The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 36-00583- S-02, Application No. 050408-15 to Plantation Development, Ltd. (PDL), for construction and operation of a surface water management system serving a 78.11-acre condominium development known as Harbour Pointe at South Seas Resort, with discharge into wetlands adjacent to Pine Island Sound.
Findings Of Fact Based on the evidence and arguments, the following facts are found: The Parties PDL, the applicant, is a limited partnership which is the successor to Mariner Group, Inc. (Mariner). SFWMD has jurisdiction over PDL's application, as amended, and has given notice of its intent to grant PDL's application, as amended, with certain conditions. Petitioners, CCA and SCCF, and Intervenor, CSWF, are Florida not-for-profit corporations that challenged the proposed ERP. Development and Permit History The property subject to PDL's application was part of approximately 310-acres on the northern end of Captiva Island in Lee County, Florida. Redfish Pass is to the immediate north, separating Captiva Island from North Captiva Island. Farther to the north is Cayo Costa Island, a large island to the south of Boca Grande Pass. Most of Cayo Costa is a State Park. To the south of Captiva Island is Sanibel Island, the site of the Ding Darling National Wildlife Refuge. To the northeast of Sanibel Island and to the east of the rest of the string of barrier islands just mentioned is Pine Island Sound, which is to the west of Pine Island. Pine Island Sound is a state-designated Aquatic Preserve and Outstanding Florida Water (OFW). Pine Island Sound also is state-designated Class II water, but shell-fishing is prohibited in the immediate vicinity of Captiva Island. To the east of Pineland Island is Little Pine Island, which is surrounded by the Matlacha Pass Aquatic Preserve, which includes the Matlacha Pass National Wildlife Refuge. All of these features are part of the Charlotte Harbor National Estuary (CHNE). San Carlos Bay is farther south. The Lee County mainland is to the east of Matlacha Pass and San Carlos Bay. The 310-acre site was purchased by Mariner in 1972 for development of a resort that became known as the “South Seas Plantation.” Mariner's property included both Captiva Island proper and a smaller island immediately to the east across Bryant Bayou to the north and Chadwick Bayou farther to the south. Bryant Bayou has a narrower inlet from the north, and Chadwick Bayou has a narrower inlet to the south. Both inlets lead to Pine Island Sound. When Mariner purchased the property, it theoretically was possible to develop a maximum of 3,900 dwelling units on the 310-acre property, pursuant to Lee County zoning. In 1973, Mariner submitted an application to Lee County for the right to develop of 912 dwelling units on its 310 acres. PDL characterizes this as a "voluntary down-zoning" for the purpose of protecting the environment and unusual for a developer to do at that point in time. However, it is speculative how much more than 912 dwelling units would have been approved by Lee County at the time. The purpose of Mariner’s application to Lee County was to create a resort where recreational, single family, multi- family, and some commercial uses would coexist in a resort setting. The overall development plan was to construct the resort while conserving many of the property’s natural resources, including several miles of mangrove and Gulf of Mexico shoreline. Lee County approved the rezoning and the concept of the South Seas Plantation in 1973. Mariner's development began with Captiva Island proper and included a marina, golf course, and a variety of residential condominiums and single-family home sites. Some of the residential units were sold, and others remained in Mariner's ownership. Mariner marketed the rental of units at South Seas Plantation and served as rental agent for units not owned by Mariner. Development of the marina included dredging, and spoil was deposited on the northern tip of the smaller island, helping to create approximately 1.4 acres of upland there. In the 1950's or 1960's, a natural sand-and-shell berm along the eastern shore of the smaller island was built up and maintained by addition of fill material to create a two-track sand/shell road, which was used for vehicular access to the northern tip via an east-west road that divided the smaller island roughly in half and connected it to Captiva Island proper and the main road at South Seas Plantation. At a later point in time, the east-west portion of the road was paved for better access to a drinking water plant, a wastewater treatment plant, and a helicopter pad used by the Lee County Mosquito Control District. In 1985, Mariner received from SFWMD a “Master Stormwater Permit” for its entire development (the 1985 Permit). At that time, SFWMD did not regulate wetland impacts, only surface water management systems. The Department of Environmental Regulation regulated wetland impacts through its dredge and fill permit program, and there was no evidence relating to any dredge and fill permitting on the property. The 1985 Permit was for surface water management systems for construction in uplands on the property. No surface water management systems were needed or permitted in any wetlands. The 1985 Permit included a surface water management system for an 18-unit hotel on the spoil uplands of the northern tip of the smaller island. Permit drawings showed plans for a golf course on much of the remainder of the smaller island, which consisted mostly of wetlands. Access to the facilities was envisioned to be by water taxi, with emergency access via the utility and sand/shell road. Together, the hotel and golf course was to become a part of the resort known as Harbour Pointe. The 1985 Permit was modified several times in the years since its initial issuance, during which time Chapter 373, Florida Statutes, was amended to give SFWMD authority to regulate activities in waters and wetlands. However, until the pending application, none of the modifications had wetland impacts. In 1998, Mariner negotiated the sale of ten resort properties it owned in Florida, including South Seas Plantation, to Capstar, which later became Meristar S.S. Plantation Co., LLC (Meristar). Meristar was a real estate investment trust which specialized in hotels. Because it was not in the development business, Meristar was not interested in purchasing the as-yet undeveloped Harbour Pointe portion of South Seas Plantation, or Mariner's remaining development rights. As a result, Meristar purchased all the developed land on South Seas Plantation but not the approximately 78 acres of undeveloped land which is the subject of the pending application, or any of Mariner's development rights. Thus, after the sale of South Seas Plantation, Mariner retained its development rights and the 78 acres of undeveloped land, which are the subject of PDL's application. In 2002, Lee County issued an Administrative Interpretation which clarified that those development rights consisted of a maximum of 35 more residential units. Eleven units subsequently were built, leaving a maximum of 24 residential units when PDL filed its application in this case. The 78-acre Harbour Pointe site consists of mangrove wetlands, privately owned submerged lands, the 1.4-acre upland area at the northern tip of Harbour Pointe and another 1.4 acres of upland, which contain a Calusa Indian mound, known as the Chadwick Mound for its location west of Chadwick Bayou. While agreements between Meristar and PDL contemplate that PDL's subsequent development at Harbour Pointe would be marketed as part of the South Seas Resort and share some amenities and services, the parcels which comprise the Harbour Pointe development are the only undeveloped lands PDL owns or controls. PDL has no contractual or other legal right to develop on property owned by Meristar. Because it was modified several times since issuance, the 1985 Permit has not expired. However, Harbour Pointe never was constructed, and that part of the 1985 Permit expired in that Mariner lost its entitlement to proceed with construction. Instead, development of Harbour Pointe would require a permit modification under the new laws and rules, which included the regulation of wetland impacts. The Application and Proposed ERP In October 2003, PDL applied to SFWMD to further modify the 1985 Permit for construction of a water taxi dock for access to Harbour Pointe. After being informed by SFWMD that modifications to the 1985 Permit for development of Harbour Pointe would be reviewed under current laws and regulations, PDL withdrew the application. In April 2005 PDL applied for modification of the 1985 Permit to construct six 9,500 square-foot, four-plex condominium buildings (each two stories over parking, and accommodating units having 3,600-3,800 square feet of air-conditioned living space), a pool and spa, a tennis court, an access road, a filter marsh and surface water management facilities. Additionally, the site plan deleted all boat docks, except for a single water taxi slip and possibly a dock for launching kayaks and canoes and proposed a drawbridge across the inlet to Bryant Bayou to connect the project site to the South Seas Resort and eliminate the need for the emergency access road on the smaller island. This application described a development site of 7.4 acres, which included 4.8 acres of direct impacts to (i.e., destruction and fill of) mangroves and .1 acre of shading impacts from construction of the drawbridge. The proposed mitigation for the mangrove impacts included: restoration (by removal and replanting) of .6 acre of the north-south sand/shell road, with resulting enhancement of the adjacent preserved mangrove wetlands through improved hydrologic connection across the former shell/sand road and improved tidal connection to Pine Island Sound to the east; and preservation of the rest of PDL's property. The preserved areas would include: approximately 36 acres of mangrove wetlands adjacent to and south of the impacted wetlands (included the road to be restored) (Parcel A); 24.5 acres of mangrove wetlands south of the utility road and east of the narrow inlet to Chadwick Bayou (Parcel B); 9.3 acres of mangrove wetlands (7.9 acres) and tropical hardwoods (1.4 acres, which includes the Chadwick Mound), south of the utility road and west of the inlet to Chadwick Bayou, (Parcel C); .9 acre of mangrove wetlands to the west of Parcel C and the South Seas Resort main road (Parcel D); and .8 acre of mangrove wetlands separated from Parcel A by Bryant Bayou and adjacent to the South Seas Resort main road. A monitoring program lasting at least five years was offered to ensure success of the restoration and mitigation proposal. The application itself incorporated some reduction and elimination of wetland impacts. The total site consists of five separate tax parcels which could be developed into a number of single-family home sites. Such a development plan would have greater direct impacts than the proposed project and would require the shell/sand road to be significantly widened to meet current code requirements. By using the bridge as access, .11 acre of wetlands would be disturbed, as compared to 3.9 acres of total impact that would occur because of the widening the road. This approach results in the entire project causing less wetland impact than would occur from the use of the road alone. After the application was filed, PDL responded to two written requests for additional information and several other questions raised during meetings, phone conversations, and email exchanges with one or more SFWMD staff members. During this process, the application was amended. The tennis court was eliminated, and the filter marsh was replaced by a five dry detention ponds. In addition, the resulting development was concentrated more into the northern tip of the island to reduce and eliminate the greater secondary impacts (from more "edge effect") to the preserved wetlands to be expected from a more linear site plan. These changes reduced the footprint of the proposed project to 5.24 acres, the building size to 6,400 square feet each, the residential unit size to 2,400 to 2,600 square feet each, and wetland impacts to 2.98 acres, plus .11 acre of shading impacts from construction of the drawbridge. In addition, since the project was more concentrated at the northern tip, another tenth of an acre of the sand/shell road was to be restored. A conservation easement was offered for the 73.31 acres to be preserved, including 71.10 acres of wetlands, in Parcels A through E. PDL also offered to purchase .11 credits of offsite mitigation from the Little Pine Island Wetland Mitigation Bank (LPIWMB). On February 2, 2006, SFWMD's staff recommended approval of the amended application with 19 standard general conditions and 30 special conditions. Some of the special conditions in the Staff Report addressed prevention of erosion, shoaling, silt, turbidity, and water quality problems during construction or operation; remediation of any such problems not prevented; and restoration of any temporary wetland impacts. A pre-construction meeting was required to discuss construction methods, including construction dewatering. Although PDL indicated that dewatering would not be necessary for construction of the project, the Staff Report recommended that a dewatering plan be submitted before any dewatering occurred and noted that PDL would have to obtain all necessary Water Use authorizations, unless the work qualified for a No-Notice Short-Term Dewatering permit pursuant to Rule 40E- 20.302(3) or is exempt pursuant to Rule 40E-2.051.1 On February 8, 2006, SFWMD's Governing Board gave notice of its intent to approve the amended application with two additional conditions that were added to the Staff Report: PDL was required to apply for and receive a permit modification for the roadway necessary to access the project (i.e., the road leading from the South Seas Resort main road to the proposed drawbridge), and the applicant for the road to the drawbridge was required to document that proposed construction was consistent with the design of the master surface water management system, including land use and site grading assumptions; and a perpetual maintenance program for restored and preserved areas, including removal of exotic and nuisance vegetation in excess of five percent of total cover between regular maintenance activities, or such vegetation dominating any one section, was required to ensure integrity and viability. The parties interpreted the first of the two additional conditions to mean that construction access to build the project would be via the new roadway and drawbridge. On May 30, 2006, to address certain issues raised by the pending challenge to SFWMD's intended action, PDL further amended the application to substitute two wet retention ponds and three dry retention ponds for the five dry detention ponds and to make associated minor changes to the proposed surface water management system's water quality treatment methods to further reduce water quality impacts from the discharge of the system into the adjacent preserved wetlands. In addition, in view of disagreements among the parties as to the ability of PDL's onsite mitigation proposal to offset wetland impacts, PDL offered to increase offsite mitigation by purchasing as many additional credits from the LPIWMB as necessary to completely offset wetland impacts, as determined by the Uniform Mitigation Assessment Methodology (UMAM). Water Quantity Impacts Pursuant to Rule 40E-4.301(1), an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities. Section 6.0 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (BOR), entitled Water Quantity Criteria, outlines the criteria that the applicant must meet for water quality at the project site. As outlined in BOR Section 6.2, the off-site discharge is limited to rates not causing adverse impacts to existing off- site properties. The proposed surface water management system consists of a series of swales, dry retention, and then a wet retention system with an outfall into the areas to the south. Ordinarily, stormwater runoff eventually will be absorbed into the ground. Any discharge associated with the system, typically only in conjunction with major rain events, will flow into a preserved wetland that will be hydrologically connected to Bryant Bayou and Pine Island Sound. As outlined in BOR Section 6.2, the off-site discharge rate is limited to historic discharge rates. As required by BOR Section 6.3, a storm event of 3-day duration and 25-year return frequency is used in computing off- site discharge rates. As required by BOR Section 6.4, building floors must be at or above the 100-year flood elevations. PDL conducted a hydrologic analysis of the existing condition of the property, analyzed the runoff patterns that would result during the 25-year rainfall event and then compared the development plan hydrologic analysis to the existing condition. The conclusion was that the development plan would not adversely affect offsite area. PDL analyzed a series of storm conditions for the protection of road elevations and the protection of finished floors. There are no off-site areas that contribute to runoff through this piece of property. The proposed system will not cause adverse water quantity impacts to waters and adjacent lands, flooding to onsite or offsite properties, or adversely impact existing surface water storage and conveyance capabilities. Water Quality Impacts Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the proposed project will not adversely affect the quality of receiving waters so that State water quality standards will not be violated. BOR Section 5.0 is entitled Water Quality Criteria. BOR Section 5.1 states that projects shall be designed and operated so that offsite discharges will meet State water quality standards. BOR Section 5.2.1 requires that either retention or detention, or both retention and detention be provided in the overall system in one of the following three ways or equivalent combinations thereof: Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. Retention volume included in flood protection calculations requires a guarantee of long term operation and maintenance of system bleed-down ability. BOR Section 5.9 states that all new drainage projects will be evaluated based on the ability of the system to prevent degradation of receiving water and the ability to conform to State water quality standards. In the design of the system, PDL proposed a series of best management practices. The first is to treat runoff through grassed swale areas adjacent to buildings and some of the internal roadways. From there, the water would discharge through a series of dry retention areas where there would be further removal and treatment. The water would discharge through a proposed wet retention area prior to outfall under more significant rainfall events, southward into the preserved wetland area. Because of the hydrological connection from there to Bryant Bayou and Pine Island Sound, a more detailed evaluation was conducted. PDL's detailed evaluation included source control measures. The first one is a construction pollution prevention plan. PDL also proposed an urban storm water management plan. PDL is going to provide guidance to property owners about pesticide and fertilizer management control. The Applicant also submitted a street-sweeping proposal. The design of the system incorporates an additional 50 percent water quality treatment volume, over and above the requirements of the BOR. The wet retention system, located to the north of the proposed outfall structure, incorporates submerged aquatic vegetation. That is not a requirement of the District. It is an extra measure that will remove additional levels of pollutants prior to outfall. PDL proposed an urban stormwater management plan. The plan requires annual inspection of the water management facilities, and it must be documented that the system is functioning as originally designed and built. The stormwater management system is capable, based on generally accepted engineering and scientific principles, of functioning as proposed. The stormwater management system satisfies the District's water quality criteria. Petitioners and Intervenor criticized the method used by PDL's water quality consultant, Dr. Harvey Harper, for projecting and evaluating water quality impacts to be expected from PDL's stormwater management design. They contended that the so-called "Harper method" has been criticized by other experts, none of whom testified. Dr. Harper ably defended himself against the criticism leveled at him. He testified that most if not all of the components he has incorporated into his evaluation method are not new but rather have been accepted and used by experts in his field for years. He also explained that he refined his evaluation method in response to some early criticism and that the method he used in this case has been peer-reviewed and accepted by the Department of Environmental Protection for evaluation of stormwater design criteria. While some of the assumptions incorporated in his evaluation method are simple averages of a relatively small samples, and sometimes averages of averages, Dr. Harper was confident in the ability of his method to accurately evaluate the expected water quality impacts from PDL's system. While there is potential for error in any projection, Dr. Harper's evaluation provided reasonable assurances that utilization of PDL's proposed stormwater management and treatment method will not result in violation of any State water quality standards or significantly degrade the water quality of Bryant Bayou or Pine Island Sound. Value of Wetland and Surface Water Functions In general, as part of the CHNE, the mangrove wetlands to be impacted by the proposed ERP are very important. The CHNE Coast Conservation Management Plan identifies three major threats to the estuary and local ecosystem: fish and wildlife habitat loss; water quality degradation; and hydrological alteration. The plan calls for the preservation of mangroves within the CHNE. A wide array of wildlife uses the habitat in the vicinity of the mangrove wetlands to be impacted. The site is in an important coastal fly-way for migratory birds, including numerous species of waterfowl and songbirds that migrate across the Caribbean and Gulf of Mexico to and from South and Central America. The project area also provides habitat for several listed wildlife species, including the American crocodile, wood stork, and West Indian manatee. The mangrove wetlands that will be impacted directly and indirectly by the proposed ERP are in relatively good condition and are very important due primarily to their location near Redfish Pass at the northern end of Captiva Island and to their relationship to the rest of the relatively large area of contiguous and relatively undisturbed wetlands in Parcels A through E. These attributes make them especially important as a nursery ground for several valuable fish species. Existing impacts attributable to the spoil and other disturbances in the adjacent uplands, the northernmost extent of the sand/shell road, and the South Seas Plantation/Resort development to the west across the inlet to Bryant Bayou keep these impacted wetlands from being of the very highest quality. Clearly, and obviously, the project will destroy and fill 2.98 acres of these wetlands. Indirect (secondary) impacts to the adjacent preserved wetlands will result from alteration of hydrology of the 2.98 acres of directly impacted wetlands. Instead of sheet-flowing across the uplands on the northern tip of Harbour Pointe into those wetlands, surface water on the 5.24- acre development project will be directed into a series of swales, to the dry retention ponds, and to the wet retention ponds with an outfall to the adjacent preserved wetlands to the south. Secondary impacts from the Harbour Pointe project will be similar to the existing secondary impacts to the 2.98 acres attributable to the adjacent spoil and the South Seas Plantation/Resort development, if not somewhat greater due to the absence of any buffer like the inlet. On the other hand, PDL's mitigation proposal will restore .7 acre of wetlands where the northern end of the north- south sand/shell road now exists. Eventually, the restored wetland would be expected to become an extension of the existing, adjacent red and basin black mangrove forest. In addition, the resulting improved hydrologic connection to Pine Island Sound will enhance the value of functions in the preserved wetlands, including possibly expanding the existing fish nursery and making it accessible to fish larvae and juvenile fish entering from the east as well as from the west via Bryant Bayou. There was much debate during the hearing as to whether the sand/shell road is natural or man-made and whether it is reducing what otherwise would be the natural tidal and hydrologic connection between the wetlands to the west of the road and Pine Island Sound. As indicated, a prior owner added fill material to the natural sand and shell berm in the 1950's and 1960's to create better vehicular access. See Finding 9, supra. The evidence was reasonably persuasive that those man-made changes have altered hydrology and tidal connection to some extent and that the restoration project will enhance the value and functions of the preserved wetlands to some extent. Impacts to the value of wetland and surface water functions, and corresponding mitigation for impacts, are required to be assessed using UMAM. See Fla. Admin. Code R. 62-345.100. While the mitigation assessment method might be uniform, its application and results are not. Three different experts used UMAM with differing results. SFWMD's expert, Mr. Cronyn, and PDL's consultants, Kevin L. Erwin Consulting Ecologist, Inc. (KLECE), conferred after their initial assessments, resulting in changed results by both (as well as correction of errors in initial scoring by Mr. Cronyn.) Dave Ceilley, an expert for Petitioners and Intervenor, scored the 2.98 acre impact area significantly higher in its current state than the final score of either Mr. Cronyn or KLECE, resulting in a higher functional loss from its destruction and filling. He also gave no credit for restoration of the sand/shell road, in contrast to KLECE and Mr. Cronyn, and scored PDL's mitigation proposal as it affected 36.6 acres of preserved wetlands (essentially, Parcel A) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Mr. Ceilley also scored PDL's mitigation proposal as it affected 24.5 acres of preserved wetlands (Parcel B) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Finally, he gave no credit for preservation of Parcels A through E via a conservation easement because he was under the mistaken impression that the land already was under a conservation easement in favor of Lee County. (Actually, PDL had agreed to preserve 65 acres of mangrove forest in return for the right to develop Harbour Pointe, although a conservation easement actually was imposed on only about six acres. Although not identified, the 65 acres probably would have included the preserved wetlands in the proposed ERP.) Mr. Cronyn gave credit for preservation of Parcels B through E. KLECE did not claim credit, because KLECE did not think it was necessary, but KLECE accepts Mr. Cronyn's assessment of those parcels. Mr. Ceilley's recent onsite field work was extremely limited, and much of his assessment was based general knowledge of the area and dated (14-year old) onsite field work. In addition, this was the first "real-life" UMAM assessment performed by Mr. Ceilley. His only other use of UMAM was for practice in training. Finally, his assessment was entirely independent without the input of any other consultants to aid him. In contrast, both KLECE and Mr. Cronyn had extensive prior experience using UMAM. In addition, KLECE functioned as a three- man team in performing its UMAM assessments and talked out any initial discrepancies and disagreements (albeit with Mr. Erwin being the final arbiter). KLECE and Mr. Cronyn also consulted with one another, as well as experts in other related fields before finalizing their respective UMAM assessments. KLECE was able to draw on field work conducted during over 200 man-hours onsite in recent years. While KLECE was the retained consultant and agent for the applicant in this case, Mr. Ceilley conceded that Mr. Erwin adheres to high ethical standards. Petitioners and Intervenor were critical of credit given in the UMAM assessments performed by Mr. Cronyn for preservation of Parcels B through E. (KLECE did not claim credit for their preservation in its UMAM assessment.) Petitioners and Intervenor contend that PDL already has agreed to preserve the wetlands in those parcels in return for the ability to utilize the remaining 24 residential units of development rights at Harbour Pointe and that development of the Chadwick Mound is unlikely. Actually, as found, PDL's agreement with the County only specified six of the 65 acres of wetlands to be preserved. Besides, the preserved wetlands in the proposed ERP would implement the agreement with the County. As for the Chadwick Mound, preservation without the proposed ERP is not a certainty, although residential development there would be difficult now that its existence is common knowledge. In any event, the relative unlikelihood of development in Parcels A through E, especially after development of 24 units at Harbour Pointe, was taken into consideration by Mr. Cronyn in determining the amount of credit to be given for their preservation. Taking all the evidence into account, Mr. Cronyn's UMAM assessment of the value of wetland functions with and without the proposed ERP are accepted. According to his assessment, the proposed ERP will result in a functional loss of .34 functional units, meaning an equivalent amount of mitigation credit would have to be purchased from the LPIWMB to offset wetland impacts. Based on the functional assessment used to permit that mitigation bank, approximately an additional .9 of a mitigation bank credit would be needed, in addition to the .11 already offered. The evidence as to cumulative impacts did not clearly define the pertinent drainage basin. Logically, the pertinent drainage basin either would encompass all land draining to surface waters connected to Pine Island Sound, which would include Little Pine Island, or would be limited to the land that is subject to the proposed ERP. If the former, all offsetting mitigation would be within the same drainage basin. If the latter, there would be no cumulative impacts, since the proposed ERP would complete all development. Reduction and Elimination of Wetland Impacts According to BOR Section 4.2.1.1, if a proposed surface water management system will result in adverse impacts to wetland or other surface water functions such that it does not meet the requirements of Sections 4.2.2 through 4.2.3.7, the District must consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts. The term "modification" does not mean not implementing the system in some form, or requiring a project that is significantly different in type or function, such as a commercial project instead of a residential project. Elimination and reduction also does not require an applicant to suffer extreme and disproportionate hardship--for example, having to construct a ten mile-long bridge to avoid half an acre of wetland impacts. However, Anita Bain, SFWMD's director of ERP regulation, agreed that, in interpreting and applying BOR Section 4.2.1.1, "the more important a wetland is the greater extent you would require elimination and reduction of impact." As reflected in Findings 17-19, supra, PDL explored several design modifications in order to reduce and eliminate impacts to wetland and other surface water functions. However, several options for further reducing and eliminating wetland impacts were declined. PDL declined to eliminate the swimming pool and move one or more buildings to the pool's location at the extreme northern tip of Harbour Pointe because that would not be a practicable means of reducing the Harbour Pointe footprint. First, the undisputed testimony was that a residential building could not be sited as close to the water's edge as a swimming pool could. Second, because it would block the view from some of Meristar's residential properties, and Meristar has the legal right to approve or disapprove PDL's development on Harbour Pointe. PDL declined to reduce the number of buildings because, without also reducing the number and/or size of the residential units, reducing the number of buildings would make it difficult if not impossible to accommodate all cul-de-sacs required by Lee County for use by emergency vehicles and meet parking needs beneath the buildings, as proposed. (In addition, it would reduce the number of prime corner residential units, which are more marketable and profitable.) PDL declined to further reduce unit size because a further reduction to 2,000 square feet would only reduce the footprint of the six proposed buildings by a total of 5,000 square feet--less than a ninth of an acre. Reducing unit size to much less than 2,000 square feet would make it difficult if not impossible to market the condos as "luxury" units, which is what PDL says "the market" is demanding at this time (and also what PDL would prefer, since it would maximize PDL's profits for the units.) But it was not proven that smaller condos could not be sold at a reasonable profit. PDL declined to reduce the number of condo units at Harbour Pointe (while maintaining the conservation easement on the remainder of PDL's acreage, which would not allow PDL to develop all of the 24 dwelling units it wants to develop and is entitled to develop on its 78 acres, according to Lee County). However, it was not proven that such an option for further reducing and eliminating wetland impacts would not be technically feasible, would endanger lives or property, or would not be economically viable. With respect to economic viability, SFWMD generally does not examine financial statements or profit-and-loss pro formas as part of an analysis of a site plan's economic viability. This type of information is rarely provided by an applicant, and SFWMD does not ask for it. As usual, SFWMD's reduction and elimination analysis in this case was conducted without the benefit of such information. Rather, when PDL represented that any reduction in the number of units would not be economically viable, SFWMD accepted the representation, judging that PDL had done enough elimination and reduction based on the amount of wetland impacts compared to the amount of wetlands preserved, in comparison with other projects SFWMD has evaluated. As Ms. Bain understands it, "it's almost like we know it when we see it; in that, you wouldn't ask an applicant to build a ten-mile bridge to avoid a half an acre wetland impact, so something that's so extreme that's obvious, rather than how much profit would a particular applicant make on a particular project." Although SFWMD did not inquire further into the economic viability of modifications to reduce and eliminate wetland and surface water impacts, Petitioners and Intervenor raised the issue and discovered some profit-and-loss pro formas that were presented and addressed during the hearing. A pro forma prepared in August 2003 projected a profit of $2.79 million for the first 8 of 12 units and an additional $1.72 million profit on the next four units (taking into account construction of a drawbridge and road to the west at a cost of $1.8 million). This would result in a total profit of $4.51 million, less $800,000 for a reserve to pay for maintenance of the drawbridge (which PDL said was required under timeshare laws). Another pro forma prepared in February 2004 projected profits of $11.99 million on 16 "big-sized" units (3,000 square feet), $11.81 million on 20 "mid-sized" units (2,200 square feet), and $13.43 million on 24 "mixed-size" units (16 "mid- sized" and 8 "small-sized" at 1,850 square feet), all taking into account the construction of the drawbridge and road at a cost of $1.8 million. After production of the earlier pro formas during discovery in this case, PDL prepared a pro forma on June 7, 2006. The 2006 pro forma projected net profit to be $4.9 million, before investment in the property. However, PFL did not make its investment in the property part of the evidence in the case. In addition, Petitioners and Intervenor questioned the validity of the 2006 pro forma. PDL answered some of the questions better than others. To arrive at the projected net profit, PDL projected significantly (33%) higher construction costs overall. The cost of the drawbridge and road to the west was projected to increase from $1.8 million to $2.5 million. Based on its experience, PDL attributed the increase in part to the effect of rebuilding activity after Hurricane Charlie and in part to the effect of Sanibel Causeway construction (both increased overweight charges and limitations on when construction vehicles could cross the causeway, resulting construction work having to be done at night, at a significantly higher cost). At the hearing, PDL did not present any up-to-date market surveys or other supporting information on construction costs, and the Sanibel Causeway construction is expected to be completed before construction on the Harbour Pointe project would begin. In addition, without a full enough explanation, PDL replaced the bridge operation and maintenance reserve of $800,000 with an unspecified bridge reserve fund of $2 million. On the revenue side of the 2006 pro forma, gross sales of $1.9 million per unit were projected, which is less than PDL was projecting per square foot in February 2004, despite the assumed increased construction costs. PDL also attributes this to the effects of Hurricane Charlie. Again, there were no market surveys or other information to support the pricing assumptions. Besides predicting lower price potential, the 2006 pro forma deducts a pricing contingency of $2.3 million. PDL did not calculate or present evidence on whether it could make a profit building and selling 16 or 20 units, thereby eliminating a building or two (and perhaps some road and stormwater facility requirements) from the project's footprint. The absence of that kind of evidence, combined with the unanswered questions about the 2006 pro forma for the maximum number of units PDL possibly can build, constituted a failure to give reasonable assurance that wetland and surface water impacts would be reduced and eliminated by design modifications to the extent practicable, especially given the very high importance of the wetlands being impacted. Public Interest Test An ERP applicant who proposes to construct a system located in, on, or over wetlands or other surface waters must provide reasonable assurances that the project will “not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest.” § 373.414(1)(a), Fla. Stat.; Rule 40E-4.302(1)(a); and SFWMD BOR Section 4.2.3. This is known as the “Public Interest Test,” and is determined by balancing seven criteria, which need not be weighted equally. See Lott v. City of Deltona and SJRWMD, DOAH Case Nos. 05-3662 and 05-3664, 2006 Fla. Div. Adm. Hear. LEXIS 106 (DOAH 2006). The Public Interest criteria are as follows: Whether the activity will adversely affect the public health, safety or welfare or the property of others. There are no property owners adjacent to the site, and the closest property owners to the site are located across the inlet which connects Bryant Bayou to Pine Island Sound. While mangrove wetlands generally provide maximum protection from hurricanes, it does not appear from the evidence that existing conditions would provide appreciably more protection that the conditions contemplated by the proposed ERP. Otherwise, the project would not adversely affect the public health, safety or welfare, or property of others. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed ERP would impact (fill and destroy) 2.98 acres of very important, high quality mangrove wetlands. Even with the restoration or creation of .7 acre of probable former wetlands and improvements in the hydrologic connection of the 36.5-acre preserved wetland (Parcel A) to Pine Island Sound, the proposed ERP probably will have a negative effect on the conservation of fish and wildlife, including listed species. However, the negative effect would not be considered "adverse" if the elimination and reduction requirements of BOR 4.2.1.1 are met. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed drawbridge will be constructed over the inlet connecting Bryant Bayou with Pine Island Sound, a distance of approximately 65 feet. Boaters use the inlet for navigation. However, by its nature, a drawbridge allows for and not adversely affect navigation. The proposed ERP does not contain specifics on operation of the drawbridge, but PDL's consultant, Mr. Erwin, testified that there would be no adverse effect on navigation, assuming that the bridge would remain in the open position between use for crossings by road. The drawbridge would not adversely affect the flow of water or cause harmful erosion or shoaling. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The question whether the proposed ERP will adversely affect fishing or recreational values is informed by both the UMAM functional assessment and the reduction and elimination analysis. If impacts to wetlands and surface waters are reduced and eliminated, and offset by mitigation, there should be no significant adverse effects on fishing and recreational values. Whether the activity will be of a temporary or permanent nature. The proposed development is permanent in nature. vi. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes. There are no significant archaeological resources on the Harbour Pointe project site. Although shell scatter left by the Calusa Indians has been found on Parcel A, they have been evaluated in the permit application process by Corbett Torrence, an archeologist, and found to be of limited historical or archaeological value. The reduced scope of the project avoids most of these areas. The proposed ERP will, however, enhance significant archaeological resources by placing a conservation easement on Parcel C, which is the site of the Chadwick Mound, one of the largest Calusa Indian mounds in Lee County. Further studies of this site could lead to a much better understanding of the Calusa culture. This Indian mound is a very valuable historical treasure, and its protection through inclusion in a conservation easement is very much in the public interest. vii. The current condition and relative value of functions being performed by areas affected by the proposed activity. This subject also was considered in the reduction and elimination analysis and in the UMAM functional assessment. As in the Findings the current condition and relative value of the functions being performed by the areas affected by the proposed activity are very valuable. That is why the reduction and elimination analysis is particularly important in this case. Assuming appropriate reduction and elimination, mitigation according to the UMAM assessment can offset unavoidable impacts to the functions performed by the areas affected by the proposed activity. Standing of CCA, SCCF, and CSWF CCA, SCCF, and CSWF each has at least 25 current members residing within Lee County and was formed at least one year prior to the date of the filing of PDL's application. CCA's mission statement includes protection of "our residents' safety, the island ecology, and the unique island ambience . . . ." CCA also is dedicated to "preserving and expanding, where possible, the amount of native vegetation on Captive Island" and preservation of natural resources and wildlife habitat on and around Sanibel and Captiva Islands. SCCF's mission is the preservation of natural resources and wildlife habitat on and around Sanibel and Captiva. It manages just over 1,800 acres of preserved lands, including mangrove forest habitat similar to that being proposed for development by PDL. Management activities involve invasive non- native plant control, surface water management, prescribed burning, native plant habitat restoration and wildlife monitoring. CSWF's purpose is to sustain and protect the natural environment of Southwest Florida through policy advocacy, research, land acquisition and other lawful means. Its four core programs are: environmental education; scientific research; wildlife rehabilitation; and environmental policy. Of CCA's 464 members, approximately 115 live within the boundaries of South Seas Plantation/Resort. Approximately 277 of SCCF's 3,156 members live on Captiva Island, and 40 live within the boundaries of South Seas Plantation/Resort. The members of CCA and SCCF who own property on Captiva Island rely on the mangrove systems for protection from storms. A substantial number of the Captiva Island residents and the other members of CCA and SCCF engage in recreational activities in the vicinity of PDL's property, including boating, fishing, bird-watching, wildlife observation, and nature study that would be adversely affected by significant water quality and wetland impacts from the proposed ERP. CSWF has 5,600 family memberships, approximately 400 in Lee County, and 14 on Sanibel. No members live on Captiva Island. There was no evidence as to how many of CSWF's members use the natural resources in the vicinity of the proposed ERP for recreational purposes or otherwise would be affected if there are water quality and wetland impacts from the proposed ERP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the proposed ERP be denied; however, if wetland and surface water impacts are reduced and eliminated to the extent practicable, the proposed ERP should be issued with the additional conditions, as represented by PDL's witnesses: that the proposed drawbridge be left drawn except when in use for road access; that construction access be via the proposed drawbridge only; and that there be no construction dewatering. DONE AND ENTERED this 8th day of November, 2006, 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 8th of November, 2006.
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact The Petitioner is the owner of Lot 28, Hidden Bay Subdivision, Martin County, Florida. On July 19, 1990, Petitioner filed an application with the Respondent for a dredge and fill permit to construct on the wetland portion of his lot a single family dwelling on stilts, a garage, and a connecting driveway to an existing roadway. The application also seeks a permit to retain a roadway that was constructed on the property before the Respondent asserted jurisdiction over the property. The existing roadway is 25 feet wide and 510 feet long and remained in existence at the time of the formal hearing. The connecting driveway on the wetlands portion of the property would require 40 cubic yards of fill. The following, taken from the Notice of Permit Denial entered by Respondent, accurately describes the proposed project: The proposed project will entail the temporary placement of 500 cubit yards of clean fill in order to set piles for a proposed stilt house. Additional fill (40 cubic yards) is proposed for a driveway to access a proposed garage. Riprap is proposed along the east slope of the driveway and along the northwest slope under the proposed stilt house. In addition, 186 cubic yards of the existing unauthorized fill road is proposed to remain. Total acreage to be impacted by this project is .092 acres. Petitioner's lot fronts Bessey Creek and is located in Section 1, Township 38 South, Range 40 East, in Palm City. Petitioner's lot is located approximately 2,200 feet south of the C-23 Canal on Bessey Creek. Bessey Creek is designated a Class III water. Bessey Creek combines with other tributaries and ultimately discharges into the North Fork of the St. Lucie River, which is designated an Outstanding Florida Water. Petitioner's lot consists of 1.82 acres. Respondent has asserted jurisdiction over approximately 1.3 acres of Petitioner's lot on the grounds that it is a fresh water wetland. Petitioner does not challenge Respondent's asserted jurisdiction in this proceeding. The Respondent has jurisdiction over dredge and fill activities conducted on the portion of Petitioner's lot that is at issue in this proceeding. This project is not exempt from permitting procedures. A dredge and fill permit is required for the proposed construction. Prior to applying for this permit, Petitioner contacted James McElheny, a landscape architect, who assisted Petitioner in drawing up the plans for the house, the driveway, and the garage that Petitioner desired to construct on the property. Without being aware that a permit from the Respondent would be required, Petitioner constructed a driveway on a portion of his property that was within the permitting jurisdiction of Respondent. This driveway extended to the landward end of a boardwalk that terminated as a dock in Bessey Creek. After Petitioner became aware of the need for a permit, he removed the filled driveway to a point that Martin County and Respondent agreed was appropriate. A portion of the driveway remained on property within the permitting jurisdiction of the Respondent at the time of the formal hearing. The plan prepared by Mr. McElheny also depicted this existing, unauthorized roadway. Petitioner's application seeks, in part, a permit to retain this driveway. On June 10, 1991, Respondent issued its Notice of Permit Denial based on the Respondent's conclusion that the Petitioner had failed to provide the required assurances in Sections 403.918(1) and (2), Florida Statutes. The Notice of Permit Denial provided, in pertinent part, as follows: The Department hereby denies the permit for the following reasons: This project is expected to have both short and long term impacts to biological resources and water quality. The total acreage to be impacted by this project is .092 acres. In addition, the applicant has not provided reasonable assurance that the project is not contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. Pursuant to 403.919, F.S. which gives the Department the authority to examine secondary impacts, the Department has concerns about additional wetland resource and water quality impacts that may result from this project. Floodplain areas are essential to the river system and provide important functions for the environment. The floodplain serves as a buffer system in high tide and storm events. It also serves as a source of detrital input which supports the freshwater and estuarine food chains. In addition, these areas act to improve water quality by stabilizing sediment and filtering upland runoff. Long-term effects of the proposed project would include a decrease in the productivity of the system, as well as a decrease in the filtering and stabilizing capabilities of the system. Water quality degradation is also expected to occur with upland runoff from pesticides, fertilizers, sewerage and petroleum products. Floodplain wetlands also provide a habitat for a wide variety of reptiles, amphibians, birds, crustaceans and mammals. This would eliminate this wetland habitat. This project is expected to be in violation of the following Florida Statutes and Florida Administrative Code Rules: 403.918 Criteria for granting or denying permits 17-312.080 Standards for Issuance or Denial of Permit 17-312.300(3) Mitigation Intent 17-302.560 Criteria: Class III waters The Department has determined that the following changes to the project make the project permittable. Modify the project to reduce or eliminate adverse environmental impact by: Removing the unauthorized fill road from water of the state. Relocate the proposed house to utilize as much upland area on the property as possible. Relocate the garage and access driveway to an upland area [and] eliminate or modify the garage and access road to reduce impacts. Section 403.918, Florida Statutes, provides the following permitting criteria pertinent to this proceeding: A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. . . . A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. . . . (a) In determining whether the project will adversely affect the public health, safety, or welfare or the property of others . . . the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others. Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitat; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Respondent is entitled to consider the cumulative impact of the proposed project pursuant to Section 403.919, Florida Statutes, which provides as follows: The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider: The impact of the project for which the permit is sought. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought. The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations. The residence that Petitioner proposes to build on the wetland portion of the property will be constructed on pilings so that the underside of the house will be 12 feet above the ground. There will be a total of 12 pilings, with each piling being 10 inches square. The "footprint" of the house will be 1,654 square feet. If the project is permitted, best management practice will require that a silt screen be erected around the construction site during construction to prevent silt runoff. The proposed site for the house is located in a natural clearing that would require minimal clearing. If the project is to be permitted in this wetland, the site selected by Petitioner is the best site with the least impact on the wetland. Petitioner would be required to remove up to two laurel oaks and seven red maple trees. These are relatively small trees, and both species are common. Petitioner would also be required to remove shrub of no particular unique value. Petitioner proposes to mitigate the removal of the trees by replanting on the property trees that were removed in a 2-1 ratio, so that 6 laurel oaks and 14 red maples would be replanted. Petitioner also proposes to revegetate the area beneath the residence, with the exception of the area required by the pilings. There are invasive, exotic plants on the property, such as Brazilian pepper, that would be removed by Petitioner and replaced by native plants. Ms. Jacqueline Kelly, the environmental specialist who reviewed this project for Respondent, visited the property approximately four times for a total of eight hours. Ms. Kelly is of the opinion that no dredge and fill activity should be permitted on jurisdictional wetlands. Ms. Kelly testified that she observed several species of birds while she was on the property, including a wood stork, a great blue heron, a little blue heron, a tricolored heron, an osprey, bluejays, woodpeckers, and grackles. The wood stork is an endangered species and the little blue heron, the tricolored heron, and the osprey are species of special concern. These birds do not nest on the subject property, and they were not observed in the area of the wetland on which the proposed construction would occur. There was no testimony upon which it can be concluded that the proposed construction will stop these species from coming on to the property. Because of the slope of the terrain, the upland portion of the Petitioner's property drains away from the wetland while the portion on which the proposed construction would occur drains toward the wetland. At the formal hearing, Petitioner suggested that any concerns as to drainage from the roof of the proposed residence could be discharged onto the upland portion of the lot by gutters. In his post-hearing submittal, Petitioner proposes that a condition of the permit be that "[a] roof drainage system be installed that allows the roof to drain to the upland portion of the project." The permitting requirement contained in Section 403.918(6), Florida Statutes, pertaining to historical or archaeological resources was not at issue in this proceeding. Ms. Kelly concluded that Petitioner has not provided reasonable assurances required by Section 403.918(2), Florida Statutes, as to each of the remaining permitting criteria. The rationale given by Ms. Kelly for her conclusions is not persuasive. The greater weight of the evidence is that all reasonable assurances required by Section 403.918(2), Florida Statutes, that were at issue in this proceeding have been provided as it pertains to the construction of the residence. The existing roadway was filled using shell rock which has stabilized. The mere existence of the roadway on the wetland property was not shown to violate any permitting criteria since this roadway does not violate water quality standards and is not contrary to the public interest. Petitioner did not, however, provide reasonable assurances that the utilization of this existing roadway as either a driveway or a parking area would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that such use would not be contrary to the public interest or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. Petitioner did not provide reasonable assurances that the construction of the garage or the extension of the driveway on these wetlands would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. John Meyer was of the opinion that the project should be denied because of the possible precedent that the permitting of this project may establish for other owners of wetland properties. There was no factual or legal basis established for this opinion. The permitting of this project has no value as a precedent for other projects. There was no evidence that there were other permit applications pending for other projects in wetlands, and Mr. Meyer could only recall one or two such applications ever having been filed. The greater weight of the evidence establishes that speculative cumulative impacts of this project does not prohibit the permit pursuant to the provisions of Section 409.919(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which permits Petitioner to construct the residence on stilts with the following conditions: That silt screens be erected during the actual construction to prevent silt runoff from the construction from reaching Bessey Creek. That a roof drainage system be installed that allows the roof to drain to the upland portion of the project. That Petitioner be required to mitigate for the removal of laurel oaks and red maple by replanting on the property two laurel oaks for each laurel oak removed and by replanting on the property two red maples for each red maple removed. That Petitioner be required to revegetate with native plants the area under the house except for the areas required for the stilts. IT IS FURTHER RECOMMENDED that Respondent deny a permit to construct a garage or extend the existing roadway. IT IS FURTHER RECOMMENDED that Respondent permit Petitioner to retain the existing roadway on the condition that the roadway not be utilized as either a driveway or as a parking area for motor vehicles. DONE AND ENTERED this 12th day of January 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of January 1994.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
