and proceed to the south. After mining is concluded in a mining block, reclamation will begin in that block while active mining continues elsewhere on the site. At the outset, IMC proposes to construct a ditch and berm recharge system around the perimeter of the site and along the northern boundary of the areas to be preserved and the Central Marsh to protect these areas from the impacts of active mining occurring to the north during the early years of the mining sequence. Before mining begins in the southern half of the Tract later in mining and reclamation sequence, a ditch and berm recharge system will be constructed to the south of the preserved areas and along the southern boundary of the Tract. IMC also proposes to construct and operate an alternate flow-way ("AFW") at the Altman Tract. The AFW will be constructed at the outset and will divert water from where it enters the Tract through the box culverts under SR 37 and convey it along the western edge of the property boundary back to the existing Central Marsh. After the AFW is in operation, IMC plans to mine the area containing the existing watercourse conveying water between SR 37 in Years 3 and 4, while maintaining off-site flow to the existing Central Marsh and the preserved area down-gradient. The AFW will continue to provide off-site flow to those areas during Years 4-6, while IMC reclaims a Replacement Central Marsh (also known as Mitigation Marsh 561) to the north of the existing Central Marsh. The Replacement Central Marsh is to be connected to the preserved area during Year 7. During Years 6-8, the AFW will be providing off-site flow to both the existing Central Marsh and the Replacement Central Marsh to the north. In Year 9 of the sequence, off-site flow to the existing Central Marsh is to be discontinued, and mining would begin in that area. However, under Specific Condition 10 of the Draft Permit, this will only occur if "all of the success criteria for the West Fork of Horse Creek headwater marsh, identified in Permit No. 0142476-003 (Manson Jenkins) have been met within nine years, with a minimum of two years without intervention, from issuance of this permit unless another date has been approved in writing by the Bureau. In addition, the up-front mitigation of Mitigation Marsh 561 shall be completed according to Specific Condition 11 before the severance and mining of the existing marsh." If the date is extended, mining in the existing Central Marsh will not be allowed to proceed, and the AFW would have to continue to have to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. When the existing Central Marsh is mined, the AFW will not be needed any longer, and its location will be mined and then reclaimed. At that time, water from off-site will enter the Tract through the same box culvert and be routed directly into and through the Replacement Central Marsh. Other areas of the Tract will be mined and reclaimed in accordance with the detailed annual mining and reclamation sequence. Mining is planned to occur over a period of 12 years, and reclamation is projected to be fully completed within the projected overall 17-year life of the project. Proposed reclamation will be accomplished using two techniques--one for areas to be reclaimed as uplands and one for areas to be reclaimed as wetlands. In both cases, the voids created by the mining operations will be filled with sand generated in the beneficiation process. For uplands reclamation, the sands will be covered with the overburden that has been cast aside during the mining operation, which will then be carefully contoured to achieve the desired upland topography. Revegetation will follow using three techniques: direct seeding (using native seed sources as well as commercial seeds); placement of salvaged topsoil; and planting with available nursery stock. IMC witnesses testified to IMC's intent to promote successful revegetation of the upland areas by engaging in an aggressive effort to control potential invasions by nuisance or exotic species. IMC witnesses also testified to IMC's agreement to an aggressive uplands nuisance species control program and to special techniques for upland revegetation to improve long-term function. However, the Draft Permit does not appear to include such an agreement as a permit condition. IMC characterized control of nuisance and exotic species in the uplands as being not required by rule. But the weight of the evidence was that nuisance and exotic species will not only invade the uplands but from there will also invade wetlands during dry conditions. For that reason, wetland reclamation will not succeed if nuisance and exotic species are not controlled in the uplands. With regard to wetlands reclamation, following sand placement, IMC will establish precise contours and elevations to assure that wetland contours are built as designed. The land surface will then be prepared for planting by "muck inoculation" in which surface soils taken from a natural wetland system are imported to provide a fertile layer for vegetative growth and to "jump start" the plant community with the seed sources and different types of root stock that are contained in the muck. (For this to be effective, the muck should not contain seed and root stock of nuisance and exotic species, which are limited to 10 percent of wetland coverage under the monitoring and maintenance program required by Special Condition 13 of the Draft Permit.) Post-reclamation, the Tract would contain approximately 788.4 acres of wetlands (749 acres of herbaceous and 39.5 acres of forested) provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of herbaceous wetlands would be reclaimed to meet requirements of the Corps of Engineers for additional mitigation for loss of isolated wetlands. Of the total wetland acreage post-reclamation, 721 acres will be freshwater marsh (code 641), of which 658 will be DEP jurisdictional. These will be relatively deep marshes with long hydroperiods. Only 52 acres will be shrub marsh (code 646) post-reclamation, of which only 11 will be DEP jurisdictional. According to IMC's FLUCFCS mapping, only 360 acres of freshwater marsh currently exist on the Altman Tract (of which 328 acres is DEP jurisdictional); Mr. Erwin generally concurred with this acreage total (while noting that more surrounds the Central Marsh than IMC mapped there). According to IMC's FLUCFCS mapping, 278 acres of shrub marsh currently exist on the Altman Tract (of which 236 is DEP jurisdictional); Mr. Erwin believes there actually is approximately half that amount currently on the Tract, but still much more than IMC intends post- reclamation. According to IMC's FLUCFCS mapping, 58 acres of wet prairie (code 643) are on the Tract (almost all of which is DEP jurisdictional). Mr. Erwin thinks there actually are fewer acres of wet prairie on the Tract. Post-reclamation, IMC plans for there to be 92 acres of wet prairie (of which 80 will be DEP jurisdictional). As previously found, IMC mapped existing herbaceous, palmetto prairie (code 329), and other shrubs and brush (code 321) as mixed rangeland (code 330). Post-reclamation, IMC proposes to increase the mixed rangeland from 852 to 1,147 acres, while also eliminating 136 acres of herbaceous, almost all 98 acres of palmetto prairie, and almost 276 acres of other shrubs and brush mapped on the Tract. IMC does not propose any improved pasture (code 210) post-reclamation, and claims credit for eliminating 85 acres of improved pasture presently on the Tract. But actually there is no improved pasture on the Tract. Most of what IMC mapped as improved pasture actually is native palmetto prairie, herbaceous, and wet prairie cover. The 4.3 acres of streams and waterways on the Altman Tract have a Level II FLUCFCS code of 510. IMC's reclamation will not restore any streams or waterways during the reclamation process. IMC and DEP take the position that the streams actually are agricultural ditches of lower ecological value than the marshes IMC plans to recreate. However, many of the so- called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. IMC has offered to provide a conservation easement in favor of the State of Florida consisting of not less than 230.8 acres. The conservation easement will consist of 169.7 acres of reclaimed Mitigation Marsh 561 ("Reclaimed Central Marsh") and the 61.1-acre preserved flow way area of Horse Creek. The Mullins Family's mineral interests underlie a portion of the preserved flow-way. Impacts During Mining/Reclamation As previously indicated, mining obviously will have a devastating impact on the natural environment of the Altman Tract. IMC proposes measures to attempt to minimize or reduce those impacts, both on the Tract and on adjacent lands. Ditch and Berm Recharge System IMC proposes to construct a perimeter ditch and berm system to preclude a direct release of potentially muddy water from mining areas to adjacent land, wetlands, or waters. This is recognized as a "best management practice" (BMP) by DEP and the United States Environmental Protection Agency. Water retained within the boundaries of the ditch and berm system is recycled and reused in the mining operation. IMC reuses approximately 95 percent of its water. The water in the ditch element of the ditch and berm system serves to maintain the ground water level on adjacent property owned by others and in waters and wetlands that are to be preserved from mining. Otherwise, groundwater will flow into dewatered mine cuts from adjacent lands, lowering the water table significantly in areas outside the mine cut. IMC proposes to construct two recharge ditch systems on the Altman Tract to protect the Central Marsh and the preserved area. Both ditch systems will originate in the vicinity of SR 37 and continue across the property to the eastern boundary. The northernmost ditch system will run north of the Central Marsh and the preserved area; another section of this ditch system will be constructed to the south and west of the preserved area. The southernmost ditch will run along the southern property boundary. Certain geological conditions at the Tract could inhibit the effectiveness of the ditch and berm system to maintain adjacent groundwater levels. But if such circumstances are encountered, an alternative recharge well system could be installed in those locations. The recharge system would be charged with clean water in order to be effective. Under a worst-case scenario, approximately two million gallons a day of water could be "lost" from the recharge ditches through seepage. But if seepage occurs, most of the water would reenter the mine recirculation system where it would be available for reuse and recycle. Generally, reasonable assurances were given that the ditch and berm systems can and will be constructed, maintained, and operated so as to be effective in protecting adjacent lands and the proposed preserved areas. However, it is questionable whether the ditch and berm system will be effective in the vicinity of the preserved forested bay swamp wetlands. In order to maximize mining in the area, IMC intends for the northernmost recharge ditch system to track closely the northern edge of those two mushroom-shaped features as they jut out north from the portion of the Horse Creek flow-way to be preserved. As a result, while the direct linear distance from the eastern boundary of the Tract to the western end of the westernmost of the two forested bay swamp wetlands proposed for preservation is approximately 2,600 to 3,000 feet, approximately 8,000 feet of recharge ditch must be constructed in that section of the recharge ditch. Mining the area between the two bay swamp wetlands will be like digging a big, deep trench with smaller, shallower recharge ditches on either side, making it harder to keep the recharge ditches filled with sufficient water to protect the bay swamp wetlands. In addition, while the bay swamp wetlands will be connected to the existing Central Marsh and receive some water from the AFW through the Central Marsh to the south, they will receive absolutely no runoff from the north. For these reasons, IMC did not give reasonable assurances that the two forested bay swamp wetlands will be preserved, as planned, during mining. They may be seriously adversely affected. If this happens, they will not be as useful as IMC plans as a refuge for mobile wildlife on the Tract during mining. In addition, as Dr. Clewell testified in IMC's case-in- chief, bay swamps are difficult and take a long time to restore. Mining and Reclamation Sequence IMC proposes a mining and reclamation sequence in part to minimize the duration of impacts of active mining. However, the benefits of this proposal are less than might be supposed at first blush because no additional recharge ditches are planned between mining blocks within the mine. Except where mining blocks are bordered by a perimeter or preserved area recharge ditch, groundwater will flow into dewatered mine cuts from adjacent mining blocks, lowering the water table significantly in areas outside the mine cut and up to a distance of approximately several hundred to a thousand feet. This will adversely impact the hydrology of wetlands within those adjoining areas--both wetlands not yet mined and wetlands that are supposed to be in the process of being revegetated as part of the reclamation sequence. Some existing wetlands will be impacted in this way one to two years before they are mined; some areas being revegetated during the reclamation sequence will be impacted in this way for three to four years. The requirement of "up-front mitigation" through the Replacement Central Marsh also would help reduce impacts during mining. However, as indicated, it is possible that this could extend the time during which the AFW would be required to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. Central Marsh Hydroperiods During Mining Reasonable assurances were not given that flows through the AFW from off-site will be sufficient to sustain required hydroperiods of both marshes for the length of time this is planned to be required, much less for a longer period of time. This issue was not addressed in IMC's case-in-chief. After the County's expert hydrologist, Mr. Davis, in the County's case-in-chief, Dr. Garlanger addressed it in rebuttal testimony by stating: "Based on my analysis, there is sufficient water -- with proper operation and maintenance of the recharge system, there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only evidence of any analysis of wetland hydroperiods on the Altman Tract performed by Dr. Garlanger was designed to compare pre-mining and post-reclamation wetland hydroperiods. It did not address wetland hydroperiods during mining. In addition, this analysis was based on his suspect modification of the HELP model. See Findings 157-163, infra. For these reasons, Dr. Garlanger's "analysis" did not provide reasonable assurances that "there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only other evidence of wetland hydroperiods on the Tract was an analysis submitted by Florida Engineering and Environmental Services (FEES). This analysis only modeled post- reclamation wetland hydroperiods. It also had several other deficiencies. It used a model with a groundwater component (Mine Hydrology Program) designed to simulate flow of groundwater into a mine cut, not into a wetlands. FEES also did not account for the effect of changed soil conditions on groundwater flow post-reclamation, and added an inappropriate "safety factor" by cutting the results in half. Errors with the surface water model component included the inappropriate use of a single event-based model for a multi-year simulation, the failure to account for changes in soil conditions, the use of the same curve number throughout the entire simulation, and numerous mathematical errors in the set-up and conceptualization of the surface water model. Errors in the spreadsheet combining the two components included the incorrect calculation of the stage-storage-discharge relationship, use of an ET value that is unrepresentative of actual conditions, and a major error in the calculation of wetland water levels. IMC did not rely on the FEES model in its case-in- chief. In fact, IMC's main hydrologic witness, Dr. Garlanger criticized the modeling performed by FEES. He testified that he would not have done the analysis in the same way, disagreed with some of FEES' assumptions, and would not have used the same model. Dr. Garlanger added to his rebuttal that "IMC has committed to augment or supplement the replacement marsh with water from the recirculation system or from surficial aquifer dewatering wells" or even "irrigate it, if they have to." Even if those extraordinary measures are taken by IMC with respect to the Replacement Central Marsh, they would not address the needs of the existing Central Marsh. Fish and Wildlife Mining clearly will have adverse impacts on all fish and wildlife on the Altman Tract except the bald eagle. Measures to protect the bald eagle nest site on the Tract should be adequate to avoid adverse impacts on that species. The proposed mining sequence and preserved area will be of some benefit to some mobile wildlife species, but it will not be enough to avoid adverse impacts. All fish on-site will be destroyed, less mobile species will not survive; some more mobile species probably will not survive. Loss of habitat on the Tract will adversely affect all of these species (again, except the bald eagle pair). The limited amount of preserved area will not be enough to avoid adverse impacts (even if the ditch and berm recharge system is effective in preserving the forested wetland bay swamps). The existing scrub jay habitat on the Altman Tract is not good quality. There are 30-40 acres of Type I (optimal) scrub jay habitat on the Tract, but the oaks are too high (more than three meters high. There are over 100 acres of Type II jay habitat on the Tract. The jay habitat on the Tract could be improved through active management. In 1998, there were two scrub jay family groups on the Tract. By 2002, only one family group remained, which was predictable due to habitat quality. Without active management, the scrub jay habitat at the Tract is not conducive to long-term survival and propagation. As part of a mine-wide Scrub-Jay Habitat Management Plan, IMC assessed several options for the scrub jay pair residing on the Altman Tract (including on-site habitat preservation) using sound scientific methodology, including population viability analysis models. It was decided that relocation to suitable habitat closer to other scrub jay families in accordance with the approved Scrub-Jay Habitat Management Plan has the highest probability of maintaining and recovering the scrub jay population in this area. As a result, IMC plans to capture and relocate the remaining scrub jay pair before mining on the Altman Tract. IMC will implement eastern indigo snake protection measures approved by the USFWS and FFWCC and incorporated into the Biological Opinion that applies to the Tract. These measures essentially consist of training land clearing crews in identification and appropriate response. If encountered during land clearing, work will cease and a trained biologist will be notified. The biologist will assess the work area and determine whether the snake should be captured and removed to a safe area. IMC regularly relocates gopher tortoises in advance of mining operations. According to IMC's ERP, surveys will be conducted prior to land clearing, and any gopher tortoises and their commensals (including the eastern indigo snake, the gopher frog, and the Florida mouse) will be relocated using appropriate permits and in coordination with the Florida Wildlife Conservation Commission (FWCC). According to IMC's ERP application, if active sandhill crane nests are found during mining, all land clearing in the vicinity of the nest and all mining in the vicinity of the nest will stop until the nesting cycle is complete. A 225-meter protection zone will be established per state guidelines around all active sandhill crane nests found during pre-clearing surveys. The FFWCC deems protection zones of this size to be a best management practice. Benefits of Reclamation As found, the wetlands and uplands on the Altman Tract are of very high quality--higher than claimed by IMC. IMC did not give reasonable assurances that the wetlands and uplands it would reclaim would maintain or improve the functions provided by the existing conditions. IMC's plan is to recreate a "natural landscape" on the Altman Tract. By this, IMC means a combination or mixture of natural wetland and upland habitat. Previous reclamation projects have not attempted to do this. The 1,410 acres of uplands IMC proposes to recreate will be dominated by 1,147 acres of "mixed rangeland" (FLUCFCS code 330). The 788 acres of wetlands IMC proposes to recreate will be dominated by 658 acres of freshwater marsh. Essentially, IMC plans to recreate a wetland system dominated by a large, relatively deep freshwater marsh. Freshwater marsh acreage will be more than double present conditions. There will be fewer shallow freshwater marshes. IMC plans to increase the amount of wet prairie, but there will be hardly any shrub marsh post-reclamation. Generally, there will be less "zonation" and less diversity. To increase on-site wetlands, uplands will be made correspondingly smaller. In addition, the quality of the uplands will decrease, as will the manner in which they interact with nearby wetlands. The diverse range of herbaceous, palmetto prairie, and other shrub and brush upland cover types presently found on the Tract will be largely replaced by 1,147 acres of mixed rangeland and 99 acres of unimproved pasture, out of a total of 1,410 acres of upland, post-reclamation. Eight acres of live oak and 33 acres of mixed hardwood-conifer will be gone. Pine flatwoods will more than double. As a result, the diversity and variety presently on the Tract will be missing under IMC's plan. The interactions among the diverse kinds of high- quality wetlands and uplands give the Altman Tract its valuable fish and wildlife functions. The evidence did not demonstrate that these functions will be restored through reclamation except perhaps the functions served by deep marshes. Wading bird populations nest in areas that provide a safe environment to raise their young. The existing Central Marsh does not provide optimal habitat for wading birds because the shrubby vegetation harbors predators. The proposed Replacement Central Marsh probably would provide better nesting and roosting habitat for wading birds such as egrets, herons, ibises, sand hill cranes, and wood storks than the existing Central Marsh. However, reasonable assurances were not given that the reclaimed Tract as a whole would provide wading bird habitat that is as good or better than the diverse mosaic of habitat types currently existing on the Tract. IMC justifies its plan to "simplify" the Altman Tract through reclamation by stating it will restore 1940 conditions that are better than those existing on the Tract. But the more persuasive evidence was that, with relatively minor differences, conditions today probably are quite similar to conditions in 1940. It was not proven that IMC's proposed reclamation project would return the Tract to conditions in 1940. One difference between current conditions and 1940 is the agricultural ditches. But as indicated, these ditches have not had serious adverse impacts on the Altman Tract. In addition, they have provided a kind of fish habitat on the site that would not be replaced by the Replacement Central Marsh. Any improvements from their elimination would have to be weighed against this habitat loss. Another difference is some transitioning to shrubbier conditions in parts of the Central Marsh. IMC attributes this change to fire suppression. It may also result at least in part from reduction of the up-gradient watershed as a result of mining on the Four Corners Mine. To the extent that there have been some changes due to fire suppression, the Draft Permit does not mandate fire management. Without fire management, it would be hard to sustain and maintain conditions that require periodic cool, surface fires, even if IMC were to recreate them. To the extent that there have been some changes due to drier conditions, IMC's strategy seems to be to essentially eliminate shrub marshes from the Tract and recreate more and deeper freshwater marshes. As indicated, assuming enough off- site flow for the strategy to succeed, this would alter the Tract and reduce the benefits of diversity and zonation. Evidence presented by IMC demonstrates a certain ability to reclaim the basic cover types proposed for the Altman Tract. IMC relied on 15 restoration sites as examples of successful restorations of the kinds proposed in IMC's reclamation plan. Mr. Erwin had the opportunity to spend five to six days inspecting this sites to test IMC's assertions. Based on his limited review, he was able to demonstrate that none of the restoration sites were of higher quality than comparable cover types on the Altman Tract, that most were lower quality, and that many had problems with nuisance and exotic species. Nine of IMC's examples were to demonstrate successfully recreated freshwater marshes and wet prairie. But Mr. Erwin pointed out that they primarily demonstrated an ability to recreate quality deep marshes. There were few shallow marshes. There were no wet prairies with native grasses in evidence; and there was no demonstrated ability to recreate them. Instead, the demonstration sites showed examples of wet pasture. The wet pasture usually was vegetated with some form of pasture grass, such as Bermuda and bahia grass, not with native grasses. In addition, an especially troublesome exotic and nuisance species called cogon grass dominated in many of the wet pastures and was invading some shallow marshes. There was no demonstrated ability to consistently control cogon grass for long in the shallow marshes and wet pasture areas. Three of the sites were supposed to demonstrate successfully recreated shrub marshes. While some were fairly successful, others were dominated by exotic and nuisance species, such as primrose willow. In some of the shallower shrub marshes, cogon grass also was invading from the upland transition area. It appeared that, at least without active management, these exotics and nuisance species tended to invade the recreated shrub marshes (especially the shallower ones) from the transition areas. There was no demonstrated ability to consistently control these species for long in the shallower recreated shrub marshes. Three of the sites were supposed to demonstrate successful recreated mixed wetland forest. One, called Morrow Swamp, was an early, experimental attempt by Mr. Erwin. It was released in 1983, and Mr. Erwin had not seen it since the early 1990's. On inspection in February 2003, he found that the hardwoods planted there no longer exist. All that remains essentially are large cypress trees in deep water. A second site, called "8.4 Acre," was becoming mixed forest in part, but much of the site was shrub marsh dominated by Carolina willow (a native plant, but one that does not fit the mixed forested wetland target), pasture (Bahia) grass, and cogon grass. Lack of continued management of this site probably has contributed to its failure to develop better. It was designed to have water levels and fluctuations controlled, but the designed flow way system is not being maintained. The third site, called "84(5)," also has some mixed forested wetland, but there also are large areas of shrub marsh and cogon grass. It is possible the site has not been more successful because an outfall has not been maintained, leading to higher water levels than planned, which can lead to invasion of undesired exotic species and perhaps retard natural re-seeding. Two sites were supposed to demonstrate successfully recreated mixed wetland hardwoods (similar to mixed forested but with fewer pine trees and more cypress). The first was "Dogleg Branch," which IMC did at its Lonesome Mine. Part of this site was a good example of successfully recreated mixed hardwoods wetland, which Dr. Clewell emphasized in his testimony. However, Mr. Erwin pointed out several other pertinent factors. First, "Dogleg Branch" has been in existence for 25 years. Second, the recreated stream where the most successful mixed hardwood wetland was located was noticeably more steeply banked than the preserved area downstream from the mine. Third, adjacent uplands (mostly planted pines) suffered from significant invasions of cogon grass. The second site was another part of "8.4 Acre," but the evidence was not persuasive that it contains a good example of wetland hardwoods mixed. As previously indicated, IMC developed WRAP scores for existing wetlands on the Altman Tract that substantially and improperly understated their quality. IMC also developed WRAP scores for 80 reclaimed wetlands. Generally, those scores were as high or higher than the scores IMC gave to the wetlands on the Altman Tract. Mr. Erwin was only able to inspect 15 of the 80 recreated wetlands for which IMC had WRAP scores--namely, those used by IMC as examples of the kinds of wetlands IMC would reclaim on the Altman Tract under the CRP. Mr. Erwin did not have time to develop his own WRAP scores for all of those recreated sites. But he saw enough to be convinced that the wetlands on the Altman Tract, overall, were higher quality than the 15 recreated wetlands. Mr. Erwin's testimony was persuasive in this regard, and there is no reason to believe that the other 65 recreated wetlands are as good or better than the Altman Tract wetlands. As indicated, the Altman Tract also is characterized by high-quality native uplands adjacent to its wetlands. The evidence was that, once the uplands are disturbed for mining, they will be susceptible to invasion by exotic and nuisance species, which would then be poised to invade wetlands during dry spells. As a result, control of exotic and nuisance species on the uplands is necessary for the long-term success of recreated wetlands; and IMC's "offer" to use native species for uplands recreation and to control nuisance and exotic species on uplands proactively through herbicides, removal, and fire and to limit them to ten percent of the upland cover is not superfluous. Rather, control of nuisance and exotic species on uplands is necessary for any hope of long-term success of recreated wetlands on the site. It is not clear from the evidence whether the "offer" to limit them to 10 percent will be enough; it also is not clear whether the 10 percent limit can be met. In rebuttal, IMC recalled Dr. Durbin to counter evidence in Charlotte County's case that the type and nature of the Altman Tract would not be restored through the proposed reclaimed wetlands. Dr. Durbin noted that, according to their field notes, Charlotte County consultants who evaluated the prevalence of plants and wildlife on IMC reclamation areas during discovery found that a very high number of plants species are also found in healthy natural systems. Similarly, wildlife species observed on the reclaimed areas matched well with those on undisturbed areas. But this evidence did not address Mr. Erwin's position that presence of plant and wildlife species does not necessarily indicate their prevalence and distribution. In addition, as to his comparison of wildlife species on reclaimed wetlands versus existing wetlands on the Altman Tract, Dr. Durbin did not correlate the size and type of wetlands he was comparing. IMC's reclamation plans are complicated by the mineral interests of the Mullins Family. Reclamation necessitates control over the site, as reflected in Draft Permit provisions to limit activity on the site during the reclamation process. IMC must restrict access to its property and manage it to ensure that there is no incidental encroachment or secondary activities that might compromise mitigation success. Reclaimed wetlands must be protected from mowing and grazing activities during the establishment phase of the reclamation for five years. But IMC cannot prevent the Mullins Family from accessing its portion of the Tract to explore and mine for minerals. Depending on how the Mullins Family might choose to exercise those rights, it could interfere with IMC's plans for reclamation on the southern part of the Tract. For that reason alone, reasonable assurances have not been given that reclamation will be successful. (The rights of the Mullins Family also reduce the value of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation.) In summary, even assuming that the Mullins Family does not interfere with reclamation plans, IMC only has demonstrated the consistent ability to recreate deep marshes and some ability to recreate shrub marshes. There was no demonstration of IMC's ability to recreate shallower marshes or wet prairie. There also was no demonstration of an ability to recreate the kind of diversity through "zonation" and adjacent high-quality uplands found on the Altman Tract. Recreated wetlands can serve some of the wetland functions and values present on the Altman Tract today, but reasonable assurances were not given that they can serve all of those functions and values. As Mr. Erwin put it, given the hydroperiods planned for the reclamation wetlands, reclamation will not come close to replacing the type, nature, and functions presently on the Tract. To the extent that they can, the evidence was that long- term management would be required to maintain them and prevent them from becoming invaded and in time dominated by exotic and nuisance species. Other Mitigation IMC proposes certain measures for the protection of certain listed species. These include mine-wide Scrub-Jay Habitat Management Plan to improve and protect habitat for scrub jays in the vicinity of the Altman Tract and record a conservation easement on property designated by the USFWS. This plan was included in the modified CRP covering the Altman Tract. There was no evidence of any other habitat management plans for any other fish or wildlife species, listed or unlisted, wetland- dependent or not. IMC's ERP application includes reference to plans for protection of certain listed species by relocation to safe sites, but did not include any habitat management plans other than the those for the bald eagle pair on the Tract and for scrub jays. IMC is in the process of developing a habitat management plan for the gopher tortoises and their burrow commensals (such as the eastern indigo snake, the gopher frog, and the Florida mouse) for all property owned by IMC in Hillsborough, Manatee, Polk, and Hardee Counties. A draft of the plan has been submitted to the FWCC for review. The draft plan proposes to use a model to estimate how many gopher tortoise will have to be relocated due to mining activities and determine suitable habitat on land owned by IMC for relocating them. Monitoring The Draft Permit contains extensive monitoring requirements. Through the evidence it presented, primarily through the testimony of Dr. Anthony Janicki, Charlotte County criticized several aspects of the monitoring scheme in the Draft Permit. Dr. Janicki proposed what he viewed to be an ideal monitoring system. To some extent, Dr. Janicki's views reflect more of an academic than a permitting perspective, i.e., that more data is always better. In addition, since Dr. Janicki's monitoring goals are different from DEP's in the context of permitting, the standards, extent of monitoring, and indicators of environmental health he suggests are different from those identified in the Draft Permit. But these differences generally do not invalidate the monitoring system in the Draft Permit. One basic criticism made by Dr. Janicki is that the Draft Permit does not require a baseline water quality study defined both spatially and temporally. However, such a study would require at least a year of study and possibly three years or more, depending on rainfall, to obtain enough data under different flow conditions to have confidence in the baseline. While this might be necessary to determine whether an activity will degrade water quality, e.g., in an Outstanding Florida Water, it is not necessary to determine whether Class III water quality standards are being met. Another reason given by the County for requiring such a study was to monitor nutrient loading in anticipation of Horse Creek being named an "impaired water" with specific total maximum daily loads (TMDLs). But those requirements need not be anticipated in this proceeding. If TMDLs are imposed in the future, the necessary monitoring can be imposed at that time. One of Dr. Janicki's criticisms is valid. Specific Condition 15 states that mitigation wetlands can only be released when Specific Conditions 11 and 14 are met (T. 3133- 3134). However, Specific Condition 15.d. states that DEP "may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 11 have not been met." Since Specific Condition 11 incorporates Specific Condition 14, this provision may also allow mitigation wetlands to be released based on a visual evaluation, even if criteria in Specific Condition 14 are not met. Release by visual evaluation would not allow a reasonable person to determine whether the recreated wetlands have met all the success criteria. The more objective standards contained in Specific Conditions 11 and 14 should not be discarded in favor of subjective visual evaluations. ERP Conditions of Approval1 ERP conditions of approval are set forth in Chapter 373, Florida Statutes, and in Rule 62-330, which incorporates certain SWFWMD Rules in effect in 1995, including Rules 40D-4.301 and 40D–4.302, and the 1995 SWFWMD BOR. To demonstrate entitlement to the Draft Permit, IMC is required to provide reasonable assurance to DEP that it will meet these conditions of approval. As to Section 1 of the Altman Tract, different conditions apply for WRP review. These conditions are less stringent than ERP conditions of approval. IMC also is required to demonstrate compliance with Chapter 378, Florida Statutes, and the implementing provisions of Rule 62C-16 to receive approval of the Modified CRP. Rule 40D-1.6105 -- Legal Control Rule 40D-1.6105(1) states that all ERPs issued under these rules "are contingent upon continued ownership, lease, or other legal control of property rights in underlying, overlying or adjacent lands." Rule 40D-1.6105(3) states that "if the ownership, lease, or other legal control is divided, such permit shall immediately terminate unless the terms of the permit are modified by the Board or the permit is transferred pursuant to District rules." As previously found, the Mullins Family has fractional mineral rights to lands underlying most of the southern half of Altman Tract, including part of the portion of Horse Creek on the Tract proposed for preservation; and they have not consented to IMC's proposed mining and reclamation. The legal interest of the Mullins Family could interfere with IMC's plans for mining and reclamation on the southern part of the Tract. The rights of the Mullins Family also adversely affect part of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation. Under these circumstances, IMC does not have the necessary legal control of property rights underlying the Altman Tract for purposes of Rule 40D-1.6105. IMC's application and other submittals to DEP during the review process did not disclose the interests of the Mullins Family in the Altman Tract although IMC was well aware of those interests. There is no indication that DEP was aware of the interests of the Mullins Family before deciding to give notice of its intent to issue the Draft Permit. There was no testimony or evidence from DEP concerning the significance of the mineral interests of the Mullins Family. BOR 3.2.1 -- Elimination or Reduction of Impacts BOR 3.2.1 requires that applicants explore practicable design modifications to reduce or eliminate adverse impacts to wetlands and other surface water functions. With respect to phosphate mining, there are no practicable design modifications that would completely eliminate impacts to wetlands and still allow the underlying resource to be mined. The most severe design modification, in the context of phosphate mining, essentially amounts to a "mine or no mine" decision. As a result of pre-application conferences, IMC proposed not to mine in a portion of the flow-way of Horse Creek and the adjacent forested wetland systems. IMC and DEP take the position that the economic value of the phosphate rock resource underlying the wetlands on the Altman Tract is a factor to be considered in deciding whether additional wetlands should be avoided. Actually, BOR 3.2.1.1 states that a proposed modification will not be considered "practicable" if it "is not economically viable" and "need not remove all economic value of the property in order to be considered not 'practicable'" but that "[c]onversely, a modification need not provide the highest and best use of the property to be 'practicable.'" There was no persuasive evidence that expanding the preserved area would not be "economically viable" or that it would "remove all economic value of the property." It is clear from the evidence that IMC had no reasonable expectation that it would be allowed to mine the areas it is proposing for preservation. The evidence also was persuasive that IMC also did not initially have reason to expect that it would be allowed to mine the Central Marsh. IMC and DEP cite other so-called design modifications to reduce the impacts of phosphate mining on the Altman Tract: the proposed mining and reclamation sequence to reduce the number of wetlands that would be disturbed and not reclaimed at any point in time; the requirements that the mitigation marsh at the Manson Jenkins Project in the headwaters of the West Fork of the Horse Creek, as well as the Replacement Central Marsh on the Altman Tract, must be successfully reclaimed as "up front mitigation" before mining is allowed to occur in the existing Central Marsh on the Altman Tract; and a requirement that IMC construct the AFW so that, until mining of the Central Marsh is allowed to occur, mining elsewhere on the Tract will not adversely impact flow to the Central Marsh. While clearly beneficial, the proposed mining and reclamation sequence is limited because no recharge ditches are planned for the individual mine blocks. As previously found, this will adversely affect wetlands in adjoining areas, resulting in adverse impacts to wetlands one to two years before they are mined. It also will have an impact on wetland reclamation. The requirements for "up-front mitigation" also are beneficial--i.e., it is better than not requiring "up-front mitigation." But if success of the required "up-front mitigation" is delayed, the AFW will have to supply water for both the existing Central Marsh and the proposed Replacement Central Marsh for a correspondingly extended length of time. Reasonable assurances were not given that enough water can be supplied to both marshes to sustain required hydroperiods without adverse impacts even for the length of time contemplated by the proposed mining and reclamation sequence, much less for an extended period of undetermined length. The "up-front mitigation" is required to meet the success criteria specified in Special Condition 11 of the Draft Permit. However, full function is not restored at this point in the reclamation process. Under Special Condition 12 of the Draft Permit, IMC is required to report data on physical and biological development to DEP for at least another five years. Under Special Condition 13, development of the Replacement Central Marsh is to be monitored and maintained "to promote survivorship and growth of desirable species." Under Special Condition 14, reclaimed wetlands are not to be "released" by DEP until constructed in accordance with permit requirements, more stringent "release criteria" (summarized in Table MR-2 of the Draft Permit) are met, and no intervention in the form of irrigation, de-watering, or replanting of desirable vegetation has occurred for a period of two consecutive years. The evidence was that this often takes longer than originally envisioned. The reclaimed wetlands identified by IMC as successful examples of the reclamation proposed at the Altman Tract do not provide full wetland function despite the fact that most of them have been existence for more than 15 years. The median date of release from DEP oversight for the 15 reclaimed wetlands was 10 years. IMC also cites the AFW as a design modification under BOR 3.2.1. But clearly no mining of the Central Marsh and watercourse between it and the box culverts under SR 37 would be allowed without the AFW, and the very need for the AFW begs whether IMC should be permitted to mine those areas. Based on the facts of this case, mining the existing Central Marsh and the watercourse between the Central Marsh and SR 37 should not be allowed or, if allowed, should be delayed until the mitigation headwater marsh on the Manson Jenkins Project is released by DEP. In addition, no mining should be allowed in the area between the two forested wetland bay swamps to ensure that the ditch and berm recharge ditch system areas will be effective in protecting those preserved areas. Rule 40D-4.301(1)(a) --Water Quantity Impacts Under Rule 40D-4.301(1)(a), an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas; and (2) groundwater that enters surface water streams, sometimes referred to as "base flow." On the Altman Tract, both rainfall runoff and baseflow basically flows into the watercourse between the box culverts under SR 37, the Central Marsh, and the rest of Horse Creek. Surface water flow off the Tract exits where Horse Creek exits the Tract. During mining and reclamation activities on the northern half of the Tract, the ditch and berm recharge system will capture rainfall runoff on these areas and eliminate the rainfall runoff contribution from those areas to stream flow at the point where Horse Creek exits the Altman Tract. When the southern half of the Tract is mined and reclaimed later in the sequence, the ditch and berm recharge system will capture rainfall runoff from the southern half of the Tract and eliminate the rainfall runoff contribution from those areas. The ditch and berm recharge system helps maintain baseflow from those areas, except where open mine cuts are too close. The combined effect of rainfall runoff and baseflow, however, will be a reduction in surface water flow off the Altman during mining. After mining and reclamation are complete, the ditch and berm systems will no longer be required. Rainfall runoff will flow across and through the reclaimed wetlands and then flow off-site. However, as previously found, more and deeper wetlands will be present after reclamation is completed than exist today. These wetlands tend to "use," through evapotranspiration (ET), more water than a comparably sized upland area. Thus, after reclamation is completed, there will be some reduction in the amount of water contributed from the property to the stream flow where Horse Creek exits the Altman Tract. IMC did not provide DEP with any hydrologic analysis of the extent of the water quantity impact of mining and reclamation on stream flow in Horse Creek downstream from the Altman Tract prior to DEP's decision to issue notice of intent to issue the Draft Permit. Subsequently, information of this nature was provided to DEP by Dr. Garlanger. Dr. Garlanger performed modeling to assess the potential significance of flow reductions anticipated during mining and reclamation at the Tract. The modeling results predicted that during mining and reclamation there will be some reduction in the flow rate in Horse Creek leaving the Tract during the 30 percent of the year when flow leaves the Tract. The predicted reduction, however, would be only a small percentage of the total flow at any point in time. Furthermore, the only effect of the predicted reduction in flow would be to reduce slightly the depth of the water in the channel. This predicted depth reduction probably would have no adverse ecological impact. Dr. Garlanger predicted that, after mining and reclamation are completed, flow in Horse Creek at the property line actually would increase very slightly on the average, but only because a portion of the runoff that now enters Horse Creek a bit further downstream from the Tract would report to the exit of Horse Creek from the Tract post-reclamation. Using the predictions from his modeling, Dr. Garlanger also assessed the worst-case impact of the predicted flow reductions from the Tract on several downstream locations. His analysis predicted that, during mining, there would be slight flow reductions occurring during otherwise high-flow conditions with the magnitude of such flow reduction decreasing as one moves downstream. Flow impacts at Charlotte Harbor were predicted to be miniscule and immeasurable. Even where measurable impacts were predicted at the closer downstream locations, the only anticipated impact was a slight reduction in water depth that is of no ecological consequence. During low-flow periods, no flow reduction impacts were predicted at any downstream locations. Flow impacts predicted after reclamation is complete at the Tract were even less than those predicted during mining. Whether IMC gave reasonable assurance as to the water quantity impact of mining and reclamation on the Altman Tract on receiving waters and adjacent lands depends completely on the validity of the modeling analysis performed by Dr. Garlanger. Nonetheless, and even though Dr. Garlanger's analysis was not prepared until after DEP's notice of intent, there was no evidence as to DEP's evaluation of the analysis since no DEP witness was called to give opinion testimony on this (or any other) issue. Dr. Garlanger's analysis essentially divided the Altman Tract into uplands and wetlands. For the uplands, he simulated runoff and baseflow into the wetlands using a modified version of the Environmental Protection Agency's (EPA's) Hydrologic Evaluation of Landfill Performance ("HELP") Model, which was run in a continuous manner with daily rainfall for 25 years. Dr. Garlanger then used those results as an input for another model for the wetlands to simulate change in wetland storage. He used a spreadsheet program to keep track of the changes on a daily based. Whenever water levels in the wetlands exceeded storage capacity, the excess water was treated as stream flow. This analysis was performed for five scenarios: current conditions; pre-mining at Four Corners (with a larger testing area); during mining at the time point of maximum capture or severance of acreage from the natural system; post- reclamation on the Altman Tract only; and post-reclamation on the entire reclaimed watershed. Dr. Garlanger's modified HELP model was not calibrated. Calibration is the process of verifying that the computer program matches real life conditions. Calibration is necessary to check the ability of the model to make reliable and accurate predictions. Since Dr. Garlanger's model was not calibrated, it only could be used for interpretative (i.e., comparative) purposes. The HELP Model was specifically designed to evaluate the movement of water through the top of a landfill into the leachate collection system. The HELP Model User's Manual specifically states "the model should not be expected to produce credible results from input unrepresentative of landfills." (T. 2004; Co. Ex. 55). Recognizing that the Altman Tract is not representative of a landfill, Dr. Garlanger modified the primary groundwater flow equation in the HELP model by changing several lines of computer code. Dr. Garlanger's modification of the HELP model has not been sanctioned by the authors of the HELP Model, nor has it gone through EPA's peer review and administrative approval process. The County's hydrologist, Mr. Phil Davis, questioned the validity of Dr. Garlanger's analysis on numerous grounds. Many of his questions were answered by Dr. Garlanger in rebuttal. But some important questions remain. One of Mr. Davis' criticisms was an error he thought Dr. Garlanger made in using Dupuit seepage equation. In rebuttal, Dr. Garlanger explained that there was no error because he was using the Uniform Infiltration and Drainage Equation, not the Dupuit equation. But Dr. Garlanger's report stated that he used yet another seepage equation, called Darcy's Law, which Dr. Garlanger called the "mother of all other seepage equations." Another of Mr. Davis' criticisms was that much better modeling tools were available to IMC, instead of the combination of spreadsheet models and other models, including the modified HELP model, used by Dr. Garlanger. The best of them, according to Mr. Davis, is one called the Integrated Hydrologic Model, which was developed by Florida Institute of Phosphate Research ("FIPR") specifically to model the pre-mining and post- reclamation hydrology of a phosphate mine project (T. 2111- 2115). In rebuttal, Dr. Garlanger acknowledged the existence of more complicated, numerical models that he could have used. He testified that he did not use any of them because he was "comfortable with the HELP model," having been "using it for a long time." He "only had to make a very minor modification," "basically one line of computer model code to make the HELP model calculate accurately the groundwater outflow." (T. 3401- 3402). He testified that he had been using his modified HELP model for three years. He claimed that his model was "peer- reviewed" in the sense that he was using it for IMC's pending Ona Mine application. As part of the "Team Permitting Process" for the Ona Mine application, he discussed his modeling approach with engineers and hydrologists from DEP and SWFWMD on the "hydrology work group" and stated: "Several suggestions were made. I believe I incorporated most of the suggestions into the model." (T. 3402-3403). There was no corroborating testimony or evidence from DEP or SWFWMD. Mr. Davis also questioned whether Dr. Garlanger's modification of the HELP model appropriately took into account changes in the surficial aquifer as a result of mining and reclamation. It appears that Dr. Garlanger's HELP simulations all used the same soil and aquifer parameters. The surficial aquifer presently consists of topsoil, overburden, and matrix. During active mining, the site will consist of some combination of open mine pits filled with recirculation water, some mined pits filled with sand tailings, and other mined pits filled with sand tailings and topsoil. In addition, IMC may throw overburden up against some or all mine cuts to help prevent seepage of groundwater flow out of the mine cuts. As a result, there will be vertical layers of overburden in parts or all of the site. Dr. Garlanger testified in rebuttal that he actually analyzed soil and aquifer parameters and determined that they would be the same before mining, during mining, and post- reclamation. Again, there was no opinion testimony from DEP. It is clear that proposed activities on the Altman Tract will reduce stream flow in Horse Creek to some extent. It also is clear that phosphate mining historically has contributed to some extent to decreased stream flow in the Peace River. As mining moves south, more runoff will be captured during mining since the unit rate of runoff is higher in the Lower Basin of the Peace River due to different soil conditions there. Mr. Davis testified that he believed the capture rate for the Altman Tract to be seven to nine inches a year--as much as 50 percent more than estimated by Dr. Garlanger. (T. 2192). Given the importance of surface water flow to the ecology of Horse Creek, the Peace River, and Charlotte Harbor, additional assurances should be required to better quantify the decrease in stream flow in Horse Creek and downstream that will result from mining the Altman Tract through use of a better model and further scrutiny of the soil and surficial aquifer parameters used for modeling. With regard to groundwater quantity, the evidence demonstrated that the ditch and berm recharge system generally will be effective in maintaining surficial aquifer water levels in adjacent lands and wetlands during mining and reclamation. Following reclamation, groundwater levels probably will return essentially to pre-mining elevations. Mr. Davis questioned whether lower post-reclamation topography in the southern end of the Altman Tract could cause a problem. A large reclaimed wetland only 100-200 feet from the southern property boundary would be five feet deeper than its pre-mining counterpart and could possibly cause drawdown impacts to wetlands in the adjoining Manatee River Basin in that location. Mr. Davis' concern was not directly rebutted by IMC, but it was not enough to overcome IMC's reasonable assurances as to water quantity impacts. As previously found, while the ditch and berm recharge systems generally would provide adequate ground water flow to the preserved wetlands on the Altman Tract during mining, reasonable assurances were not given that there will be no adverse impacts on the two forested bay swamps to be preserved; the ditch and berm system tracks the northern boundaries of those wetlands so closely that they may well be impacted through loss of surface water runoff and perhaps also groundwater from the north during mining. (4) Rule 40D-4.301(1)(b) -- Flooding An ERP applicant must demonstrate that its activities will not cause an increase in on-site or off-site flooding potential. To make this demonstration, a storm water analysis is performed. Rule 40D-4.301(1)(b) and BOR 4.2 require that predicted peak discharges from a mining site during a 25-year/24- hour storm event after mining and reclamation are completed may not be greater than that which would have occurred prior to mining or other development in the watershed. Under BOR 4.2.a.1, the allowable discharge is the peak rate at which runoff leaves the property by gravity under existing site conditions. Under BOR 4.2.b, unless otherwise specified, off-site discharges for the pre-mining and reclaimed conditions shall be computed using SWFWMD's 24-hour, 25-year rainfall maps and Soil Conservation Service's Type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11. Several peak flow analyses meeting the BOR requirements were discussed at the hearing in this case. All concluded that the post-reclamation peak discharges would be less than pre-mining peak levels. DEP relied on them in deciding to give notice of intent to issue the Draft Permit. Specifically, Mr. Steve Partney, DEP's reviewing engineer, testified that he relied primarily on an analysis prepared by Florida Engineering Design (FED), as the last analysis submitted in response to DEP's questions during the review process. All of these analyses utilized rainfall runoff models. Pickett and Associates (Pickett) and FED utilized the HEC-1 Model, and FEES utilized the AdICPR model. In its review of these analyses, DEP did not perform any independent modeling or calculations to verify the predicted flows. None of these models were calibrated; as a result, they only can be used for interpretative (i.e., comparative) purposes. All of these hydrologic analyses suffered from deficiencies, which rendered the model results unreliable. None of them accounted for water storage (retention or detention) on- site either pre-mining or post-reclamation; all essentially produced rainfall runoff hydrographs. FED's analysis improperly routed water out of wetlands located on off-site clay settling areas, and Pickett's misplaced a decimal point in defining the slope of the watershed. As a result, the discharges predicted by all these analyses were too high. The estimates for the five to 7.5 square mile Altman Tract drainage basins modeled ranged from 14,796 to 959 cubic feet per second (cfs), with corresponding peak unit flow rates ranging from 1,887 to 185 cfs per square mile. The peak flows were many times larger than the 25-year peak flood estimates at the gauging stations on Horse Creek near Arcadia, which has a 218 square mile drainage basin, and even on the Peace River at Arcadia, which has a 1,367 square mile drainage basin. They are also much greater than peak flows measured at other stream gauges in the Peace River with drainage areas much greater than the one simulated in this case. While none of these model predictions were reliable, the models still are useful for comparative purposes as an interpretive tool. All predicted lower peak flows after mining and reclamation than before. This information, together with the knowledge that there was going to be an increase in the amount of wetland acreage on the Tract, was a sufficient basis for a finding that there would not be increased flooding potential. In its case-in-chief, IMC presented the testimony of Dr. John Garlanger on an empirical study he performed primarily to assess the AFW to more accurately estimate the actual anticipated peak flows at the property. Having done his study for the AFW, it was relatively easy for him to use the same analysis to predict peak flows where Horse Creek exits the Tract. Employing a regional multiple regression analysis technique, Dr. Garlanger utilized actual historical flood flow information from nearby streams and estimated a pre-mining peak flow rate of 227 cfs exiting the property and a post-reclamation peak flow rate of 203 cfs at the same location. The County criticized Dr. Garlanger's regional multiple regression analysis as being a modification of a USGS- sanctioned regression equation developed for the State of Florida by W.C. Bridges of the United States Geological Survey in 1982. As indicated in a report submitted by Dr. Garlanger in March 2000, the Bridges equation would predict a post- reclamation peak flow for the Altman Tract that is a few percentages higher than the pre-mining peak flow. (798 cfs vs. 763 cfs, although other peak flows were indicated elsewhere in Dr. Garlanger's testimony). (T. 854, 856, 3492). But this is because use of the Bridges equation for both pre-mining and post-reclamation does not account for the proposed increase in storage on-site post-reclamation. Bridges' method recognized that the presence of lakes and wetlands in the watershed would affect flood flows. He took into account the actual area of lakes in a particular watershed and then assumed that wetlands would cover an additional three percent of the drainage area. However, in the region of Florida where the Altman Tract is located, there are few lakes but lots of wetlands in the watersheds involved. For that reason, Dr. Garlanger modified the Bridges equation and used the actual wetland percentage present in the watersheds for his analysis. Statistical testing gave Dr. Garlanger a very high confidence level in the results from use of his modified equation. The County's criticism of Dr. Garlanger's modification of the Bridges equation was based primarily on a misunderstanding that wetlands assumed to be "full" would provide no storage capability and would have no impact upon the flooding conditions on the Tract. Actually, "full" wetlands have no more retention capacity and begin to overflow. Because of the nature and configuration of wetlands, however, additional waters reporting to these systems do not immediately flow downstream. Instead, the water is detained in the wetland systems as it overflows laterally and only gradually discharges waters to downstream locations. This detention capacity of wetlands provides significant flood control function and was properly taken into account in Dr. Garlanger's analysis. The County also criticized Dr. Garlanger and the other IMC consultants for making no change in their models to account for changes in the composition of the surficial aquifer post-reclamation. However, Dr. Garlanger explained in rebuttal that soil storage capacity of the surficial aquifer affects the runoff curve numbers used as parameters in the various models. He testified that he reviewed USGS measurements for mined and unmined areas and found that the curve numbers were very similar for pre-mined and post-reclamation conditions. For that reason, he did not think using the same runoff curve numbers pre-mining and post-reclamation would introduce any significant error into the model results. The County also criticized Dr. Garlanger for using four gauging stations on Horse Creek for data to develop his regional regression equation. This may have introduced bias into his analysis, but the County made no attempt to quantify the error that may have been introduced. The County also criticized Dr. Garlanger's regional multiple regression analysis for not taking into account antecedent moisture conditions. However, Dr. Garlanger explained that, while he did not use the "Soil Conservation Service's type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11," as required by BOR 4.2.b, his equation accounted for antecedent moisture conditions by using actual peak flow data. Notwithstanding the County's criticisms, Dr. Garlanger's modification of the Bridges equation probably produced the most accurate peak flow study in evidence in this case. While Dr. Garlanger's study does not meet the technical requirements of BOR 4.2.b, it supplements the earlier analyses and provides additional assurance that post-reclamation peak discharges from the Altman Tract probably will not exceeding pre- mining peak discharges. Rule 40D-4.301(1)(c) -- Impacts to Surface Water Storage and Conveyance Capabilities IMC has agreed to modify the point of connection between the Replacement Central Marsh and the preservation area based on recommendations from Dr. Garlanger to minimize any disturbance of the preserved area. As indicated, Dr. Garlanger used his regional multiple regression analysis to assess the capacity of the AFW to convey anticipated peak flows during its operation and opined that the AFW, as designed, will carry these flows without difficulty. However, his analysis raised some concerns with regard to erosion control. For that reason, he recommended and IMC agreed to implement minor design revisions at both ends of the AFW: the 90-degree "elbow" turn at the inlet from the culverts will be protected from erosion by the placement of rip-rap; and the outlet to the Central Marsh will be modified to allow water to sheet flow at a slower rate when entering the Central Marsh. (IMC Ex. 96). With these changes, Dr. Garlanger predicted that anticipated flows through the vegetated AFW would not cause erosion in the structure or downstream. The County's criticisms of Dr. Garlanger's regional multiple regression analysis have been addressed. See Findings 174-176, supra. The County's witnesses did not perform any independent modeling of anticipated flows through the AFW, and Dr. Garlanger's analysis provided reasonable assurance that peak flows would neither cause erosion nor overtop the AFW. Of all the peak flow analyses, only Pickett's analysis predicted peak flows high enough to cause erosion and to overtop the AFW. But Pickett's extremely high peak flows were clearly erroneous. A hydrologic analysis was also performed to ensure that the Replacement Central Marsh would be adequate to carry anticipated peak flows. Taken together, the evidence proved that storage and conveyance capabilities will be more than adequate to handle peak discharges without increasing flooding either upstream or downstream of the Altman Tract both during mining and after reclamation. Rule 40D-4.301(1)(d) -- Fish & Wildlife Rule 40D-4.301(1)(d) requires that IMC provide reasonable assurances that its proposed activities "will not adversely impact the value of functions provided to fish and wildlife, and [l]isted species, including aquatic and wetland dependent species, by wetlands, other surface waters and other related resources of the District." BOR 3.2.2 requires IMC to provide reasonable assurances that its proposed activities "will not impact the values of wetlands, other surface waters and other water related resources of the District, so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." It is clear from the evidence that the proposed mining of the Altman Tract will have adverse impacts on fish and wildlife resources on the Altman Tract. IMC characterizes these impacts as "short-term" and "localized" and notes that "temporary destruction of habitat and displacement of individuals is an unavoidable consequence of mining activities." IMC proposes to mitigate for these impacts through the implementation of "special measures" and by reclaiming the Tract to more and better wetland wildlife habitat than presently exists. However, as previously found, reasonable assurances have not been provided that the "special measures" and reclamation will offset the adverse impacts. See Findings 103-126, supra, and 220-222, infra. Rule 40D-4.301(1)(e) -- Water Quality Rule 40D-4.301(e) requires that IMC provide reasonable assurances that its proposed activities "will not adversely affect the quality of receiving waters such that the water quality standards . . . will be violated." According to Rule 62-312.080(1), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. Water within active mining areas will be retained within the mine's water recirculation system. Any necessary discharges will be made from a permitted outfall located on other property owned by IMC. Years of sampling and analysis demonstrate that water discharged from IMC's permitted outfalls is of high quality and reflects a very high rate of compliance with permit criteria. The waters on the Altman Tract and in Horse Creek where it exits the Tract are classified by DEP as Class III water bodies. IMC provided reasonable assurances that, after reclamation, surface water bodies on the Altman Tract should be able to achieve applicable Class III surface water quality criteria. The extensive water quality monitoring conducted by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. Reclaimed wetland areas will not be connected to waters of the state until water quality criteria are met. Reasonable assurances were given that there will be no water quality impacts on any Class I waters, any Outstanding Florida Water (OFW) or aquatic preserve, or any Class II waters. The first downstream Class I water is 41 miles from the Tract; the Charlotte Harbor OFW is 51 miles away, and the nearest Class II water (approved for shellfish harvesting) is 55 miles away. Extensive groundwater quality monitoring in the vicinity of phosphate mining operations has demonstrated that such operations do not adversely impact the quality of groundwater in the surficial aquifer or in the deeper intermediate or Floridan aquifer systems. Charlotte County argued that adverse water quality impacts will occur downstream of the AFW (namely, discharge of turbid and sediment-laden water into the Central Marsh) if the flow velocity through the AFW becomes excessive or if the water overtops the AFW. But the evidence proved that such concerns are theoretical only, and unlikely to occur. The County also argues that destruction of stream habitat on the Altman Tract will result in a lack of habitat for benthic organisms and higher nutrient loadings and concentrations. However, the most significant stream habitat not proposed to be preserved is found in parts of the Central Marsh and in the watercourse between it and the box culverts under SR 37; most of the first-order streams on the Tract are the other agricultural ditches, which are less significant streams. For that reason, reasonable assurances were given that, if this kind of impact occurs, it would be limited, and applicable water quality standards probably would not be violated. Rule 40D-4.301(1)(f) -- Secondary Impacts Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not cause adverse secondary impacts to water resources. There was no evidence of any secondary impacts. All impacts are primary impacts resulting from IMC's proposed activities on the Altman Tract. Rule 40D-4.301(1)(g) -- Minimum Flows and Levels Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not adversely impact the maintenance of surface or groundwater levels or surface water flows "established in pursuant to" Section 373.042, Florida Statutes. No minimum flows or levels have been established by rule pursuant to Section 373.042, Florida Statutes, for any water body potentially impacted by the proposed mining or reclamation at the Altman Tract, including Horse Creek or the Peace River. See ManaSota-88, Inc., et al. v. IMC Phosphates Co., DOAH Consolidated Case Nos. 01-1080, etc. (DEP Final Order Nov. 22, 2002)("Manson Jenkins Final Order"), Ruling on Exception II ("Minimum flows and levels established pursuant to Section 373.042, Florida Statutes, must be adopted by rule, not on a case-by-case permit basis"); Findings of Fact 110, 199, 267 and 284. Until applicable minimum flows and levels are established by rule, IMC's proposed activities cannot impact the maintenance of any minimum flows and levels. The Peace River Regional Water Supply Authority's (Authority's) water plant is downstream of the confluence of Horse Creek and the Peace River. The Authority has a water use permit ("WUP") authorizing water withdrawals from this facility through 2016. Charlotte appears as a permittee on the WUP. Standard Condition 8 of the WUP requires surface water withdrawals to cease or be reduced if the Peace River's flow falls below minimum levels established in Florida Administrative Code Chapter 40D-8. Once SWFWMD formally establishes minimum flows and a recovery strategy for the Peace River, this permit condition will require the Authority to cease or reduce its withdrawals to achieve the minimum flow. The County wants any Draft Permit issued in this case to include a provision similar to the one in the Authority's WUP. But the Draft Permit is not a WUP, and there was no evidence as to any practicable way to impose a similar condition in the Draft Permit. Rule 40D-4.301(1)(h) -- Works of the District Rule 40D-6.051(5) states that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if SWFWMD issues an ERP for a project. The testimony of DEP witnesses was that DEP and SWFWMD have an informal agreement that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if DEP issues an ERP for a project. Rule 40D-4.301(1)(h) requires IMC to provide reasonable assurances that its proposed activities "will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S." Under Rule 40D-6.031(2)(d), tributaries of the Peace River are "Works of the District." As previously found, Horse Creek is a tributary of the Peace River. Rule 40D-6.021(1) defines "tributaries" to mean "the contributing streams and other watercourses including brooks, rills, and rivulets, extending upstream to the point water usually begins to flow in a regular channel, with an alveus, or bed, and banks or sides, or to the point where the lines of ordinary high water marks converge, whichever extends the farthest upgradient." Section 373.019(11), Florida Statutes, also defines "other watercourses" to mean "any canal, ditch and other artificial watercourses in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted." As previously found, Horse Creek passes completely through the Altman Tract. For that reason, the portions of Horse Creek passing through the Altman Tract are part of the Horse Creek tributary of the Peace River and are "Works of the District." It is clear that the "Works of the District" on the Altman Tract will be adversely affected by IMC's proposed activities. Mining will destroy and remove them upgradient of the proposed preserved area. IMC characterizes the destruction and removal of the Horse Creek tributary on the Altman Tract as a "temporary disturbance" and relies on its proposal to maintain flows through use of the AFW, as well as its position that these areas "will be reclaimed in a manner that will enhance their ecological function." Mitigation appears in Chapter 3 of the BOR, which is titled "Environmental." According to BOR 3.2, the criteria contained in Chapter 3 (including mitigation) apply to the "Environmental Conditions for Issuance" contained in BOR 3.1.1. Rule 40D-4.301(1)(h) is not identified in BOR 3.1.1 as one of the "Environmental Conditions for Issuance." If mitigation is available to offset adverse impacts to "Works of the District," reasonable assurances were not given that IMC's proposed reclamation will offset those impacts. As found, reclamation will not restore existing stream-like flow in parts of the Central Marsh and between it and the box culverts under SR 37. It was not proven that eliminating these features will "enhance" ecological function. Rule 40D-4.301(1)(i) -- Engineering and Scientific Capability Rule 40D-4.301(1)(i) requires IMC to provide reasonable assurances that its proposal "is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed." As reflected in previous findings, reasonable assurances were not provided as to certain aspects of IMC's proposal. Reasonable assurances were not provided that both the existing Central Marsh and proposed Replacement Central Marsh can be hydrated from off-site flow when this would be necessary. Reasonable assurances were not provided that the ditch and berm recharge system will be effective in preserving the two bay swamp forested wetlands. Reasonable assurances were not provided that stream flow to receiving waters will not decline. Reasonable assurances were not provided as to all aspects of the reclamation plan. In other respects, IMC's proposal is capable of being effectively performed and will function as proposed, based upon generally accepted engineering and scientific principles. Rule 40D-4.301(1)(j) -- Financial, Legal and Administrative Capability (BOR 3.3.3.7, Financial Responsibility) Rule 40D-4.301(1)(j) requires IMC to provide reasonable assurances that its proposed activities "will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued." It is clear from the evidence that IMC owns the surface lands and the phosphate mineral interests to a depth of 150 feet. But, as previously found, IMC did not give reasonable assurance that it has the ability to prevent the Mullins Family from exercising its rights to explore and mine for minerals on the southern half of the Altman Tract. Without the ability to exclude the Mullins Family, IMC cannot give reasonable assurance that it can perform mining and reclamation of those lands, as proposed. In addition, the Mullins Family's mineral rights adversely impacts part of the conservation easement offered by IMC. BOR 3.3.7.6 allows an applicant to establish financial responsibility by several means, including "(d) Deposit of cash or cash equivalent into an escrow agreement." BOR 3.3.7.7 required IMC to submit an estimate of the total cost of wetlands mitigation addressing the relevant elements of cost as set forth in the BOR. The estimate is to be prepared assuming that a third-party contractor would do the mitigation work. The estimate is to be submitted along with a draft of the financial responsibility mechanism. IMC's most recent proposal estimates mitigation cost of $8,320 an acre for herbaceous wetlands, $8,722 an acre for shrub marshes, and $11,415 an acre for forested wetland system, for a total cost of $6.7 million. (T. 125; IMC Ex. 47). But the County presented evidence through its expert, Kevin Erwin, that the actual cost will be $25,660 an acre for herbaceous wetlands and $28,484 an acre for forested wetlands. (T. 2799- 2801; Co. Ex. 1612). IMC did not rebut the County's evidence. As a result, IMC did not provide reasonable assurances that its demonstration of financial responsibility is sufficient. In addition, IMC's draft escrow agreement is to be funded with cash on an annual basis. IMC takes the position that this is acceptable because BOR 3.3.7.6 requires establishment of financial responsibility "for each phase of the project." But calendar years of the proposed mining and reclamation sequence are not separate phases of the mining and reclamation project and should not be considered to be separate phases for purposes of BOR 3.7.7.6. IMC's ERP application states on page SP-01960 that it is not a multi-phase permit. The Draft Permit, in Table 1-A, refers to just two project phases--the first lasting six years, and the second spanning the rest of the project. According to BOR 2.1, a phased project is one where the applicant obtains a conceptual permit encompassing all project phases before obtaining a construction permit for the first phase; when no conceptual permit has been obtained, "applications for phases of a project may be considered only when the phases are totally independent of, or make sufficient provisions for, adjacent lands." Here, the years in IMC's proposed mining sequence are not totally independent. As previously found, wetlands in the active mining blocks will be impacted by mining of adjacent lands. IMC does not offer any financial responsibility for proposed reclamation of uplands. Mining and reclamation of uplands are not considered part of the "project" for purposes of Rule 40D-4.301(1)(j) and the financial responsibility BOR provisions. However, as found, successful reclamation of uplands is required in this case to give reasonable assurances as to successful reclamation of the wetlands. Rule 40D-4.302(1)(a) -- Public Interest Balancing Test Rule 40D-4.302(1)(a) requires that IMC provide reasonable assurances that its proposed activities will not be contrary to the public interest, upon consideration of the seven factors listed in the rule. (According to Florida Administrative Code Rule 62-312.080(2), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. See also Section 403.918(2), Florida Statutes (1991). Public health, safety, or welfare or the property of others As found, the project is located on IMC's private property and will not adversely affect public health, safety, or welfare, or the property of others in any way not addressed under one of the other factors. Conservation of Fish & Wildlife The proposed activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Reasonable assurances were not given that the proposed mining sequence will prevent adverse impacts; it will be of some benefit to some mobile wildlife species but not enough to avoid adverse impacts on conservation of them and their habitat. Measures proposed by IMC to help conserve fish and wildlife, including endangered or threatened species, and their habitats both on-site and off-site will be beneficial, but reasonable assurances have not been given that the overall effect of the proposed activities will not be adverse. IMC suggests that its voluntary establishment of a conservation easement over the preserved flow-way of Horse Creek and the Replacement Central Marsh will assure that the fish and wildlife values in these areas will be protected in perpetuity. However, that would not be true as to the portions of preserved flow-way where the Mullins Family has mineral rights. In addition, as of the date of the final hearing, the Board of Trustees of the Internal Improvement Trust Fund had not accepted the offered conservation easement. Without acceptance and management, the benefits of the offered conservation easement are not assured. IMC also suggests that its offered conservation easement and will act as a wildlife corridor and will connect to a larger regional network of habitat corridors conceived of and being encouraged by DEP known as the Integrated Habitat Network (IHN). However, it is not clear from the evidence how or if the IHN actually will tie into the Altman Tract. Navigation, flow or harmful erosion or shoaling As found, reasonable assurances have not been given that the proposed activities will not adversely affect the flow of water on the Altman Tract--specifically, off-site stream flow, on-site stream flow between the box culverts under SR 37 and the Central Marsh, and the flow required to hydrate both the existing Central Marsh and the proposed Replacement Central Marsh during the times this will be required. Otherwise, reasonable assurances have been given that the proposed activities will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Horse Creek and the other water bodies on the Altman Tract are private and not navigable. With design modifications recommended by Dr. Garlanger and accepted by IMC, reasonable assurances have been given that the AFW will not cause erosion either within the AFW or in downstream waters. Based on Dr. Garlanger's recommendation, IMC has also agreed to revise the post- reclamation topography to match the elevation of the roadside ditch along SR 37 with bottom contour elevations of the Replacement Central Marsh. (T. Garlanger at 578; IMC Ex. 97, 98). With this revision, post-reclamation flows through this area will not cause erosion. Fishing, recreational values or marine productivity The proposed activities will not adversely affect the fishing or recreational values or marine productivity in the vicinity. The Altman Tract is privately owned and does not currently support public recreation or fishing activities. Being approximately 50 miles upstream from Charlotte Harbor, there is no marine productivity in the area. Following completion of reclamation mining activities, the Altman Tract will support similar fish and recreational values as currently exist on the Tract. Temporary or permanent nature Section 378.202(1), Florida Statutes, states that phosphate mining is a temporary use of the land. Under Chapter 378, Florida Statutes, and Rule 62C-16, mine operators are required to expeditiously reclaim mined land to a beneficial use. In the case of the Altman Tract, some combination of mining and reclamation activities are planned to take place for approximately 12 years, with reclamation activities being completely at the end of 17 years. However, reclamation could take longer than planned. When completed, the reclamation project becomes permanent in nature. Impact on significant historical and archeological resources. The Tract contains no significant historical or archeological sites. Current conditions and relative value of functions performed by affected areas. As previously found, the current condition and relative value of functions performed by the Altman Tract are very high. Reasonable assurances were not given that conditions and relative value of functions after reclamation will be as high. BOR 3.3 -- Mitigation Unavoidable adverse impacts to wetland functions caused by phosphate mining may be offset by mitigation as provided in BOR 3.3. BOR 3.3 cautions: "In certain cases, mitigation cannot offset impacts sufficiently to yield a [permittable] project. Such [cases] often include activities which . . . adversely impact habitat for listed species, or adversely impact those wetlands or other surface waters not likely to be successfully recreated." Under Section 373.414(6), Florida Statutes, phosphate mining wetland reclamation activities are deemed to be appropriate mitigation for purposes of the ERP process if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. In this case, IMC provided reasonable assurances that water quality will be maintained but did not prove that proposed reclamation activities will maintain or improve the function of the biological systems present at the site prior to the commencement of mining activities. Rule 40D-4.302(2) -- Consideration of Past Violations DEP reviewed issues dealing with IMC's compliance with the ERP rules. DEP also took into consideration compliance issues with SWFWMD. All compliance issues related to both have been resolved. Rule 40D-4.302(1)(b) -- Cumulative Impacts Analysis Section 373.414(8)(a), Florida Statutes, requires DEP to consider the cumulative impacts of a proposed project on surface water and wetlands within the same drainage basin when evaluating an ERP application. Rule 40D-4.302(1)(b) requires an applicant for an ERP to provide reasonable assurance that the project will not cause unacceptable cumulative impacts on wetlands and other surface waters. Section 403.919, Florida Statutes (1991), also contained a somewhat different requirement for consideration of cumulative impacts, called "equitable distribution," which applies to WRPs. Section 373.414(8)(b), Florida Statutes, provides that, if an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, then DEP shall consider the regulated activity to meet the cumulative impact requirements of Section 373.414(8)(a). See also Manson Jenkins Final Order, Ruling on Exception I; Finding of Fact No. 282. To the extent that IMC relies on reclamation for mitigation, the mitigation is confined to the Altman Tract. If this mitigation offsets adverse impacts, as IMC claims, there would be no need to consider cumulative impacts, since all mitigation would be within the same drainage basin as the adverse impacts to be mitigated. The only off-site mitigation proposed by IMC in this case would relate to parts of the "special measures" proposed for protection and conservation of wildlife. The County criticized IMC for not assessing the cumulative impacts on scrub jays since mitigation for the loss of scrub jays and scrub jay habitat on the Altman Tract is to occur outside the Peace River Basin. However, scrub jays are not wetland-dependent species and need not be included in a cumulative impacts analysis under the applicable statute and rule. On the other hand, if the proposed mitigation does not offset the adverse impacts of the proposed project, the project's impacts would not be permitted, and a cumulative impacts analysis would be superfluous. In this case, reasonable assurances were not given that proposed reclamation will offset impact. If the Draft Permit is not issued for that reason, cumulative impacts would not have to be addressed. While perhaps unnecessary, IMC presented an analysis prepared by Dr. Garlanger on the cumulative impacts of phosphate mining on flow conditions in the Horse Creek sub-basin and in the Peace River Basin. Dr. Garlanger used information gathered by another IMC consultant as to the acreage mined and reclaimed in the Peace River Basin from 1978 through 2002, and as to acreage anticipated to be mined and reclaimed between 2003 and 2027. Using information from his other modeling efforts, including his modified HELP model, Dr. Garlanger estimated a "maximum capture rate" for lands undergoing mining and an "ET loss rate" for reclaimed lands. In arriving at the "maximum capture rate," Dr. Garlanger assumed that all runoff would be captured by the ditch and berm recharge system surrounding the acreage being mined. This was a conservative assumption in that some water is discharged through outfalls permitted under the National Pollution Discharge Elimination System (NPDES). On the other hand, Dr. Garlanger assumed that there would be no reduction in baseflow if all ditch and berm recharge systems are maintained and operated correctly. While probably reasonable for purposes of his analysis, this may have been a liberal assumption in that there might be some reduction in baseflow contributions to stream flow during mining. Dr. Garlanger estimated a "maximum capture rate" of 0.56 cfs per square mile. In arriving at the "ET loss rate," Dr. Garlanger analyzed the post-reclamation land forms and their accepted average ET rates, together with estimates in ET changes calculated in connection with other mines. Using his professional judgment, he decided to use an "ET loss rate" of 0.05 cfs per square mile for reclaimed lands. Dr. Garlanger then applied his "maximum capture rate" and "ET loss rate" to the average number of acres mined and reclaimed during the period 1978 through 2002. This produced an estimated 2.71 cfs decrease in average flow in the Horse Creek sub-basin basin, both at SR 64 and at SR 72. He then applied his "maximum capture rate" and "ET loss rate" to the average number of acres anticipated to be mined during the period from 2003 through 2027. This resulted in estimates of decreases in average flow in the Horse Creek sub-basin of 11.70 cfs at SR 64 and 17.75 cfs at SR 72 (where cumulative flow impacts are higher because more mining will occur further south in the basin). Dr. Garlanger labeled the difference between the estimated decrease in average flow for 1978-2002, and the projected decrease in average flow for 2003-2037--i.e., 8.99 and 15.04 cfs, respectively--as the "cumulative impact" at those locations. Flow duration curves using 1978-2002 average flows as the baseline were used to demonstrate that so-called "cumulative impacts" would mean lower levels during periods of high flow (less than 25 percent of the time) but insignificant differences during periods of low flow (the rest of the time). Dr. Garlanger then performed similar analyses, using the same "maximum capture rate" and "ET loss rate," for the part of the Peace River Basin above Arcadia and for the entire Peace River Basin above Charlotte Harbor. The estimated average decrease in flow was different at these two locations during the "baseline" period: 60.13 cfs at Arcadia; and 62.84 cfs at Charlotte Harbor. The projected average decrease in flow also was different at the two locations in the later period, 2003- 2027. Because the average acreage expected to be mined in the Peace River Basin in 2003-2027 is much less than the average acreage expected to be reclaimed, the average decrease in stream flow at the two locations is expected to be less than in the baseline period: 33.15 cfs at Arcadia; and 18.12 cfs at Charlotte Harbor. Dr. Garlanger labeled the differences as cumulative impacts of increase in average flow. It seems clear that the number of acres mined but not yet reclaimed in the Peace River watershed in the future will not exceed the levels measured in the early 1990s. A comparison of land uses in the year 2000, and projected land uses in the year 2025, based upon publicly available documents, would indicate that the acreage being utilized for active phosphate mining areas will be reduced by approximately 40,000 acres from 2000 to 2025. IMC's other evidence would indicate that the area captured by phosphate mining in the Peace River Basin is expected to increase from approximately 28,000 acres in 2000, to approximately 41,000 acres in 2010, before dropping to approximately 35,000 acres through 2020, and declining further to approximately 30,000 acres in 2025. In the Horse Creek sub-basin, IMC expects the area captured by phosphate mining to rise steadily from approximately 8,000 acres in 2000, to approximately 23,000 acres in 2010, before dropping to approximately 20,000 acres in 2015, and remaining at that level until after 2020, when it will decline again to approximately 15,000 acres in 2025. While called a "cumulative impacts" analysis, Dr. Garlanger's analysis actually compares flow impacts from mining during 1978-2002 with expected impacts during 2003-2027. It does not examine the cumulative impact of phosphate mining and reclamation beginning in 1978. As such, the analysis shows the effects of ongoing reclamation and a decline in "capture area" within the Peace River Basin. It also shows the effects of an increase in "capture area" in the Horse Creek sub-basin. According to Dr. Garlanger's analysis, it would not appear that future phosphate mining and reclamation activities would have an adverse impact on water quantity at any point in the Peace River basin. Similarly, the relatively minor flow increases predicted would not be anticipated to have any adverse water quality implications and, in particular, would not measurably affect the freshwater/salt water interface in Charlotte Harbor. By using a single "maximum capture rate" for all mining since 1978, Dr. Garlanger's analysis did not account for higher unit rates of runoff in the Lower Peace River Basin due to different soil conditions than in the Upper Peace River Basin. As more mining moves south, the actual "maximum capture rate" will increase, and more runoff will be lost due to capture per acre mined than Dr. Garlanger's analysis predicts. According to Mr. Davis the actual capture rate for future mining may well 50 percent greater, or even twice, the average capture rate assumed by Dr. Garlanger for purposes of his analysis. (T. 2149, 2192). As indicated, Dr. Garlanger's cumulative impacts analysis only addressed flow. It did not address the cumulative impacts from the loss of other wetland functions, fish and wildlife habitat functions. In addition, cumulative impacts from the loss of first-order streams might be significant. The evidence was that approximately 20 percent of the first-order streams in the Horse Creek sub-basin are in areas where phosphate mining activities were said to be expected from 2003-2027. Urban areas will increase by approximately 220,000 acres between 2000 and 2025. Dr. Garlanger also considered the potential impact of these and other types of development on stream flows. Rigorous analysis of this issue was not undertaken because residential, commercial and agricultural developments generally have a tendency to increase stream flow (although some agricultural developments might decrease stream flow somewhat). Rule 62C-16.0051 – Reclamation Requirements3 Soil Zone The proposed reclamation in the Modified CRP complies with the soil zone requirement in Rule 62C-16.0051(3) requiring good quality topsoil or other appropriate growing medium. Restoration Rule 62C-16.0051(4) requires that wetlands disturbed by mining operations be restored acre-for-acre, type-for-type. Rule 62C-16.0021(15) defines "restoration" to mean: "recontouring and revegetation of lands in a manner, consistent with the criteria and standards established pursuant to this chapter, which will return the type, nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." Acre-for-Acre, Type-for-Type For purposes of Rule 62C-16.16.0051(4), Florida Administrative Code, DEP relies upon Level II of the FLUCFCS system to determine whether wetlands are being replaced "acre- for-acre, type-for-type." See Manson Jenkins Final Order, Ruling on Exception V. It appears that, in Manson Jenkins, FLUCFCS Level II distinguished between herbaceous wetlands and forested wetlands to determine compliance with the type-for-type requirement of Rule 62C-16. In this case, IMC proposes to replace 478 acres of Altman Tract herbaceous marsh with 865 acres of herbaceous marsh after reclamation on the Tract. As previously found, there may actually be a little more herbaceous marsh on the Tract than IMC mapped (i.e., some of the erroneously mapped improved pasture). But it is clear that IMC is proposing more herbaceous marsh for reclamation than now exists. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase herbaceous marsh acreage on the total 46,533 acres covered by the Modified CRP. As for forested wetland, IMC proposes to reclaim with 70.5 Altman Tract acres versus 38 acres now on the Tract. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase forested wetland acreage on the total 46,533 acres covered by the Modified CRP. Under FLUCFCS Level II, each type of forested wetlands has its own code: wetland hardwood forests are code 610; wetland coniferous forests are code 620; and wetland mixed forests are code 630. Under code 620 (wetland coniferous forest), IMC does not plan to replace the half acre it mapped on the Altman Tract in its reclamation plans for the Altman Tract. However, as to the total 46,533 acres covered by the Modified CRP, 213 acres of wetland coniferous will be replaced by 394 acres post-reclamation. The 4.3 acres on the Altman Tract mapped by IMC as FLUCFCS 510 (Streams and Waterways) are not being replaced "acre- for-acre, type-for-type." Citing BOR 3.3.1.1, IMC and DEP take the position that replacement is not required because these are agricultural ditches which are less desirable wetland types than the herbaceous marshes that are to replace them. Actually, the so-called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. Some provide beneficial functions of first-order streams. Some provide fish habitat at times. In addition, BOR 3.3.1.1 does not apply to Rule 62C- 16.16.0051(4). IMC's and DEP's treatment of FLUCFCS Code 510 in the Modified CRP is confusing. In the review process, DEP asked for an explanation as to why IMC mapped 224 acres as code 510 but only proposed to reclaim 9 of them. In a response, IMC stated that there were 209 acres of FLUCFCS code 510, that "193 acres are manmade features which should not be counted on an acre for acre, type for type, due to these being agricultural ditches for drainage of crop/pastureland. The remaining 16 acres are acre for acre, type for type and mitigated for in the post reclamation plan as FLUCFCS 510 acreage." The Modified CRP indicates that, of the total 46,533 acres covered by it, 200 acres are FLUCFCS code 510 and that there will be 11 acres of FLUCFCS code 510 post-reclamation. The Modified CRP also includes a table of the 5,077 acres covered by it that are not yet disturbed. The preface to the table states: "However, some enhancement work to be conducted in the non disturbed land will result in changes in FLUCFCS acreage from pre-mining to post reclamation." The table indicates that 10 acres of these "non-disturbed lands" are FLUCFCS code 510 pre-mining and that there will be 10 acres of FLUCFCS code 510 post-reclamation. Due to the confusion, reasonable assurances were not given that "streams and waterways" will be replaced "acre-for-acre, type-for-type." The Modified CRP also makes reference to FLUCFCS code 560 ("slough waters"). No sloughs were mapped on the Altman Tract. The slough between the box culverts under SR 37 and the Central Marsh were mapped as freshwater marsh (FLUCFCS code 641). But the Modified CRP indicates that, of the total 46,533 acres covered by it, there were 12 acres of slough waters pre-mining and that none of them are to be replaced post-reclamation. The Modified CRP's table of "non-disturbed lands" does not include any FLUCFCS 560 slough waters. Notwithstanding the confusion, it seems clear that the slough-like area between the box culverts under SR 37 and the Central Marsh should not be eliminated. To do so would exacerbate the elimination of slough waters under the Modified CRP. (b) Nature and Function As indicated, the other part of the definition of "restoration" in Rule 62C-16.0021(15) speaks to returning "the nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." See also Section 378.207(1), Florida Statutes (requiring "return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining"; and Section 378.203(10), Florida Statutes (requiring restoration to "maintain or improve the water quality and function of the biological systems present at the site prior to mining"). In this case, IMC did not prove that its reclamation will meet these restoration requirements. Design The reclaimed wetlands at the Tract will comply with the general design requirements of wetlands set forth in Rule 16C-16.0051(5). Among other things, the proposed reclaimed wetlands have been designed to provide aquatic wetlands and wildlife habitat values, maintain downstream water quality by preventing erosion and providing nutrient uptake; and reclaimed water bodies are to incorporate a variety of emergent habitats, a balance of deep and shallow water, and fluctuating water levels. (T. Durbin at 1471, 1542-44). However, as previously found, post-reclamation water levels will be generally deeper, hydroperiods will be longer, and zonation will be reduced, such that the nature and functions of existing wetlands will not be maintained. Water Quality As required by Rule 16C-16.0051(6), applicable water quality standards will be met for waters leaving reclaimed wetlands on the Tract and wetland water quality on the Tract will support fish and other wildlife. Flooding and Drainage Patterns As required by Rule 16C-16.0051(7), all necessary steps have been taken to eliminate the risk of flooding on lands not owned by the applicant. In addition, general drainage patterns would be restored. Watershed boundaries will not be crossed, and post-reclamation topography would allow interconnectivity between at least some wetlands created on the Tract during at least some periods of rain. Revegetation Requirements The Draft Permit requires that reclaimed wetlands and uplands on the Tract comply with the revegetation provisions (including minimum cover requirements) as required by Rule 16C- 16.0051(9). (IMC Ex. 12, Sp. Cond. 14C). Mitigation Measures As required by Rule 16C-16.0051(10), the modified CRP identifies measures designed to offset fish and wildlife values lost as a result of mining operations. Special programs to restore, and/or reclaim particular habitats, especially for endangered and threatened species, have been identified. However, as previously found, reasonable assurances were not given that these measures will succeed in offsetting fish and wildlife values lost as a result of mining operation. Reclamation Schedules Reclamation is proposed to proceed in a fashion that will comply with the schedules contained in Rule 16C-16.0051(11). (IMC Ex. 12, Sp. Cond. 11).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DEP enter a final order denying IMC's applications to mine and reclaim the Altman Tract. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
Findings Of Fact On September 15, 1976, Manatee Energy Company submitted to the Department of Environmental Regulation, through the Manatee County Pollution Control Department, an application to construct an air pollution source in connection with a crude splitter to be built at Port Manatee, Manatee County, Florida. On October 15, 1976 the Department of Environmental Regulation requested additional information from the Manatee Energy Company concerning its application. The primary response of the Manatee Energy Company to this request for additional information was hand carried to the Department of Environmental Regulation on November 3, 1976, at which time a meeting was held between representatives of the Department of Environmental Regulation and the Manatee Energy Company to discuss whether the additional information satisfactorily responded to the request. On November 9, 1976, representatives of the Manatee Energy Company met with representatives of the Manatee County Pollution Control Department to discuss the additional information and the status of the application. The Department of Environmental Regulation considered the application complete and, in fact, all requested additional information was received by the Department of Environmental Regulation no later than November 22, 1976. By letter dated December 14, 1976, to the Department of Environmental Regulation, the Manatee County Pollution Control Department recommended approval of the permit sought by the Manatee Energy Company. On February 17, 1977, the Department of Environmental Regulation issued a Notice Of Intent To Issue Its Final Agency Order approving the permit application for construction of the air pollution source sought by the Manatee Energy Company. This Notice Of Intent contained the statement that the final agency order approving the application would be adopted and issued by the district manager unless an appropriate petition for hearing was filed on or before February 20, 1977, pursuant to the provisions of Section 120.57, Florida Statutes. On February 17, 1977, the Manatee Chapter of the Izaak Walton League filed a Petition And Request For Public Hearing And Other Relief. At the time the petition was filed on February 17, 1977, neither the Manatee Chapter of the Izaak Walton League nor its parent organization, the Izaak Walton League of America was a corporation not for profit organized and operating under the laws of the state of Florida. However, at the time the petition was filed on February 17, 1977, the parent organization, the Izaak Walton League of America was a corporation not for profit organized in a state other than Florida. The Manatee Chapter of the Izaak Walton League has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name. Further, the Izaak Walton League of America has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name. On May 18, 1977, the Manatee Chapter of the Izaak Walton League of America, Inc. filed its articles of incorporation, as a corporation not for profit, with the Florida Secretary of State. The Manatee Chapter of the Izaak Walton League is chartered by the Izaak Walton League of America. The Manatee Chapter is a sub unit of the national organization. Members of the Manatee Chapter do not join the Manatee Chapter, but rather, join the national organization, the Izaak Walton League of America, and then affiliate themselves with the local chapter. According to the president of the Manatee Chapter of the Izaak Walton League their charter from the national organization requires that before the local chapter takes any legal action it must inform the national organization for their approval. In this case, the Manatee Chapter of the Izaak Walton League did inform the national organization, the Izaak Walton League of America, and received their approval, before filing the petition which initiated this proceeding. At no time pertinent to this cause had the Manatee Chapter of the Izaak Walton League, or the national organization, the Izaak Walton League of America, filed with the Florida Secretary of State a duly authenticated copy of its charter or articles of incorporation, together with the requisite fee and received from the Secretary of State a permit to carry on in Florida the objects and purposes of its incorporation as required by Section 617.11, Florida Statutes. As of the date of this hearing, July 21, 1977, the Department of Environmental Regulation has neither approved nor denied the application for permit by the Manatee Energy Company. The Notice Of Intent To Issue by the Department of Environmental Regulation and the filing of the Petition And Request For Public Hearing And Other Relief by Petitioner, Manatee Chapter of the Izaak Walton League, occurred 87 days after the receipt by the Department of Environmental Regulation of the timely requested additional information in connection with the application.
Recommendation Therefore, it is hereby RECOMMENDED: That the application for a permit to construct an air pollution source by the Manatee Energy Company which is the subject of this proceeding be granted and issued forthwith with the provision that an operating permit will not issue until such time as the Port Manatee Port Authority has taken the necessary corrective steps to eliminate the present violation of the ambient air quality standard with regard to particulates. ENTERED this 10th day of January, 1978, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Judith S. Kavanaugh, Esquire 543 Tenth Street, West Bradenton, Florida 33505 Terry Cole, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Roger D. Schwenke, Esquire Post Office Box 3239 Tampa, Florida 33601
The Issue The issue is whether the Department of Environmental Protection's (Department's) proposed award of a contract to Intervenor, CDM Constructors, Inc. (CDM), is contrary to the Department's governing statutes, rules or policies, or the solicitation's specifications.
Findings Of Fact Based on all of the evidence, the following findings of fact are made: Background Piney Point is an abandoned fertilizer manufacturing plant adjacent to Port Manatee in Manatee County. In the fertilizer manufacturing process, phosphate rock is converted into soluble phosphorus by adding sulfuric acid to the phosphate rock to produce phosphoric acid. A by-product of this activity is phosphogypsum. For every ton of phosphoric acid produced, approximately five tons of phosphogypsum are produced. The phosphogypsum is stored in stacks like the ones at Piney Point. Federal and state regulations require that the phosphogypsum be managed in stack systems. (Stack systems are large impoundments containing contaminated water that has come into contact with the phosphogypsum.) This is accomplished by using process water to "slurry" the phosphogypsum to the stacks where the phosphogypsum settles out. The process water becomes extremely polluted as a result of the manufacturing activities and is typically very acidic. It contains heavy metals, such as arsenic, cadmium, chromium, and fluoride, in addition to high levels of nutrients, nitrogen, and total dissolved solids. It is also slightly radioactive. The process water is stored in impoundments surrounded by the phosphogypsum stacks, in cooling ponds, and in the seepage ditches around the stacks. The Piney Point site is located south of Tampa, approximately one mile inland from Bishops Harbor, which is a portion of Tampa Bay. The site encompasses a total of approximately six hundred acres. There are two phosphogypsum stacks located at Piney Point; each of these is divided into two compartments or ponds. Today, the old gypsum stack rises to a height of eighty feet. The site previously held around 1.4 billion gallons of process water with 800 million gallons stored in the various ponds and 600 million gallons stored in the pores of the gypsum stacks as pore water. The site is currently estimated to have 500 to 550 million gallons of process water of which about 350 million gallons is pore water. All of this water must be treated and removed in order to close and remediate the site. To close one of these phosphogypsum stack systems, all of the water must be removed from the ponds. The surface is allowed to dry and is then graded. A polyethylene liner is placed over the surface and than a soil cover is placed on top of the liner. The liner prevents any additional rainfall from infiltrating into the gypsum stack and creating additional process water. The pore water underneath the liner is then allowed to drain from the stack and is collected in seepage ditches, where the water will ultimately be treated. A thick layer of grass is grown on the steep slopes of the gypsum stacks to help prevent infiltration of rainwater back into the stacks. The ultimate goal is to convert this site into a freshwater reservoir for the residents of Manatee County. Until early 2001, Piney Point Phosphates, Inc., which was a subsidiary of Mulberry Phosphate Company (Mulberry), owned and operated a fertilizer manufacturing complex at Piney Point. (Mulberry also operated another fertilizer manufacturing complex in Mulberry, Florida). In February 2001, Mulberry filed a petition for protection from creditors in the United States Bankruptcy Court in Tampa, Florida. At the same time, Mulberry notified the Department that it did not have the resources to maintain the site. (The Department was also advised by Mulberry that it did not have the resources to maintain the stack system at the Mulberry site.) Because there existed the potential for release of the contaminated waters from Piney Point into Tampa Bay, the Department immediately assumed financial responsibility for Piney Point and in May 2001, a state court appointed a Receiver for Piney Point to take "all reasonable steps and action to preserve the Property's environmental integrity and its compliance with environmental regulations." To execute these duties, the Receiver entered into a contract with the Department. Pursuant to that contract, it retained the services of Ardaman, an international engineering consulting firm in Orlando, Florida, as its engineer of record to design a plan to close Piney Point and to ensure that the plan was properly implemented. At about the same time, the Receiver contracted with IT Corporation, the predecessor to Shaw, to begin some of the site closure work on an emergency basis. Since that time, the Department has spent $63 million at Piney Point, with Shaw receiving a majority of that amount. Based on the Department’s experience at the Mulberry site, it believed that it could realize a significant savings to the State through the Invitation to Negotiate (ITN) process and the use of a lump sum contract, rather than continuing to contract out the work for Piney Point on a time and materials basis. Further, the Department's Inspector General had recommended a lump sum contract as an incentive to the contractor selected to conduct the closure work. The ITN Under Section 403.4154(3)(a), Florida Statutes (2004),1 "[t]he department may take action to abate or substantially reduce any imminent hazard caused by the physical condition, maintenance, operation, or closure of a phosphogypsum stack system." Pursuant to this provision, on July 16, 2004, the Department issued ITN No. 2005002C (the ITN) entitled "Closure of the Piney Point Phosphogypsum Stack System." The contract called for a contractor to provide services at the Piney Point site in three primary areas: continued operation and maintenance of the site; water consumption; and closure of the phosphogypsum stack system. Water consumption consists of treating the process water and pore water and removing it from the site by evaporation, irrigation, discharge, or other methods. Closure of the stacks includes draining water from the stacks, grading the banks, and installing liners, clean soil, and sod. The contract is estimated to be worth approximately $51.2 million to the successful vendor. The contract was intended to replace the Receiver's existing contract with Shaw, although Shaw was free to compete for the new contract. A number of individuals were involved with developing the ITN. First, Gwenn D. Godfrey, who is the Department's Procurement Administrator, assisted with the original ITN. Also, Phil Coram, who is the Department's Chief of the Bureau of Mine Reclamation, was heavily involved with the ITN and assumed a major role on technical issues such as operation and maintenance as well as water management planning. Although the Department does not normally use private consultants in the procurement process, due to the complex technical issues involved, it retained Ardaman to assist with the procurement process. Ardaman, who was then serving as engineer of record on the project, does approximately 90 to 95 percent of all work performed in Florida in the area of phosphogypsum stack systems and has special expertise in that area. (As noted above, Ardaman designed the complex closure plan for the facility.) One of its employees, Dr. Nadim Fuleihan, a senior vice president and principal engineer, has served as the chief engineer for the Piney Point project since 2001 and has worked closely with Mr. Coram, who has been the Department's coordinator on the project since 2002. According to Mr. Coram, Dr. Fuleihan "knew more about that site, especially the closure aspects, . . . than anyone." This observation was undisputed. For that reason, Dr. Fuleihan was requested to assist in the procurement process. Mr. Coram was asked by Department management to identify individuals to serve as evaluators for the ITN process. Besides Dr. Fuleihan, management wanted the evaluators to consist of Department employees within the Bureau of Mine Reclamation, the Division of Waste Management, the Office of General Counsel, and representatives from other agencies that had been involved with Piney Point. The seven ITN evaluators consisted of Mr. Coram; Dr. Fuleihan; Sam Zamani, Administrator for the Department's Phosphate Management Program; John Wright, a professional engineer in the Department's Division of Waste Management; Jon Alden, a Department attorney who has represented the Department in the Mulberry bankruptcy case; Robert Brown, a Senior Environmental Administrator for Manatee County; and Richard Eckenrod, Executive Director of the Tampa Bay Estuary Program (TBEP). Before the evaluation process began, the Department required all members of the evaluation team to sign a certification that if "at any time during [their] participation on the contractor selection committee, that a potential conflict of interest exists," they agreed to notify the Department's Procurement Section of the circumstances surrounding the potential conflict of interest. By doing so, the Department complied with Section 287.057(20), Florida Statutes, which requires that if the procurement costs more than $25,000.00, "the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected." A requirement that the certification form be executed by each team member is also found in the solicitation instructions. Significantly, the certification form imposed a continuing obligation on the evaluators to notify the Department should any "potential conflict of interest arise." Prior to submitting responses, three potential vendors, Shaw, Compass, and CDM, contacted Dr. Fuleihan and asked him to participate on their respective teams in the ITN process. Dr. Fuleihan declined to work with any of them on an exclusive basis. Tetra Tech, Inc., which is Ardaman's parent company, also considered preparing a response to the ITN but Dr. Fuleihan advised it not to do so since Ardaman's status as engineer of record could raise a conflict of interest. On September 10, 2004, CDM, Compass, Shaw, and Coburn Construction (Coburn) submitted replies to the ITN. The Department subsequently deemed the reply by Coburn to be non- responsive for its failure to comply with the requirements of the ITN. Coburn did not challenge this determination. The other proposals were independently reviewed, scored, and ranked. The results were given to Mr. Coram, who computed an average rank for each of the firms. The final average rankings were very close with Shaw being ranked first, followed by Compass and CDM, who were tied. After the initial replies were filed, Mr. Eckenrod became concerned that he had a potential conflict of interest with Craig A. Kovach, President of QuietEarth Consultants, Inc., which was identified as a CDM subcontractor and team member. Mr. Kovach's wife served on the TBEP Board of Directors and had hiring and firing authority over Mr. Eckenrod. Accordingly, Mr. Eckenrod emailed the Department's Office of General Counsel for a determination of whether a conflict existed. Under the Department's Code of Ethics, which is also known as Administrative Directive DEP 202 (DEP 202), "[e]mployees should avoid any conduct . . . which might undermine the public trust, whether that conduct is unethical or may give the appearance of ethical impropriety." See Compass Exhibit 32, DEP 202, paragraph 7.a. In addition, another document known as DEP 315 establishes Department policy for the purchase of contractual and professional services. See Compass Exhibit 61. Paragraph 26 of DEP 315 adopts the standards of conduct for public officers and employees which are codified in Section 112.313(3) and (7)(a), Florida Statutes. While not specifically applicable to Mr. Eckenrod's situation, among other things, that paragraph prohibits Department employees from having an "employment or contractual relationship with any business entity . . . which is . . . doing business with" the Department. Teresa L. Mussetto, a Department attorney who then served as a Department Ethics Officer on behalf of the General Counsel, issued an opinion on September 29, 2004, stating in part that even though Mr. and Mrs. Kovach had never sought to influence Mr. Eckenrod, his professional association with a member of the CDM team "may be perceived as a conflict of interest," and that if the contract were ultimately awarded to CDM, the transaction might "reasonably give rise to the 'appearance of impropriety.'" See Shaw Exhibit 21. Ms. Mussetto also determined that even though Mr. Eckenrod was not a Department employee, he acted as an integral part of the procurement team and that DEP 202 was applicable to him. (It follows that DEP 315 would likewise apply.) Because DEP 202 requires that every aspect of the procurement process be conducted in a manner which would not undermine the public trust or lead a reasonable person to question its fairness and impartiality, Mr. Eckenrod's potential conflict with CDM's subcontractor was a sufficient basis for his removal from the evaluation team, and he did not participate further in the process. On October 12, 2004, the Department gave notice of its rankings of the vendors and informed them that it intended to exercise its right to conduct oral discussions with all three vendors. The firms would then be asked to submit Best and Final Offers (BAFOs) which would be scored anew. This was consistent with the ITN, which provided that the Department "reserves the right to short list respondents deemed to be in the competitive range to conduct oral discussions prior to the final determination of contract award." The decision to conduct oral discussions was made by senior management in the Department at the time scores were posted for the replies to the ITN. The Secretary of the Department, along with other senior management, determined oral discussions would be conducted with all three vendors to assist in formulating the BAFO Instructions (Instructions) and then the Department would proceed to score the BAFOs. No one has challenged this process. Development of the BAFO Instructions Before drafting the Instructions, the Secretary of the Department met with Earl Black, a Department of Revenue attorney, and Barbara F. Phillips, a Purchasing Analyst with the same agency. Both individuals had substantial experience with procurements and were asked to participate in the BAFO process. They agreed and were added to the evaluation team. As finally formed, the team consisted of two attorneys, four engineers, and two persons with significant procurement experience. Six of the eight had considerable prior knowledge of the Piney Point site. In an effort to refine the Instructions, CDM, Compass, and Shaw each made oral presentations to the Department's evaluators and other Department staff on November 3, 2004. All of the evaluators, including Mr. Black and Ms. Phillips, attended the oral presentation. As part of this process, the vendors were able to ask questions of the evaluators, and the evaluators were able to ask questions of the vendors. Following the oral discussions, another round of discussions was held with each vendor. These discussions were referred to as "negotiation sessions." The purpose of these discussions was to better understand the cost elements and facts of each vendor’s initial proposal in order to develop the Instructions. Mr. Alden, Dr. Fuleihan, Mr. Black, and Ms. Phillips conducted these discussions with each vendor. The Instructions were drafted by a group of individuals including Dr. Fuleihan, Mr. Black, Ms. Phillips, Ms. Godfrey, Mr. Alden, and Mr. Coram. Dr. Fuleihan gave input on the sections relating to technical issues primarily in the scope of work, which included the process water consumption section. He was also involved in revising the pricing summary and developing the evaluation criteria. Neither Shaw nor Compass challenged any part of the Instructions. After the Instructions were completed, but before the BAFOs were submitted by the three vendors, the Department again required each evaluator to complete a second conflict of interest certification. The form was similar to the earlier certification in the procurement process and required that the members certify that they had "no conflict of interest" with the "entities being considered for the contract award." Like the earlier form, it imposed a continuing obligation on the evaluators to notify the Department should any potential conflict of interest arise. The form listed CDM, Compass, and Shaw as the relevant entities. Each member, including Dr. Fuleihan, executed the certification. At that time, Dr. Fuleihan was not aware of any projects that Ardaman was doing for Shaw or Compass, and he did not believe that Ardaman was doing any work for CDM because of a past disagreement with one of the CDM entities that resulted in no work between the companies for many years. Section 1.19 of the Instructions provides that the Department reserves the right to waive minor informalities or irregularities in the offers received where such are merely a matter of form and not substance and the correction of which are not prejudicial to other vendors. Evaluation of the BAFOs On November 15, 2004, the Department issued the Instructions, which required that responses be filed by the three vendors no later than Wednesday, December 1, 2004. The Instructions also informed the vendors that negotiations with the top-ranked vendor would begin immediately after the posting of the scoring results. CDM, Compass, and Shaw timely submitted their BAFOs on December 1, 2004. CDM's response indicated that it proposed to use a specific water treatment process relying on The Mosaic Company (Mosaic) as its subcontractor. This company was formed when the phosphate operations of the Cargill Companies and IMC Global, Inc. were combined in October 2004, or shortly before the BAFOs were filed. The evaluators located in Tallahassee were individually given the responses submitted by CDM, Compass, and Shaw on Thursday, December 2, 2004. For those evaluators located outside of Tallahassee, the responses were given on Friday, December 3, 2004. Pursuant to a specific set of instructions provided by the Department, each evaluator, acting independently, then individually ranked the BAFO responses. In order to determine the responsiveness of the BAFOs, Ms. Godfrey used a checklist to review the individual submittals and found that all three were complete. Also, Dr. Fuleihan, who served as the subject matter expert, reviewed each proposal to ensure that the qualifications of the persons identified in the responses met the minimum qualifications listed in the Instructions. He determined that all three vendors met the minimum qualifications. Therefore, the Department considered all three vendors responsive to the Instructions and qualified to perform the work. (If an evaluator considered a particular item in the response to be incomplete or defective, the evaluator could reflect that by assigning a lower score to that response.) The BAFO Scoring Process For scoring purposes, each BAFO response was divided into approximately fifteen identified subcategories. A one-to- five scale (with five being the highest score) was used to evaluate each subcategory of the vendor’s response. The raw scores for a given subcategory would be multiplied by a weight factor that corresponded to that subcategory to arrive at a weighted score for each subcategory. To obtain a total score for each vendor, the weighted scores for each subcategory would then be added together. The total weighted scores could range between 0 and 220. Each vendor was then assigned a ranking based on its weighted total score. The vendor with the highest score received a rank of one, the second highest score received a rank of two, and the third highest score received a rank of three. If two or more vendors had identical weighted total scores the ranks were added together and divided by two. (For example, if Vendor A received a 175 and Vendors B and C each received a 170, the vendors would be ranked as follows: Vendor A - 1.0, Vendor B - 2.5, and Vendor C - 2.5.) After all the scores had been submitted, the ranks of each vendor were averaged to determine the best proposal for the State. Average ranks were used in order to normalize the evaluations so that an especially generous or especially hard grader would not skew the outcome. Each of the eight evaluators conducted an individual, objective, and impartial review of the three responses to the Instructions. They all spent four to five days, including a weekend, reviewing each of the responses. (There is some confusion regarding the actual amount of time that Mr. Zamani spent reviewing the BAFOs. Documents offered by Shaw reflect that he received the BAFOs on December 3 and returned his rankings the following day, December 4. Testimony offered by the Department reflects that he spent several days reviewing the filings. Even if Shaw's time frame is correct, there is no evidence that Mr. Zamani evaluated the BAFOs in an improper or arbitrary manner.) The evaluators did not have any discussions during the evaluation process about their evaluations. Outside one phone call from Mr. Brown to Mr. Coram to clarify what the vendors had received with the Instructions, the evaluators had no contact with one another. Mr. Alden ranked CDM first with a score of 177, Compass second with a score of 174, and Shaw third with a score of 172. Mr. Black ranked CDM first with a score of 140, Compass second with a score of 137 and Shaw third with a score of 106. Mr. Brown ranked CDM first with a score of 205, Compass second with a score of 183 and Shaw third with a score of 182. Mr. Coram ranked Compass first with a score of 180, Shaw second with a score of 175 and CDM third with a score of 170. Dr. Fuleihan ranked CDM first with a score of 192, while Compass and Shaw tied with scores of 189. Ms. Phillips originally submitted her evaluations with Compass ranked first with a score of 144, and Shaw and CDM tied with a score of 141. Due to an error when she transposed her scores from her notes to her score sheet, she corrected her evaluations at the hearing. With the corrected scores Compass was still ranked first with a score of 144, but CDM was now second with a score of 143, and Shaw third with a score of 139. However, this correction did not change the final results of the evaluation process. Mr. Wright ranked Shaw first with a score of 183, Compass second with a score of 181, and CDM third with a score of 166. Mr. Zamani ranked CDM first with a score of 218, Compass second with a score of 210, and Shaw third with a score of 191. After the evaluators submitted their score sheets, the ranks were added up and averaged to obtain a final ranking for each vendor. The final ranking was as follows: CDM was ranked first with an average rank of 1.688, Compass second with an average rank of 1.813, and Shaw third with an average rank of 2.500. (If Dr. Fuleihan's scores were removed from the final tabulation, as requested by Compass, then Compass would be the highest ranked vendor.) On December 7, 2004, the Department electronically posted a recommended award to CDM as the best- ranked vendor. As predetermined in the Instructions, the announcement also stated that negotiations would immediately begin with CDM, and if those negotiations failed, it would then negotiate with Compass, the second ranked vendor, and if those failed, with Shaw, who was ranked last. Compass and Shaw timely filed their Notices of Protest on December 9, 2004. On December 20, 2004, they timely filed their Formal Written Protests. Both Petitioners have contended that the process was flawed because Mosaic (a listed subcontractor on CDM's proposal) was a client of Ardaman; that Dr. Fuleihan had a conflict of interest which should have been disclosed; and he should have recused himself from the process. Shaw also contends (for the first time in its Proposed Recommended Order) that at least two of the evaluators (Mr. Black and Ms. Phillips) had little, if any, knowledge or experience concerning the scientific and technical requirements sought in the ITN and Instructions and were not qualified to evaluate the responses. It also alleged that a Sunshine Law violation may have occurred; that Mr. Zamani did not have a sufficient amount of time to evaluate the proposals;2 and that the proposals of CDM and Compass were non-responsive in various respects. The other contentions raised in Shaw's formal protest and the Pre-Hearing Stipulation have not been addressed in its Proposed Recommended Order and are deemed to have been abandoned. The remaining contentions are discussed below. Sunshine Law Violation There is no evidence that the evaluators met in closed meetings. Rather than scoring as a group, each of the evaluators scored the BAFOs separately and independently. Therefore, there was no meeting of the evaluators that was required to be conducted in the sunshine. No vendor attended the oral discussion meetings between another vendor and the evaluation team. However, there is no evidence that any of the vendors asked to attend those meetings or that the Department denied the vendors the ability to attend. Qualifications of the Evaluators There was no allegation in the Pre-Hearing Stipulation that any of the evaluators were unqualified. Although Shaw elicited testimony on that issue at hearing, especially regarding the qualifications of Mr. Black and Ms. Phillips, the issue was not timely raised. Even if it was, the evidence does not show that those two individuals, or any other member of the team, were not qualified. Mr. Black and Ms. Phillips were chosen for the team because of their extensive experience in state procurement, and not for their technical or scientific background. Mr. Black, who has been an attorney for thirty-two years, is an Assistant General Counsel and Section Chief for the Department of Revenue (DOR). In this position, he has handled numerous procurement cases for that agency. His duties include handling procurement matters, leasing matters and administrative functions for DOR. Prior to assuming his position at DOR, he worked for fourteen years for the Department of Management Services (DMS) as its primary attorney responsible for contracts dealing with environmental issues. Ms. Phillips is a Purchasing Analyst for DOR with over 28 years of procurement experience with the vast majority involving solicitation evaluations. Her responsibilities involve ensuring proper administration of complex contracts and specifications, Invitations to Bid (ITB), Requests for Proposals (RFP), ITNs, and advertisements. She develops guidelines and procedures to facilitate the ITB/RFP/ITN process and has evaluated procurement policies and procedures for DOR. Conflict of Interest Issue In its response to the ITN, CDM identified IMC Global, Inc., as a subcontractor for water treatment. After CDM's initial reply was submitted, IMC Global, Inc. and a subsidiary of Cargill merged to form a new company known as The Mosaic Company. To conform its BAFO with this corporate merger, CDM changed its response to reflect the new company as a subcontractor for water treatment and consumption. Because Ardaman had a contractual relationship with Mosaic at the time the BAFOs were submitted, Petitioners have contended that Dr. Fuleihan had a conflict of interest, that he should have disclosed this fact, and that he should have withdrawn from the ITN process. They also contend that the Department dismissed another non-employee evaluator, Richard Eckenrod, when it learned that he had a potential conflict of interest and that Dr. Fuleihan's circumstances are no different. When Mr. Coram suggested that Dr. Fuleihan participate as an evaluator, he knew that it would be likely that Ardaman would have contractual relationships with most or all of the phosphate companies over time. He expected Ardaman to continue to have such contractual relationships in the future simply because Ardaman does excellent work. However, he did not hesitate to recommend Dr. Fuleihan because he had worked with him on a daily basis for over the past three years and had known him for at least ten years. Mr. Coram testified that he always found Dr. Fuleihan's actions to be ethical and in the best interests of the State. Dr. Ardaman is a Senior Vice President of Ardaman, a member of its management team, and head of the firm's corporate engineering group. He receives a salary, bonus, and stock options; the bonus and stock options are tied to performance and profitability of Ardaman and its parent company, Tetra Tech, Inc. IMC, The Cargill Companies, and Mosaic have been clients of Ardaman. This is not surprising, however, because Ardaman's clients include "the whole phosphate industry." Indeed, Ardaman does approximately 90 to 95 percent of the engineering work performed in Florida involving phosphogypsum stack systems, a fact well known by virtually all of the players in the phosphate industry, including Petitioners. Over the last five years, Ardaman has represented such clients as Agrico Chemical Company, CF Industries, Inc., the United States Army Corps of Engineers, the Florida Department of Community Affairs, PCS Phosphate, Comanco Environmental Corporation, Moretrench Environmental Services, Inc., Shaw Environmental, Inc. (and its predecessor, IT Corporation), PENN PRO, Inc., and the Florida Department of Transportation. The Department itself is among Ardaman's most significant clients. When the ITN was first posted it was well known that Dr. Fuleihan knew all of the principals of CDM, Compass, and Shaw, including those who testified at the final hearing. In fact, Dr. Fuleihan has worked on numerous occasions with most, if not all, of the subcontractors and the consultants listed by all three vendors in their BAFOs. All three vendors also knew that Dr. Fuleihan had assisted with the ITN and BAFO processes and was serving as an evaluator for the BAFOs. Prior to the issuance of the Instructions, Dr. Fuleihan was present during the oral discussions along with the other evaluators. He also led the "negotiation sessions" where the Department was gathering information to develop the Instructions. Only after the Department proposed to award the contract to CDM on December 7, 2004, did Petitioners challenge Dr. Fuleihan's participation in the solicitation process and express a fear that the process might be tainted. Mosaic is considered an important client for Ardaman. However, there was no evidence that Ardaman would stand to gain anything from Mosaic by it serving as a subcontractor. Under the terms of the ITN, Ardaman will continue working for the Department at Piney Point as the engineer of record regardless of which vendor ultimately contracts with the Department. Ardaman did not receive any additional work from IMC Global, Inc., when it was conducting work at Piney Point in 2003, and Ardaman does not expect to receive any additional work if Mosaic returns to the site to assist with the operation of water treatment equipment. Although it is characterized as an important team member, Mosaic at most will have a limited role on CDM's team and would receive very little financial benefit from this work. Specifically, Mosaic will receive a nominal fee for allowing CDM to use the patents on its reverse osmosis equipment and roughly $50,000.00 for technical support in years three through five of the project, or a total of less than one-tenth of one percent of the estimated $52 million contract. (There is no guarantee that Mosaic will even be used by CDM since the vendor has the right to substitute subcontractors during the post-award negotiation process. In fact, CDM approached Mosaic because, at that time, Dr. Vaughn Astley worked for Mosaic, and CDM wanted his expertise and experience as part of CDM's team. Dr. Astley subsequently retired from Mosaic, as planned.) There is no evidence that, as a result of Mosaic being retained as a subcontractor for CDM, Ardaman or Dr. Fuleihan would be given extra business over and above what they already provide. There is also no evidence that as a result of CDM's being awarded the contract that Dr. Fuleihan would have his salary increased, obtain some sort of bonus, increase his stock options, or be enriched in any way. There is no evidence that Dr. Fuleihan attempted to influence the BAFO process to the advantage of any particular vendor. There is no evidence that he favored one vendor over another when he assisted in the preparation of the Instructions, determined whether the responses to the Instructions satisfied the minimum qualifications, and reviewed the BAFOs. To the contrary, the evidence supports a finding that Dr. Fuleihan scored and ranked the individual BAFOs in a fair and objective manner. Notwithstanding the lack of any evidence to show that Dr. Fuliehan exhibited bias or favoritism during the solicitation process, the facts surrounding the removal of Mr. Eckenrod are essentially the same as those of Dr. Fuleihan. In the case of Mr. Eckenrod, a non-employee, he alerted the Department that he feared that there might be an appearance of impropriety due to the fact that one of the individuals listed in CDM's proposal and his wife held positions on boards of the organization where he worked. Because the boards had the ability to hire or fire him, and determine the program's budget, Mr. Eckenrod was under the impression that this relationship might be perceived as potentially influencing his evaluation of the proposals. Given this impression, it was determined that a reasonable person might come to the same conclusion and therefore Mr. Eckenrod was excused from service. In the case of Dr. Fuleihan, also a non-employee, he had a professional relationship with a subcontractor (Mosaic), which relationship might reasonably give rise to an appearance of ethical impropriety in the event the contract was ultimately awarded to CDM. Therefore, even though there is no evidence that Dr. Fuleihan acted improperly in evaluating the proposals, a reasonable person might question his perceived impartiality. Under the precedent established in Mr. Eckenrod's case, DEP 202 and DEP 315 apply to Dr. Fuleihan's conduct, and he is obligated "to avoid any conduct . . . which might undermine the public trust . . . or give the appearance of ethical impropriety," and to not have a "contractual relationship with any business entity . . . doing business with" the Department. Given these standards, at a minimum, disclosure of this conflict was necessary as soon as the BAFOs were filed. By failing to make such a disclosure, the requirements in Section 287.057(20), Florida Statutes, the corresponding Instructions, and DEP 202 and 315 were contravened. The Department's contention that DEP 202 and DEP 315 do not apply to non-employees has been rejected, especially since the Department applied the same provisions to Mr. Eckenrod. During the course of discovery in this case (and after the solicitation process was over), Dr. Fuleihan learned that Ardaman does have one small contract (valued at $57,000) with CDM's parent company, Camp, Dresser & McKee (located in St. Louis, Missouri), that was entered into in April 2004. That contract calls for Ardaman to serve as a specialty consultant/ subcontractor to Monsanto Company (Monsanto) in providing waste disposal services for Monsanto's elemental phosphorus plant located in Idaho. When Dr. Fuleihan reviewed the BAFOs, he was unaware of this contract. He acknowledged, however, that had he known, he would have disclosed this fact to the Department. Even so, it is fair to infer that a reasonable search of Ardaman's records prior to the commencement of the process would have revealed this conflict, and the Department's Ethics Officer could have then made a determination as to whether Dr. Fuleihan could serve as a team member. Dr. Fuleihan signed two conflict of interest forms certifying that he had no conflict. He did not disclose any conflict with Mosaic because he did not believe that the form applied to subcontractors (as opposed to prime contractors), and because his firm's relationship with a potential subcontractor would not impede his ability to carry out his responsibilities in evaluating the proposals. (If Mosaic had been a prime contractor, Dr. Fuleihan acknowledged that he would have recused himself from the process.) Other Department witnesses (Godfrey and Coram) conceded, however, that the conflict of interest form applies to subcontractors as well as the prime contractor, and that if a conflict with a subcontractor arose, it should be disclosed to the Department. In summary, while there is no evidence that Ardaman's professional relationship with both a prime contractor and a subcontractor caused the evaluator to exhibit bias or favoritism towards any particular vendor, the relationships give rise to an appearance of ethical impropriety so that a reasonable person might question the impartiality of Dr. Fuleihan. By not having those relationships disclosed, the Department's governing statutes, policies, and Instructions were contravened. g. Were the CDM and Compass Proposals Responsive? Shaw also contends that there were "many areas" in which the proposals made by CDM and Compass did not materially comply with the Instructions, and that they should be considered non-responsive. Although Shaw's Formal Written Protest identified a wide range of purported deficiencies, only those items which are discussed in Shaw's Proposed Recommended Order are addressed here. Shaw first contends that even though the vendors were required by the Instructions to demonstrate the reliability of their chosen methods of water treatment, Compass elected to treat half of all water it would treat through an unproven technology that was not demonstrated to be reliable. Compass proposed a water treatment and consumption method consisting of double-liming and air stripping or aeration, followed by reverse osmosis. (Double-liming is a chemical treatment process involving the addition of lime to process water, while reverse osmosis is a physical treatment where process water is forced through a semi-permeable membrane at high pressure to separate the clean and contaminated water.) This was consistent with the Instructions, which specifically allowed a vendor to use double-lime, air-stripping, and reverse osmosis for water treatment. See Joint Exhibit 4, Attachment 3 at pages 20-21. There is no requirement in Attachment 3 that vendors use "proven technology" or demonstrate the reliability and viability of their proposed water treatment methods. There is no credible evidence in the record that the water treatment method proposed by Compass would not work. Shaw also alleged that Compass failed to adequately bid utility services, because on line A2 of its BAFO, Compass bid only $36,200.00 for all five years of electric utility services. In its proposal, Compass also included an assumed prevailing rate for power of $100,922.00 per month. Although only $36,200.00 is shown on line A2, Compass spread the rest of the utility costs (approximately $2.3 million) throughout the lines in Section B of Attachment 4. While this amount was lower than the other vendors, the Department believed that Compass' overall operation and maintenance expenses were reasonable, and if any mistake had been made by Compass by understating the power cost, it was to Compass' detriment and would not adversely affect the interests of the State. Shaw also argues that Compass submitted a drawing that included reinforced geotextile but omitted the cost for that item in that portion of its BAFO entitled "clarifications." (Geotextiles allow for drainage of fluids and provide a basis for bridging over soft, unstable materials). Compass indicated in the clarifications section of its BAFO that "reinforced geotextile would be (as needed). The cost for this reinforced geotextile is not included." Under the terms of the Instructions, there was no requirement that a vendor estimate quantities that are not listed on the Pricing Summary Sheet, so long as it submits a fixed price bid. Here, the Pricing Summary Sheet in the Instructions does not have a line for the "as needed" geotextiles, and Compass submitted a fixed price bid. Therefore, the omission of the cost for that item did not render the BAFO non-responsive. Finally, Shaw has alleged that in its BAFO, Compass limited its exposure for the cost of normal repairs and replacements of pumps and piping and was therefore non- responsive. This argument is based on the fact that Compass included $1.1 million in its cost estimate for normal repairs and replacement of pumps and piping. Shaw asserts, however, that because the plant is very old, the contractor will have to take responsibility for failing equipment in order to keep the plant running, and Compass has essentially capped its replacement costs for transformers, switch gears, and other necessary equipment. Shaw did not present evidence that Compass had actually capped its pump maintenance costs or that the amount shown was inadequate. In fact, Shaw's estimated pump maintenance was between $660,000.00 and $900,000.00, or less than the amount proposed by Compass. Even if the amount shown was underestimated, the Department has made it clear that it wanted a lump sum contract and would hold the vendors to the price stated in the BAFOs. (Like the other vendors, Compass submitted a fixed price bid.) Shaw next contends that CDM's proposal was non- responsive in the areas of spray evaporation, the closure construction schedule, water balance, and spray irrigation. These items will be discussed separately below. Shaw first asserts that CDM overestimated the amount of process water it can treat with spray equipment during the first two years of the contract since the spray equipment CDM proposes to use will not be available until the fifth month of the first year of the contract. During the first two years of the contract, CDM proposes to dispose of 175 million gallons of process water through spray evaporation, which involves spraying water into the air to form a mist of small droplets and enhancing the natural evaporation through various techniques. In doing so, CDM intends to use a new spray system developed by CF Industries, which has achieved a rate of 200 million gallons per year, or twice as much as the amount CDM proposes over a two year period. Therefore, even if the equipment can only be used for twenty months during the first two years, it is reasonable to assume that CDM can evaporate 175 million gallons of process water during the first two years, as projected in its BAFO. Shaw also points out that the Instructions require each vendor to supply a closure schedule including eight "milestones" that must be completed within certain time frames. The eighth milestone is the closure and placement of grass on all lined reservoir slopes at least one year prior to the end of the contract. See Joint Exhibit 4, Attachment 3, page 4, § IV. While it concedes that CDM included a closure schedule for the site, Shaw asserts that CDM failed to indicate when, if ever, it would place grass-protected soil cover on all lined reservoir slopes. While the Department acknowledged that CDM's BAFO was not as detailed as those of the other two vendors, it points out there is "a lot of flexibility in the BAFO," and that "the covers were not critical for the closure schedule." Because CDM clearly intends to place the soil cover on the lined areas in conformance with the closure schedule, the omission was not material and does not render the BAFO non-responsive. Shaw next contends that even though the Instructions require that a vendor prepare an independent water balance, it is not apparent in the BAFO whether CDM prepared one. See Joint Exhibit 4, page 14, § B. (A water balance is a professional estimate of the volume of water on site, coupled with a projection of how it will fluctuate over time considering rainfall and groundwater inputs, surface and spray system evaporation, groundwater seepage, and other factors.) The Instructions required that CDM independently estimate the water balance for the five-year contract period. Nothing in the Instructions, though, requires that the actual calculation or spreadsheets that support the estimated water balance be shown. With the assistance of its consultants, CDM estimated the total quantity of process water as slightly in excess of one billion gallons, which it rounded off to one billion. This amount was responsive to the Instructions and was similar to the amounts estimated by Shaw and Compass. Accordingly, the estimate by CDM was responsive to the Instructions. Finally, Shaw argues that while "CDM also mentioned the use of spray irrigation," CDM "did not estimate any volume of water to be treated with this method." The contention has been considered and found to be without merit. In summary, the BAFOs submitted by CDM and Compass conformed in all material respects to the solicitation. To the extent that there were any minor deviations, they did not give Compass or CDM an advantage or benefit not enjoyed by Shaw, and under Section 1.19 of the Instructions they could be waived by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that its proposed award of the contract to CDM Constructors, Inc., which was based upon a review, grading, and ranking of the vendors by an evaluation team that included Dr. Fuleihan, is contrary to its governing statutes, policies, and specifications. DONE AND ENTERED this 21st day of March, 2005, 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 21st day of March, 2005.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether the Department should grant a permit to IMCF to mine and ultimately reclaim 145 acres of wetlands located primarily in Section 14, Township 31S, Range 23E, Polk County, Florida ("Section 14 Area") on the western edge of a larger wetlands system known as "Hookers Prairie."
Findings Of Fact Background and Procedural History On July 9, 1987, IMCF filed an application with the Department for a permit to mine phosphate rock from and then reclaim the Section 14 Area. The Section 14 Area is owned by IMCF. On December 2, 1987, in response to a determination of incompleteness issued by the Department, IMCF supplied additional information which supplemented and modified the original application. The application as augmented and modified was determined to be complete by the Department on December 7, 1987. Department representatives carried out onsite inspections of the Section 14 Area on September 22 and October 9, 14, and 19, 1987, and issued a written permit application appraisal. Based upon the information contained in the application and on the site visits, the Department determined to issue the requested permit to IMCF subject to certain draft permit conditions. The Department directed IMCF to publish notice of the Department's intent to issue the permit. The Department's notice of intent to issue was published in the Lakeland Ledger, a newspaper of general circulation in the location of the Section 14 Area on March 15, 1988. Petitioners objected to the Department's proposed issuance of the permit by filing their Petition to Intervene and Request for Formal Hearing with the Department on April 7, 1988. Petitioners have standing to intervene in this proceeding and participate as parties for the purpose of objecting to the issuance of the subject permit. Description of Proposed Mining Project The wetlands that make up the Section 14 Area are part of a larger 162 acre project area proposed to be mined and reclaimed by IMCF. This mining area is located to the south of the eastern portion of Bradley Junction, a small residential community. The Section 14 Area wetlands make up 131 acres of the overall project area. The remaining 31 acres of uplands involved in the proposed mining project are not subject to Department permitting requirements. IMCF has all necessary permits and approvals to gain access to the upland areas to carry out mining operations. These uplands areas are located primarily in the northernmost part of the project area directly abutting the location of certain residences and churches in eastern Bradley Junction. The jurisdictional wetlands in the Section 14 Area are located no closer than 450 feet from a residential structure in Bradley Junction. Most of the wetlands in the Section 14 Area are substantially farther away from the Bradley Junction residences. The initial step in the mining process will be to construct a ditch and berm system around the Section 14 Area. This ditch and berm system will effectively segregate the mining area from adjacent wetland areas that are to remain undisturbed. Approximately 99 acres of the Section 14 Area wetlands will actually be mined; the remaining 32 acres will be disturbed by the construction of the ditch and berm system. Following the construction of the ditch and berm, land clearing will take place. Once land clearing is completed, mining operations will commence. In phosphate mining operations, large, electrically-powered draglines are used. The dragline first removes and casts aside the "overburden" which is the earthen material that over lies the "matrix." The matrix is the geologic deposit that contains phosphate rock. The dragline extracts the matrix and places it into nearby pits where high- pressure waterguns are used to create a slurry of the matrix material. This slurry is then pumped to the beneficiation facility several miles distant from the mining operations where the matrix slurry is processed to extract the phosphate rock. The matrix is composed primarily of three major components: phosphate rock, sand, and clay. In the beneficiation process, the phosphate rock is separated from the other two components. Residual clays are then pumped to large settling areas where the clays are allowed to settle and consolidate prior to reclamation. No clay settling area is proposed to be located in the Section 14 Area. The sand "tailings" that are generated in the beneficiation process are pumped back to mined areas for use in reclamation programs. Sand tailings will be used in the reclamation proposed for the Section 14 Area. IMCF proposes to initially carry out ditching and berming activities in the Section 14 Area. The central and southern portion of the project area is planned to be mined during the period from July 1989 and June 1990. The dragline will then mine an area to the west outside of the project area. The dragline will return to mine the northern portion of the project area in May 1991. Actual mining operations in the northern portions of the Section 14 Area wetlands and the uplands near Bradley Junction residences will occur over approximately a seven-month period and the dragline will depart the area in December 1991. There are approximately 800,000 tons of phosphate rock underlying the Section 14 Area wetlands. After extraction and beneficiation, this rock will be used for the production of phosphate fertilizer or other phosphate-based products. Project Modifications IMCF has agreed to the following modifications to the Section 14 Area mining and reclamation project as originally proposed in July 1987: The southern boundary of the Section 14 Area has been moved to avoid encroachment on a small stream channel in the upper reaches of the South Prong of the Alafia River, the outlet from Hookers Prairie. The project has been modified to conform to setback requirements recently adopted by the Board of County Commissioners of Polk County. Under the revised setback requirements, the edge of a mine cut may come no closer than 100 feet from the IMCF property boundary or 250 feet from an occupied residence, whichever distance is greater. In response to concerns about noise and lights associated with mining operations, IMCF has agreed to restrict the hours of mining operations. Mining operations will not take place during the period from 11:00 p.m. to 7:00 a.m. when the dragline cab is located within 700 feet of a residence. In addition, mining operations will be suspended on Sundays during the period from 7:00 a.m. through 3:00 p.m. when a dragline cab is located within 700 feet of any place of worship in the Bradley Junction community. The Polk County Mining Ordinance requires that either a berm or a wire fence be constructed on the perimeter operations to limit unauthorized access. IMCF has agreed to construct both a berm and a solid wooden fence, at least six feet high, along the IMCF property boundaries adjacent to residences located in the Bradley Junction community. IMCF has agreed to expedite the reclamation of areas mined adjacent to residences in the Bradley Junction community. The area encompassing the first mine cut closest to the residences (a distance of 250 to 300 feet) will be recontoured and revegetated within 90 days following completion of mining in the area. The area encompassing the first two mine cuts (a distance of 500 to 600 feet) will be recontoured and revegetated within six (6) months following completion of mining in the area. Type, Nature and Function of Section 14 Area Wetlands The Section 14 Area is composed of approximately 127 acres of herbaceous (shrubby) wetlands and approximately 4 acres of young hardwood (forested) wetlands. Western Hookers Prairie, including the Section 14 Area, has been adversely impacted by land use activities over the last several decades. Parts of the area have been drained and cleared to accommodate agricultural uses. The resulting widely fluctuating water levels have induced the extensive growth of what the Department considers to be undesirable "nuisance species" such as cattails and primrose willow, in these areas. Other areas, especially in the southern portion of the Section 14 Area, contain some relatively diverse herbaceous wetland systems. The Section 14 Area also has been adversely impacted to some extent by emergency releases of phosphogypsum and acidic process wastewater generated by the chemical manufacture of phosphate-based fertilizer. Such spills occurred in the 1950s and 1960s and resulted in the deposition of high levels of phosphorous and fluoride in western Hookers Prairie. However, the Section 14 area is less affected than eastern parts of the Western Prairie due to a natural slight rise in elevation along the eastern edge of Section 14, causing a natural flow of water containing the contaminants generally south around Section 14. Wetland systems, in general, can perform certain valuable ecological functions. These functions include: nutrient retention/removal, sediment trapping, flood storage desynchronization, groundwater recharge, food chain support, wildlife habitat, and recreation. Certain wetland systems also serve a shoreline protective/wave dissipation function but that function is not relevant to herbaceous wetland systems like the Section 14 Area that are not adjacent to open water. Because of the nature of the Section 14 Area and the stresses previously imposed upon it, its ability to perform wetland functions has been reduced. The nutrient retention/removal function refers to the ability of the vegetation in wetland systems to remove excess nutrients from water. The Section 14 Area does not perform a significant nutrient retention/removal function. The available data indicate that waters leaving western Hookers Prairie at its outlet to the South Prong of the Alafia River contain more nutrients on balance than do waters entering the system. It is not uncommon for wetlands that are in headwaters of a water system to be net exporters of nutrients. In addition, in this particular area, the historical spills of phosphogypsum and acidic process wastewater have overloaded the sediments in the area with nutrients. The sediment trapping function refers to the ability of wetland systems to filter sediment (suspended particulate matter) from water as it travels through the wetland area. The Section 14 Area performs a reduced sediment trapping function. Although some of the water entering the Section 14 Area comes from Whiskey Store Creek to the north, some of the water entering Section 14 has already traveled relatively long distances through the rest of western Hookers Prairie so that most of the water entering the Section 14 Area does not contain high levels of sediments. As more and more parts are excised for phosphate mining, the importance of the sediment trapping function of the remaining portions, even Section 14, increases, at least until reclamation projects succeed. See "J. Cumulative Impact," below. The flood storage/desynchronization function refers to the ability of a wetland system to store rain water generated during storm events and then to release this water gradually, thus reducing the likelihood of downstream flooding. Hookers Prairie, as a whole, does serve a valuable flood storage/desynchronization function. The approximately 130 acres involved in the Section 14 project area only amount to three to four percent of the overall water storage capacity in the affected area. But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the stored water over time. It could be misleading to compare the storage of wetland to other water storage acreage on an acre for acre basis. Again, as more and more parts of the Prairie are excised for mining, the importance of the remaining areas increases, at least until reclamation projects succeed. IMCF did not give reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area. See "J. Cumulative Impact," below. The ground water recharge function of wetlands refers to those situations in which a wetland is connected to an underlying groundwater aquifer system in such a way that surface water flows into the wetland system and then down into the underlying aquifer system. The underlying aquifer system is thus "recharged" by the infusion of surface water through the wetland system. The Section 14 Area does not perform any significant groundwater recharge function. Hookers Prairie, including the Section 14 Area, is a topographic depression. Therefore, water can flow out of the uppermost aquifer system (known as the surficial aquifer) into the wetlands, but the reverse is not true. Furthermore, the water in the wetland area cannot move down into lower aquifer systems (such as the intermediate aquifer or the Floridian aquifer) because of the existence of geologic confining layers that underly the Section 14 Area and inhibit vertical groundwater flow. The food chain support function refers to the ability of a wetland to produce organisms or biological material that is used as food by other organisms either in the wetland itself or in surface water areas downstream of the wetland system. The Section 14 Area performs some food chain support functions. Food chain support can be performed in three ways. First, dissolved nutrients, such as phosphorous and nitrogen, can be released into the water. Because of the prior spills into Hookers Prairie, the area is already discharging nutrients in amounts that are normally considered to be high. The second mechanism for performing food chain support is the physical flushing of small aquatic organisms downstream to feed the fish or other larger aquatic organisms. Studies carried out by the United States Environmental Protection Agency indicate that the small organisms found in the downstream reaches of the South Prong of the Alafia River do not appear to be similar to those found at the point of discharge from Hookers Prairie. These data indicate that Hookers Prairie produces and releases this type of food chain support but that its direct impact does not extend significantly into the southern reaches of the South Prong of the Alafia River, as compared to the total production from other tributaries of the river. The third type of food chain support is the release of detrital material (partially decomposed vegetation). Detrital material generated in much of Hookers Prairie is likely to be retained in the Prairie because of the sediment/trapping filtration function discussed above in Finding No. 17(b). However, being adjacent to the outflow from the Prairie to the South Prong, Section 14 could be expected to deliver a larger share of detrital material than the portions of the Prairie further east. The Section 14 Area provides a wildlife habitat function although it does not appear to serve as diverse a group of wildlife as is served by the eastern portion of Hookers Prairie. The Section 14 Area is not utilized for recreational purposes. It is densely vegetated so that access by man is difficult. There are no open water areas that could be used for hunting or fishing. Mitigation IMCF proposes to mitigate the temporary loss of function caused by the mining of the Section 14 Area by reclaiming the area following the completion of mining operations. The first step in reclamation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously moved overburden material will then be spread and recontoured. Stockpiled organic muck material will then be spread over the reclamation area to provide a nutrient source to support plant growth. Department representatives will review and approve the final contours to assure that they are similar to those found in the original natural environment. Following completion of the contouring, the portion of the project area that will be reclaimed as a wetland will be inundated with water and then revegetated with desirable wetland species. The reclamation of the Section 14 Area will be subject to extensive monitoring by IMCF. This monitoring will involve short- and long-term vegetation monitoring and water quality monitoring. The results of this monitoring will be submitted to the Department, and the project will not be released from regulatory scrutiny until certain success criteria are met. During the period of recontouring, revegetation, and monitoring, the berm around the Section 14 Area will remain in place to isolate the area from the adjacent Hookers Prairie system. Once the Department determines that the vegetation in the Section 14 Area has been successfully reestablished, the Department will authorize IMCF to install culverts in the berm to allow for the gradual introduction of exchange of waters between the reclaimed area and the natural Hookers Prairie system. Following this process, after approval by the Department, IMCF will remove the berm area by pushing it back into the ditch and will replant the disturbed area in the previous location of the berm with desirable herbaceous wetland species. At that point, the reclaimed area will be totally reconnected to the rest of the western Hookers Prairie. The reclamation of the Section 14 Area will involve the recreation of approximately 121 acres of herbaceous wetlands. This is approximately the same amount of herbeceous wetlands that were mined or disturbed in the Section 14 Area. In addition, 24 acres of forested wetlands will be created. This is approximately six times the number of area of forested wetlands that were in the Section 14 Area prior to mining operations. IMCF has had extensive experience in the reclamation of wetland systems in Florida. The company has reclaimed over 3,000 acres of wetlands over the last ten years. The company's experience includes the reclamation of both herbaceous wetland systems and forested wetland systems. With regard to the proposed mitigation, the primary issue at dispute in the hearing was whether IMCF can control the growth of nuisance species, such as cattail and primrose willow, in accordance with the Department's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species shall be limited to ten percent or less of the total cover or, if these species exceed ten percent of the total cover, their density must be declining over several years. IMCF would use several methods to limit the growth of nuisance species in the reclamation area. The company will flood the reclamation area immediately following recontouring. In addition, the company will assure that water levels are maintained in the project area throughout the vegetation period. These hydrological controls are designed to preclude seeds from nuisance species growing nearby from blowing into the area and propagating. These seeds will not propagate under water. In addition, the project area would be covered by a two-inch to six- inch layer of organic mulch material. The use of such organic material inhibits the growth of nuisance species. Finally, IMCF will plant desirable wetland species on a relatively dense basis; i.e., on three- to five-foot centers. When established, these desirable species are expected to quickly grow and outcompete any nuisance species that may enter the area. There is legitimate concern about the growth of nuisance species in the reclamation area and about the company's ability to eradicate or remove nuisance species if in fact the area does become invaded. There also is legitimate concern that the disturbance caused by the construction of the perimeter berm might induce the growth of a five to fifteen foot band of nuisance species outside of the Section 14 Area. Even if this occurred, it would not have a significant impact on the Hookers Prairie system, which already contains a large amount of "nuisance species." Finally, there is a concern whether nuisance species can be kept out of the ditch and berm area after the berm is leveled since there no longer would be hydrological controls in place. I am persuaded by the weight of the evidence presented in this matter that, with the following additional special permit conditions, IMCF has provided sufficient reasonable assurances to the Department that it will be able to successfully reclaim the Section 14 Area and to control nuisance species growth in accordance with applicable Department policy: that, in accordance with existing Department policy, the plant material used for revegetation for the reclamation project be plants that grew naturally within 50 miles of the reclamation site; that the elevations in the reclamation site be "fine-tuned" after recontouring but before removal of the ditch and berm to approximate existing elevations as closely as possible except when deviations from existing elevations might be desirable to better accomplish the goals of the reclamation project and reduce nuisance species; that, upon removal of the ditch and berm, all nuisance species (cattails and primrose willow) that may have invaded the perimeter band along the berm (see Finding 25, above) be removed and revegetation over the ditch and berm area be on two to four foot centers to aid competition with any invading nuisance species. Evaluation of Project Impacts Extensive testimonial and documentary evidence was presented at the hearing concerning a wide variety of potential impacts associated with the mining of the Section 14 Area. Potential impacts addressed included the impacts of mining and reclamation upon surface water and ground water quality, upon surface water flow conditions, and upon the availability of ground water for use as a portable water supply by the Bradley Junction residents. In addition, evidence was presented concerning potential impacts upon the Bradley Junction community in the form of fugitive dust, physical damage to structures in the community, and impacts associated with machinery noise generate during the mining and reclamation process. Surface Water Quality The perimeter berm and ditch system around the Section 14 Area will completely segregate the mining operations from the adjacent Hookers Prairie wetland system and the South Prong of the Alafia River. Therefore, the mining operations will not have a direct adverse impact upon the quality of surface water outside of the Section 14 Area. As noted in Findings Nos. 17(a) and 17(b), the temporary exclusion of just the Section 14 Area from the Western Hookers Prairie wetlands system will not have a significant adverse water quality impact. But, see "J. Cumulative Impact", below. Construction of the berm will not significantly affect dissolved oxygen levels in Hookers Prairie even in the areas immediately adjacent to the berm. Natural dissolved oxygen levels in the Hookers Prairie system are relatively low, and its waters are normally in a static or stagnated condition. (Construction of the berm probably will elevate dissolved oxygen levels in some areas near the berm by creation of small open water areas and lower levels in other areas where discarded plant material accumulates.) The weight of the evidence indicates that the construction of the berm will not cause a violation of state water quality standards outside of the Section 14 Area. During the reclamation process, water quality monitoring will take place and the resulting data will be presented to the Department. Upon Department approval, the reclaimed wetland system will be gradually reconnected to the natural Hookers Prairie system. The water quality in the Section 14 Area after reclamation will comply with applicable State water quality standards. Ground Water Quality Several residents of the Bradley Junction community have raised concerns about the quality of the water withdrawn from their portable water supply wells. While it does appear that water from certain of these wells may be of substandard quality, this condition is not a result of phosphate mining operations and will not be affected by the mining and reclamation of the Section 14 Area. The basis for this finding is: Mining in the Section 14 Area will take place in the surficial aquifer system. Portable water supply wells in the Bradley Junction community area draw water from the intermediate aquifer system. The intermediate aquifer system is separated from the surficial aquifer system by a thick, relatively impervious clay layer that significantly impedes the vertical flow of ground water. The Section 14 Area is located hydrologically downgradient from the Bradley Junction community. Any seepage from mining operations will move away from Bradley Junction, not toward that location. The quality of the water that will be found in the mine cuts and ditches in the Section 14 Area is very good and probably would not significantly adversely impact the quality of the portable water drawn from Bradley Junction water supply wells even if it were physically possible for the mining-related waters to reach the wells. The Polk County Public Health Unit of the Department of Health and Rehabilitative Services carried out a study of the quality of portable water in the Bradley Junction community. The study indicates that water from certain of the wells exhibit elevated levels of fecal coliform. The probable source of this contamination is improper sanitary conditions in the area near the well locations. There is no evidence to indicate that phosphate mining operations have any impact on the quality of the water in these wells. Surface Water Flow Conditions At this time, the construction of the berm and ditch system and the mining in the Section 14 Area will have only a minor impact on surface water flow conditions outside of the Section 14 Area. The proposed mining and reclamation project itself will not cause an increased likelihood of flooding in downstream areas nor will it cause increased erosion in the South Prong of the Alafia River. IMCF has applied for and received a "Works of the District" permit for the Section 14 Area from the Southwest Florida Water Management District, the state agency primarily responsible for evaluating the impact of construction activities on surface water flow conditions. But see "J. Cumulative Impact," below. Ground Water Availability The digging of mine cuts in the surficial aquifer can result in a drawdown or lowering of the water table in the surficial aquifer system. If controls were not employed by IMCF in connection with the mining of the Section 14 Area, the surficial aquifer in the area of the Bradley Junction community could be drawn down by as much as five feet below natural levels. IMCF has applied for and received a consumptive use permit from the Southwest Florida Water Management District, the state agency primarily responsible for regulating the use of ground water in the State of Florida. The consumptive use permit requires IMCF to maintain the water level in the surficial aquifer at historic levels taking into account the natural variations in the water table that occur during the year. IMCF will comply with the conditions of the consumptive use permit by the use of two positive control methods. The perimeter ditch surrounding the project site will serve as a hydrological barrier or recharge ditch that will maintain the surficial aquifer water levels at historic levels. In addition, during mining operations, the dragline will cast the removed overburden material against the face of the mine cut. This procedure will have the effect of sealing the face of the mine cut and inhibiting the flow of ground water from contiguous areas into the mine cut. In accordance with the consumptive use permit, IMCF will monitor water levels adjacent to the Section 14 Area to assure compliance with the drawdown restrictions. 1/ As noted in Finding No. 32(a), the portable water supply wells in the Bradley Junction community draw water from the intermediate aquifer system. Water levels in the intermediate aquifer system are not significantly affected by the water levels in the surficial aquifer. The two systems operate independently by virtue of the thick confining layer that separates them. Mining operations in the surficial aquifer in the Section 14 Area will have no effect on the water levels in the intermediate aquifer system underlying the Bradley Junction community. Therefore, the proposed mining operations will have no effect upon the availability of water in the Bradley Junction portable water supply wells. Dust Dragline operations and slurry pit operations are wet process activities that do not generally result in the emission of dust. Dust can be emitted as a result of vehicle travel on access roadways, by land clearing operations, and during reclamation activities especially in the dry season under high wind conditions. IMCF will control dust emissions from the Section 14 Area by use of water trucks to keep access roads moist. In addition, IMCF will curtail land clearing and reclamation operations during periods when high winds are prevailing in the direction of the Bradley Junction community. Physical Impact on Structures Certain residents of the Bradley Junction community have complained that nearby mining operations have caused physical damage to their homes. The evidence presented at the hearing, however, demonstrates that neither vibration caused by the equipment used in mining operations nor the construction of mine cuts will cause any adverse physical effects on nearby structures. The basis for this finding are as follows: Vibration measurements taken in the vicinity of the type of equipment that will be used in the Section 14 Area demonstrates that the vibration levels that will be experienced at the residences closest to the mining operations are far below the level that would cause any structural damage. These worse case conditions would be experienced at a point approximately 250 feet from the mining operations. It should be noted that these conditions will only occur when mining operations are taking place in upland areas outside of the Department's jurisdiction. Vibration impacts resulting from mining activities in the more distant jurisdictional wetland areas are even less significant. A slope stability analysis carried out by Dr. John Garlanger demonstrated that the construction of a mint cut at a distance no closer than 250 feet from a residence will cause no adverse impact on the structural integrity of the residence. This conclusion is underscored by the fact that the dragline, which is larger and heavier than the typical Bradley Junction home, will safely operate very near the edge of the mine cut without significant risk of slope collapse. Any current physical damage to structures in the Bradley Junction community is probably the result of age, water damage, improper site preparation, and other improper construction techniques. Noise Draglines, pumps, and other pieces of heavy equipment to be used in the mining and reclamation of the Section 14 Area will produce noise that is audible to, and will be annoying to, the people living near the project. None of the expected noise levels will exceed the guidelines established by the Federal Highway Administration ("FHA") for construction of highway projects near residential communities. The FHA guidelines require that noise levels may not exceed 70 decibels more than 10 percent of the time. Even in the worst case situation, which involves mining in the upland areas no closer than 250 feet from a residential structure, the expected noise levels will not exceed the FHA guidelines. When mining operations occur at more distant locations, the noise experienced in the Bradley Junction community will be proportionately reduced. The suggested United States Environmental Protection Agency noise level limitation is 55 decibels. At the 55-decibel level, there was scientific evidence that noise exposure resulted in irritability and sleep loss, but no actual hearing loss would occur. The 55 decibel EPA guideline is calculated differently than the FHA guidelines. The maximum levels expected to occur near the Section 14 Area based on the data collected by Mr. Nelson were essentially in compliance with the EPA recommendations. Furthermore, the predicted noise levels reflect outside noise levels. The noise levels inside the structures in the Bradley Junction community would be below the recommended EPA levels because of noise attenuation by the structure. The mining operations would have a reduced impact upon sleep because the company will not operate between the hours of 11 p.m. and 7 a.m. when close to the residences. Mining operations in the northernmost portion of the project will occur over a period of seven months. Reclamation in the immediate vicinity of the Bradley Junction community will be completed within six months following mining operations. The predicted worst case conditions during mining and reclamation will occur only over a few weeks with regard to any particular residence. These worst case conditions will occur in upland areas outside the Department's jurisdiction. Noise resulting from activities taking place within jurisdictional wetlands is at even lower levels. Polk County Ordinance. The governmental body primarily responsible for public health concerns such as dust, noise and vibration impact or structures is the local government, Polk County. Polk County has enacted a mining setback ordinance which is less restrictive than other nearby counties - - only 250' from the nearest residence versus 500' in Hillsborough County and 1000' in Manatee County. Under the Polk County ordinance, IMCF is able to mine as close to Bradley Junction residents as it proposes. Archeological Resources There are no significant historical or archeological resources in the Section 14 Area. Cumulative Impact Hooker's Prairie is a wetlands marsh system which comprises the headwaters of the South Prong of the Alafia River. The Section 14 project area is an integral part of the Prairie. Although IMCF's case thoroughly addressed all other issues raised by the opponents of the Section 14 project-- including noise, dust and even damage to structures from vibration-- its case conspicuously failed to as clearly address the question of cumulative impacts. It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, also is unclear from the evidence. DER has issued five previous permits for phosphate mining in Hooker's Prairie. These permits are to W. R. Grace for approximately 1000 acres in the Eastern Prairie and IMCF for approximately 120 acres in the Western Prairie, including the recent IMCF Section 12 project involving mining and filling approximately 100 acres of Hooker's Prairie. It is not clear from the evidence how much of the 1000 acres already has been mined. DER's appraisal report, dated November 4, 1987, states that there has been recent mining in Section 18 in the Western Prairie. It points out that, as a result, cattails have intruded into Section 13 of the Prairie from the east. The report states that, aside from the Section 14 project area, there were then only 720 acres of wetland left in the Western Prairie, which has been almost blocked from the Eastern Prairie by mining activities, 620 in Section 13 and 100 in the west side of Section 7. It also states that almost 700 acres "in [the Section 14 project) area alone" were then permitted for mining. Although it is not clear, this appears to consist of 96 acres IMCF had under permit "in this immediate vicinity" and 580 acres of the Prairie to the east. It is not clear whether this acreage is in addition to, or part of, the acreage referred to in Finding 48, above. To date, no one has successfully restored mined wetlands in Hooker's Prairie. IMCF has restored a small, approximately 20 acre tract of wetland in the Western Prairie, but no success determination has yet been made. IMCF's approximately 100 acre restoration in Section 12 is underway. Efforts by Grace to restore mined wetland in the Eastern Prairie were delayed while Grace and DER negotiated an alternative to the original "land and lakes" restoration concept approved under the DER permits. A wetlands restoration concept finally having been agreed to, restoration now is underway. W. R. Grace has plans to mine the entire remaining wetlands of Hookers Prairie in the foreseeable future. Wetland restoration takes approximately two to four years. IMCF plans to mine in Section 14 from July, 1989, through December, 1991. Restoration is planned to take place through December, 1994. It may take longer. During part of this time period, IMCF's 120 acres of restoration in the Western Prairie still will not be functional. There was no evidence to suggest that the Grace wetlands restoration would be completed before IMCF plans to complete its Section 14 restoration project. There was no evidence as to when Grace is expected to complete any restoration of the 1000 acres it has under permit in the Eastern Prairie. The same would be true of any other parts of the wetlands that may be under permit. In light of the substantial, though undeterminable, reduction of the size of Hooker's Prairie from its historical size, the cumulative impact of removing an additional 131 acres of wetland from the system for approximately five or more years is significant. During this time, the size of functional wetland in the Prairie may be close to just half its historical size or even less. IMCF has not given reasonable assurances that the cumulative impact of the loss of another 131 acres of Hooker's Prairie for five or more years, combined with the recent reduction in the size of the functional wetland, will not be contrary to the public interest. Further phosphate mining in Hooker's Prairie should await successful restoration of wetlands in areas already under permit for mining operations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation deny the application of IMC Fertilizer, Inc., to mine for phosphate in Section 14, Hooker's Prairie, at this time. RECOMMENDED in Tallahassee, Florida this 14th day of February, 1989. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1989.
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
The Issue The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Findings Of Fact Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself. In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County. In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property. In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER. Jurisdiction Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989. Jurisdictional determinations were made pursuant to Rule 17-4.022 F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional. Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022, F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present. Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands. Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes. In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees. This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur. DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone. David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER. He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded. The second boring was taken within the area designated for the house pad. This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled. The third boring was taken just off the pad, but still in the cleared area. It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil. St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings. DER properly concluded that it has jurisdiction over the site. Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above. Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present. Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction. This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant. Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects. Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method. Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species. Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward." The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies. Generally, a study would be required, and the applicant has not provided such. The Merits of the Application The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County. This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region. The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities. Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums. Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland. Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas. Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project. No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1989. COPIES FURNISHED: Michael D. Jones, Esquire 996 Westwood Square Suite 4 Oviedo, Florida 32765 Vivian F. Garfein, Esquire Department of Environmental Regulation Twin Towers Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioners in this proceeding challenge the validity of Rule 10D- 6.23(3)(g), Florida Administrative Code, ("the rule"). The rule was included in a repromulgation of Chapter 10D-6, proposed readoption of which was noticed in the June 26, 1979, issue of Florida Administrative Weekly. A public hearing on the proposed adoption of new Chapter 10D-6, Florida Administrative Code, was held on July 19, 1979. The proposed rule package which was noticed on June 26, 1979, in the Florida Administrative Weekly contained proposed Rule 10D-6.22(30), which provided as follows: Net usable acre--Shall mean lots having designated minimum area and dimensions contiguous to open lands, such as golf courses, parks and other open unused areas that are not subject to development, may be reduced by not more than ten (10) percent from those requirements in the chapter. This, however, excludes paved areas, rights of way [sic] consolidated building, foundation drainage, underground water drainage, streams, lakes, ditches, coastal waters, marshes [sic] from deriving this net usable acre. Respondent, in accordance with Section 120.54(1), Florida Statutes, listed Section 381.031(1)(g)(3), Florida Statutes, as "specific authority" for adoption of the rule. Proposed Chapter 10D-6 also contained Rule 10D-6.23(5)(g) which provided as follows: Notwithstanding any other provisions of this chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities provided that there are no more than two lots per net usable acre and that all distance and setback, soil condition, water table elevation and other related requirements, which are generally applicable to the use of individual sewage disposal systems, are met. (Emphasis added). Prior to both publication of notice and the holding of the public hearing on proposed Chapter 10D-6, the 1979 Florida Legislature passed Chapter 79-45, Laws of Florida, amending Section 381.272(7), Florida Statutes, to read as follows: Notwithstanding any other provisions of this chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities, provided there are no more than four lots per acre and that all distance and setback, soil condition, water table elevation, and other related requirements which are generally applicable to the use of individual sewage disposal systems are met. (Emphasis added). This amendment, which became law May 11, 1979, had the effect of increasing the number of permissible lots per acre from 2 to 4 in subdivisions electing to utilize public water systems and septic tanks, provided that other applicable criteria could be met. As indicated earlier, a public rule hearing on the proposed repromulgation of Chapter 10D-6, Florida Administrative Code, was held on July 19, 1979 on the rules noticed for hearing in the June 29, 1979, issue of the Florida Administrative Weekly. After the public hearing, without additional notice, Respondent renumbered various rules in Chapter 10D-6, reworded others, and filed with the Secretary of State on September 27, 1979, new chapter 10D-6 which included Rule 10D-6.23(3)(g), Florida Administrative Code, challenged herein, which provided as follows: Whenever individual sewage disposal systems are used under provisions of Section 10D-6.23(3)(f), an acre, as defined elsewhere in this Chapter, shall not include the following: paved areas, paved and unpaved rights of ways [sic], paved roadways, consolidated buildings, foundation drainage, underground water drainage, streams, lakes, ditches, coastal waters and marshes. Within any given acre where lots abut open land, such as golf courses, parks and other open unused areas that are not subject to development, the requirements of Section 10D-6.23(3)(f) may be diminished by not more than ten (10) percent for those lots abutting the open lands, provided that said open lands are not developed, provided further that all distance and set back, soil condition, water table elevation and other related requirements of Chapter 10D-6 are met. Proposed Chapter 10D-6 which had been noticed for public hearing by Respondent had contained no rule numbered 10D-6.23(3)(g), nor did it contain any rule with the language set forth in the rule ultimately filed by Respondent with the Secretary of State. Instead, Rule 10D-6.23(3)(g) challenged here, appears to be a combination of language that had been contained in proposed Rules 10D- 6.22(30), and 10D-6.23(5)(g). Respondent did not furnish notice of the afore-mentioned changes in Chapter 10D-6 to any of the Petitioners in this proceeding or, so far as can be determined from the record in this proceeding, any other members of the general public or the Administrative Procedures Committee. Rule 10D-6.23(3)(g) became effective on October 17, 1979. On September 27, 1979, Respondent also filed with the office of the Secretary of State a statement detailing the anticipated economic impact of the repromulgation of Chapter 10D-6, Florida Administrative Code. Respondent's economic impact statement provided in pertinent part, as follows: Cost of [sic] Benefit to Persons Directly Affected: The proposed changes clarifying land usage for individual sewage disposal systems will enable developers to increase the number of home sites available for development in specific tracts of undeveloped land. This will result in a net reduction in the average cost of developing a home site which is estimated at $1,000 per site. Approximately 50,000 individual sewage disposal facilities will be installed this fiscal year and the resulting savings are estimated as follows: 10 percent of sites = 5,000 x $1,000 per site = $5,000,000. Estimate of Effect on Competition and Open Market: We foresee no impact on competition and open market. Data and Method Used in Making Above Estimates: The figures on the number of individual sewage facilities to be installed were obtained from the Department of Health and Rehabilitative Services' reporting system. The cost figures were derived by arithmetic calculations. The economic impact statement, by its terms, does not purport to analyze the potential economic impact of any individual rule contained in the repromulgation of Chapter 10D-6, Florida Administrative Code. Instead, the economic impact statement apparently attempts to analyze in some fashion not readily apparent from the document itself or testimony offered in its support, the economic impact of the repromulgation of the entire chapter. Contrary to the conclusion reached in Respondent's economic impact statement, the record in this proceeding clearly establishes that challenged Rule 10D-6.23(3)(d) Florida Administrative Code, will make the development of land more costly by requiring a deduction from the statutorily permissible four lots per acre those portions of property consisting of ". . . paved areas, paved and unpaved rights of ways [sic], paved roadways, consolidated building, foundation drainage, underground water drainage, streams, lakes, ditches, coastal waters and marshes . . . " In fact, testimony that the proposed rule would increase the cost of developing land is the only competent evidence of record in this proceeding concerning the potential economic impact of the proposed rule. The economic impact statement was prepared by an employee of Respondent who was qualified at the hearing as an expert in the areas of environmental health and sanitary science. In testifying concerning the methodology employed by him in preparation of the economic impact statement, the following exchange occurred: Q. In preparing the economic impact statement, did you consider the effect of Rule 10D-6.23(3)(g), the net acre rule? A. No, I did not. Q. Did you prepare the economic impact statement? A. Yes. Q. And you did not consider the net acre rule in promulgating that particular economic impact statement? A. No, I did not. Q. When you promulgated the economic impact statement, was it applied to the two per acre requirement or to the four per acre requirement? A. It applied to the two acre, because four was not passed yet. Q. You mention in the economic impact statement that you used as the method, data and method, the reporting system of HRS. Is that correct? A. That's correct. Q. Does the reporting system of HRS indicate the lots that are contiguous to open space? A. No. Q. Does it tell you the size of the lot? A. No. Q. Does it tell you whether or not a roadway is paved or unpaved in front of the lot? A. No. Q. Does it tell you if a curb or gutter is front [sic] of the lot? A. No. Q. Does it tell you the size of the roadway? A. No. Q. Does it tell you whether or not there is a drainage easement in front of the lot? A. No. Q. How did you derive in the economic impact statement the average cost of developing a homesite at $1,000? A. I don't remember. Q. You don't remember where that came from? A. No. In short, the record in this proceeding is singularly lacking any substantiation, or even a comprehensible explanation of the method used or the data employed by the agency in assessing the potential economic impact of the challenged rule. Framat Realty, Inc. ("Framat") is the developer of Plantation Lake Estates ("the Subdivision"), an unrecorded subdivision of single family lots located in Monroe County, Florida, Framat seeks to have the subdivision permitted for septic tank usage. Framat has not built and has no plans to build a package treatment plant for the subdivision, which plant, if constructed, would cost approximately $130,000. Framat has conveyed 46 of the 50 lots located in the subdivision, and homes are built or under construction on 18 to 20 of those lots. All of the developed lots have been permitted for septic tank usage. Monroe County ceased permitting septic tanks in the subdivision during the summer of 1980. Petitioner Arthur M. Elliott owns Lot No. 50 in the subdivision which is not developed or permitted for septic tank usage. Mr. Elliott wishes to build a home on his lot and to install a septic tank for use with that home. The total land area of the subdivision is 12.791 acres, which, with 50 lots, results in a "gross" density of 3.93 lots per acre for the 50 lots in the subdivision. Lot Number 50, owned by Mr. Elliott, is 80' x 100', and is the smallest lot in area in the subdivision. A septic tank and drain field has been designed which meets all the requirements of Rule 10D-6, Florida Administrative Code, for a three bedroom home on Mr. Elliott's lot, with the exception of those requirements imposed by the challenged rule. The subdivision receives its water from Florida Keys Aqueduct Authority, a public water system. The soil profile in the subdivision to a depth of eight feet shows tan, sandy lime rock. The tested percolation rate, or the time in which a drop of water moves one inch through the soil, was approximately one inch for each one minute and ten seconds at the three sites tested within the subdivision. Soil tests also indicate that the depth from surface to ground water at each of the three sites tested ranged from 7.7 feet to 6 feet to 3.6 feet. The soil tests, including water table measurements, were made on November 12, 1980, at the end of the rainy season, when the water table is at its highest annual point. Additionally, topographic studies of the roadways throughout the subdivision show a minimum lot elevation of 4.35 feet mean sea level. All lots in the subdivision are graded approximately the same level as existing roadways. Petitioner, Florida Home Builders Association, is a non-profit trade association representing all aspects of the building industry, including septic tank installers and many developers who utilize septic tanks in construction. Membership in the Florida Home Builders Association also includes builders, developers, architects, realtors, and contractors. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
