The Issue The issue is whether the Department should issue Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 43-0197751-003 to Reily.
Findings Of Fact Parties The Department is the agency that approved the permit at issue in this proceeding. The Department is responsible for protecting the water resources of the state in conjunction with the water management districts, and it is also responsible for authorizing the use of sovereignty submerged lands pursuant to a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund. The activities authorized by the permit are as follows: The purpose of the project is to install a 395 linear foot upland retaining wall, with one 10 linear foot return, located at least 5-feet landward of the Mean High Water Line, and an 85 linear foot seawall, with one 10 linear foot return, located at the Mean High Water Line. Riprap shall be installed at a 2:1 (Horizontal:Vertical) slope along the 85 linear foot seawall, and will extend out a maximum of 4-feet waterward of the toe of the new seawall. [3] Reily is the applicant for the permit. Reily owns approximately 17.74 acres of property along Indian River Drive in Jensen Beach, just north of the Jensen Beach Causeway. The Reily property extends from the Indian River on the east to Skyline Drive on the west. Indian River Drive runs north and south through the east side of the property. The Reily property to the east of Indian River Drive is undeveloped except for an existing restaurant, Dena’s, which is on the southern end of the property. There is an existing “RV park” on the Reily property to the west of Indian River Drive. The project will be located to the east of Indian River Drive. That portion of the Reily property is approximately one acre in size, and is only 149 feet wide at its widest point. The property is 24 feet wide at its narrowest point, and more than half of the property is less than 68 feet wide. Petitioners live in single-family homes to the west of the Reily property. Each of their homes is within 300 feet of the Reily property to the west of Indian River Drive, but more than a quarter of a mile from the property on which the permitted activities will be located. Petitioner Anthony Parkinson sometimes drives by the property where the permitted activities will be located when he takes his daughter to school; he has had breakfast at Dena’s several times; he looks at the property from the causeway; and, on at least one occasion, he and his daughter looked at vegetation in the water adjacent to the Reily property for a school project. Mr. Parkinson testified that the project will negatively affect his quality of life because he “came to Jensen Beach because of the natural shoreline and the protection that it afforded to residents in terms of natural beauty” and that, in his view, the project “just adds to the incredible bulk that we have here in the property in terms of building in our natural shoreline.” Petitioner Michael Cilurso drives by the property where the permitted activities will be located on a fairly regular basis. He goes onto the property “occasionally” to “look around.” He has waded in the water adjacent to the property and has seen blue crabs, small fish, and underwater vegetation. Mr. Cilurso testified that the project will affect him in two ways: first, he will no longer be able to “go from the road and just walk down and wade around in [the river] and enjoy the natural resources;” and second, the proposed development of the overall Reily property will affect his “quality of life” because “the density [is] going to be more than what we thought would be a fit for our community.” Petitioner Thomas Fullman can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.” The Permit (1) Generally The permit authorizes the construction of an 85-foot- long seawall and a 395-foot-long retaining wall on the Reily property and the placement of riprap on the sovereignty submerged lands adjacent to the seawall. The seawall will be located on the mean high water line (MHWL). The riprap will be placed adjacent to the seawall, below the MHWL, and will consist of unconsolidated boulders, rocks, or clean concrete rubble with a diameter of 12 to 36 inches. The retaining wall will be located five feet landward of the MHWL, except in areas where there are mangroves landward of the MHWL. In those areas, the retaining wall will be located "landward of the mangroves". The permit does not require the retaining wall to be any particular distance landward of the mangroves or even outside of the mangrove canopy. The drawings attached to the permit show the retaining wall located under the mangrove canopy. The permit does not authorize any mangrove trimming. The areas landward of the seawall and retaining wall will be backfilled to the level of Indian River Drive. There will be swales and/or dry retention areas in the backfilled areas to capture storm water and/or direct it away from the river. The retaining wall will connect to an existing seawall on the Conchy Joe property immediately to the north of the Reily property. The seawall will connect to the approved, but not yet built seawall on the Dutcher property immediately to the south of the Reily property. The permit requires the use of erosion control devices and turbidity curtains during the construction of the walls in order to prevent violations of state water quality standards. (2) Permit Application and Review by the Department On or about June 23, 2005, Reily sought a determination from the Department that the seawall and retaining wall were not subject to the Department’s permitting jurisdiction. The project, as initially proposed, did not include the placement of riprap along the seawall. The Department informed Respondent in a letter dated October 11, 2005, that “the proposed seawall is within the Department’s jurisdiction.” The letter further stated that the Department was going to “begin processing [the] application as a standard general permit,” and it requested additional information from Reily regarding the project. The Department’s request for additional information (RAI) asked Reily to “justify the need for a seawall” and to “provide a detailed explanation” as to why the “use of vegetation and/or riprap is not feasible at the site” for shoreline stabilization. Reily responded as follows: Recent hurricanes have destroyed any vegetation that existed within the area of the proposed seawall. Shoreline has been lost and the DOT has had to backfill nearby upland areas and repair the roads due to significant erosion. The application is proposing to place riprap along the foot of the proposed seawall. There is no reason to believe that there will not be more storms in the near future and it is the applicants’ [sic] position that the seawall for this area is the only way to assure permanent shoreline stabilization and would be in the public’s best interest. The RAI also asked Reily to provide “a detailed statement describing the existing and proposed upland uses and activities.” (Emphasis in original). In response, Reily stated: “The existing upland use is an R.V. resort complex. The proposed use will remain the same.” The RAI also asked Reily to “provide details on the current condition of the shoreline at the site, including the location of mangroves and other wetland vegetation" and to "indicate if any impacts to these resources are proposed.” (Emphasis supplied). In response, Reily stated: “Please see plan view drawing sheet 2 of 4 that clearly shows that the proposed retaining wall will be located landward of the existing mangroves.” The sheet referenced in the response to the RAI does not show the location of wetland vegetation as requested by the Department. The referenced sheet is also inconsistent with other drawings submitted by Reily (e.g., sheet 3 of 4), which show that the proposed retaining wall will be located under the mangrove canopy, not landward of the existing mangroves. Reily’s response to the RAI was submitted on or about February 23, 2006. The Department gave notice of its intent to issue the permit on April 19, 2006. The permit included a number of general and specific conditions imposed by the Department. The permit states a petition challenging the issuance of the permit must be filed “within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.” Notice of the Department’s intent to issue the permit was not published, and the record does not establish when Petitioners received written notice of the permit and the “notice of rights” contained therein. Mr. Cilurso acknowledged that he “found out about the DEP permit to Mr. Reily [approximately] six or eight months before [his] deposition in October [2006]” and then discussed it with the other Petitioners, but that testimony does not establish when the Petitioners received actual written notice of the permit. Petitioners’ challenge to the permit was filed with the Department on or about July 3, 2006. (3) The Related Pitchford’s Landing Project Contrary to the representation made by Reily to the Department during the permitting process, the evidence presented at the final hearing establishes that Reily is proposing to change the use of the upland property from an RV park to a residential development known as Pitchford’s Landing. A master site plan for the Pitchford’s Landing development was submitted to Martin County for approval in April 2006. The site plan (Pet. Ex. 10) shows extensive residential development to the west of Indian River Drive, including single- family lots and multi-story condominium buildings; construction of a sidewalk, bike path, pool, cabana, public pier, and riverwalk to the east of Indian River Drive; the refurbishment of Dena’s restaurant; and the "proposed seawall." Petitioners were aware that the plans for Pitchford’s Landing included a seawall by April 2006, but the evidence was not persuasive that they had received written notice of the Department’s intent to issue the permit at that time. The Pitchford’s Landing development will require changes to the land use designation of the Reily property in the Martin County Comprehensive Plan as well as zoning changes. Those local approvals had not been obtained as of the date of the final hearing. The plans for the Pitchford’s Landing development are being revised based, at least in part, on opposition from Petitioners and others involved in an “association” known as The Jensen Beach Group. Petitioners Cilurso and Fuller are active members of the group, and Petitioner Parkinson has also participated in the group’s activities. Bruce Jerner, one of Reily’s consultants, testified to his understanding that the pool, cabana, and riverwalk shown on the master site plan are being removed from the Pitchford’s Landing development. However, there is no evidence to suggest that the Reily property to the east of Indian River Drive and/or the other improvements on that property (including the hardened shoreline authorized by the permit) are being removed from the Pichford’s Landing develoment. The more persuasive evidence establishes that the proposed seawall, retaining wall, and riprap are part of the larger Pitchford’s Landing development. The walls were referred to on the master site plan for the development; they were depicted and discussed in an advertising brochure as an amenity of the development; and signs advertising Pitchford’s Landing are located on the Reily property to the east of Indian River Drive on which the seawall and retaining wall will be located. There is no evidence that the Pitchford’s Landing development has received a permit from SFWMD under Part IV of Chapter 373, Florida Statutes. The master site plan for Pitchford’s Landing shows several “dry retention areas” to the west of Indian River Drive, and as noted above, there will be swales and/or dry retention areas in the backfilled areas behind the retaining wall and seawall to capture storm water and/or direct it away from the river. It cannot be inferred from that evidence alone, however, that the Pitchford’s Landing development will require permits from SFWMD under Part IV of Chapter 373, Florida Statutes. Merits of the Project The Indian River in the vicinity of the Reily property is a Class III waterbody, an outstanding Florida water (OFW), and part of the Jensen Beach to Jupiter Inlet Aquatic Preserve. The Jensen Beach to Jupiter Inlet Aquatic Preserve is one of three aquatic preserves that encompass the Indian River Lagoon system that extends from Vero Beach to Jupiter Inlet. The Jensen Beach to Jupiter Inlet Aquatic Preserve is 37 miles long and encompasses approximately 22,000 acres of surface water area. The entire Indian River Lagoon system is 49 miles long, with approximately 33,000 acres of surface water area. The Management Plan that was adopted for the Jensen Beach to Jupiter Inlet Aquatic Preserve in January 1985 described the Indian River Lagoon system, and explained its ecological importance as follows: The Indian River Lagoon area is a long, shallow lagoonal estuary important in this region for its value to recreational and commercial fishing, boating and prime residential development. The preserve is in a rapidly growing urban area affected by agriculture and residential drainage. The majority of the shoreline is mangrove fringed, with scattered development in single family residences and a few condominiums. The lagoon is bounded on the west by the Florida mainland and on the east by barrier islands. The Intracoastal Waterway runs the length of the lagoon, which is designated as a wilderness preserve. The estuary is an important home and nursery area for an extensive array of fish and wildlife. The major problems in the continued health of this area include the construction of major drainage networks that have increased the fresh water flow into the estuary, and the loss of wetland areas and water quality degradation associated with agricultural drainage and urban runoff. Additionally, the Intracoastal Waterway and the maintained inlets have changed the historical flushing and circulation within the lagoon system. The Management Plan explained that the “major objectives of the aquatic preserve management program are to manage the preserve to ensure the maintenance of an essentially natural condition, and to restore and enhance those conditions which are not in a natural condition.” The Management Plan recognizes “the rightful traditional uses of those near-shore sovereignty lands lying adjacent to upland properties,” and with respect to bulkheads, the Management Plan states: Bulkheads should be placed, when allowed, in such a way as to be the least destructive and disruptive to the vegetation and other resource factors in each area. Approved uses which do destruct or destroy resources on state-owned lands will require mitigation. The mitigation will include restoration by the applicant or other remedy which will compensate for the loss of the affected resource to the aquatic preserve. Most of the shoreline along the Reily property is a gently sloping sandy beach that has been previously disturbed, and is largely barren of vegetation. There are, however, areas along the shoreline where dense vegetation exists, including wetland vegetation and three stands of mature red and black mangroves. Birds, fish, and wildlife have been observed on and around the Reily property. However, there is no credible evidence that any listed species use the uplands or near-shore waters where the project will be located. The sovereignty submerged lands immediately adjacent to the Reily property on which the riprap will be placed are barren, sandy, and silty. There are seagrasses in the vicinity of the Reily property, but they are 30 to 50 feet from the shoreline. The seagrasses include Johnson’s seagrass, which is a listed species. There are no significant historical or archeological resources in the vicinity of the Reily property, according to the Department of State, Division of Historical Resources. In 2004, Hurricanes Frances and Jean made landfall in Martin County in the vicinity of the Reily property. The hurricanes washed out portions of Indian River Drive, including a portion of the road approximately one-half mile north of the Reily property. After the hurricanes, Martin County considered placing bulkhead along the entire length of Indian River Drive to provide shoreline stabilization and to prevent further damage to the road in major storm events. The county did not pursue the plan because it determined that it was not financially feasible. The portion of Indian River Drive along the Reily property did not wash out during the 2004 hurricanes. Nevertheless, on November 4, 2004, because of concerns for the stability of the shoreline along the Reily property, the Department issued an Emergency Field Authorization to the prior owner of the property allowing the installation of 160 linear feet of riprap along the shoreline. The riprip authorized by the Emergency Field Authorization was to be placed considerably further landward than the structures authorized by the permit at issue in this case. The record does not reflect why the riprap was not installed. The evidence was not persuasive that the Reily property has experienced significant erosion or that the project is necessary to protect Indian River Drive or the upland property from erosion. The project will, however, have those beneficial effects. No formal wetland delineation was done in the areas landward of the MHWL or the areas that will be backfilled behind the proposed seawall and retaining wall and, as noted above, Reily did not identify the location of wetland vegetation and any impacts to such vegetation in response to the RAI. Mr. Jerner testified that, in his opinion, there are no wetlands landward of the MHWL in the area of the seawall, and that any wetlands in the area of the retaining wall are waterward of that wall, which will be at least five feet landward of the MHWL. The Department’s witness, Jennifer Smith, testified that it was her understanding that the wetlands did not extend into the areas behind the seawall or retaining walls, but she acknowledged that she did not ground-truth the wetland boundaries and that wetland vegetation appeared to extend into areas that will be backfilled. Petitioners’ expert, James Egan, testified that the wetlands likely extended into areas that will be backfilled based upon the topography of the shoreline and the wetland vegetation that he observed, but he made no effort to delineate the extent of the wetlands in those areas and he testified that he would defer to the Department's wetland delineation if one had been done. The Department’s wetland delineation rules in Florida Administrative Code Rule Chapter 62-340 contain a detailed quantitative methodology to be used in making formal wetland boundary delineations. That methodology is to be used only where the wetland boundaries cannot be delineated through a visual on-site inspection (with particular attention to the vegetative communities and soil conditions) or aerial photointerpretation in combination with ground truthing. Thus, the Department’s failure to do a formal wetland delineation (with soil sampling, etc.) in the project area was not per se inappropriate, as Mr. Egan seemed to suggest. That said, the more persuasive evidence fails to establish that Reily made an appropriate effort to delineate the landward extent of the wetlands in the project area. No delineation of the wetland areas was provided in response to the RAI, and Ms. Smith’s testimony raises more questions than it answers regarding the correctness of Mr. Jerner’s conclusory opinion that the wetland boundary is waterward of the retaining wall. Without an appropriate delineation of the wetland boundaries, it cannot be determined with certainty whether or not there are wetlands in the areas that will be backfilled. The evidence establishes there may be wetlands in those areas; and if there are, the impacts to those wetlands have not been assessed or mitigated. Riprap is a better method of shoreline stabilization than a vertical seawall without riprap. The riprap helps to prevent shoaling by absorbing wave energy, and it also provides habitat for benthic organisms, crustaceans, and small fish. Native vegetation provides these same benefits, and all of the experts agreed that it is the best method of shoreline stabilization from an environmental standpoint. The use of native vegetation to provide shoreline stabilization along the Reily property is not a reasonable alternative under the circumstances. First, the shoreline has not experienced any significant vegetative recruitment since the 2004 hurricanes. Second, the property is not wide enough to accommodate the amount of vegetation that would be needed to stabilize the shoreline. Third, the properties immediately to the north and south of the Reily property are already (or soon will be) protected by seawalls and/or riprap, rather than native vegetation. The project will not adversely affect the property of others. The evidence was not persuasive that the project will cause erosion or other impacts to the adjacent properties, particularly since the adjacent properties have, or soon will have hardened shorelines. The project will not adversely affect the conservation of fish and wildlife and, to the contrary, the riprap will provide a benefit to fish and wildlife by providing shelter and habitat for benthic organisms, crustaceans, and small fish. The project will not adversely affect endangered or threatened species or their habitat. The only listed species shown to exist in the vicinity of the project, Johnson’s seagrass, is 30 to 50 feet from the shoreline, which is too far away from the project to be affected even if, as suggested by Petitioners' experts, the impact of wave energy on the walls will cause increased turbidity and sedimentation. The project will not adversely impact the fishing or recreational values or marine productivity in the area. The waters in the vicinity of the project are not shellfish harvesting areas, and the riprap will provide beneficial habitat for small marine life. The project will not adversely affect navigation. The riprap will extend only four feet into the Indian River in an area of shallow water far from the channel of the river. The project will not cause harmful erosion or shoaling or adversely affect water quality in the area. The evidence was not persuasive that wave energy will routinely impact the retaining wall to an extent that will cause increased turbidity or sedimentation in the surrounding waters, and all of the experts agreed that the riprap will help to prevent this from occurring along the seawall. Moreover, the swales and/or dry retention areas behind the seawall and retaining wall will help to filter storm water runoff from Indian River Drive and the adjacent upland properties, which may enhance the water quality in the vicinity of the project. The project will not result in any adverse secondary or cumulative impacts to the water resources. The adjacent properties already have hardened shorelines. The permit conditions include adequate safeguards (e.g., turbidity curtains and erosion control devices) to protect the water resources in the aquatic preserve during construction of the project. Any impact (either positive or negative) of the project on the aquatic preserve and the Indian River Lagoon system as a whole will be de minimus in light of size of the system in comparison to the small size of the project and its location between two hardened shorelines near a man-made causeway.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing Petitioners’ challenge to the permit/authorization for a lack of standing, but if the Department determines that Petitioners have standing, it should issue a final order denying permit/authorization No. 43-017751-003 absent an additional condition requiring an appropriate wetland delineation to show that the upland aspects of the project will occur outside of the mangrove canopy and any other wetland areas landward of the MHWL. DONE AND ENTERED this 12th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2007.
Findings Of Fact Ben A. Posdal is the owner of property commonly known as 166 Brightwater Drive, in the City of Clearwater, Florida. On August 7, 1986, he applied for variances to construct two wooden decks on his property, located at the above address. The property which is the subject of the variance request is a building which contains four apartments, which are rented by Ben A. Posdal to various tenants. On August 28, 1986, the Development Code Adjustment Board (DCAB) denied the variance requested by Mr. Posdal on the grounds that he had not demonstrated a hardship and that he had not demonstrated that the requested variance would not violate the general spirit and intent of the Clearwater Land Development Code. On September 9, 1986, an appeal was filed by Ben A. Posdal from the decision of the Development Code Adjustment Board. The appeal alleges that the DCAB decision was arbitrary, capricious and unreasonable on the following grounds: Other properties allegedly are in violation of the back line setback regulations; The DCAB failed to give enough evidentiary weight to photographs he submitted; and Appellant allegedly is being deprived of the beneficial use of the property in a manner commensurate with the community. There are no physical conditions which are unique to the property. There is no particular physical surroundings, shape or topographical condition that would result in an unnecessary hardship upon the Appellant. Failure to obtain a variance would not impinge upon Appellant's use of the property in any way. The record on appeal contains competent, substantial evidence to support the DCAB decision. Nonconforming uses in the area of the subject property are legal nonconforming uses.
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Respondents qualify for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Respondents are guilty of the violations alleged in the Notice of Violation and Orders for Corrective Action issued by the Director of District Management for the Office of the DEP Northwest District on May 13, 2003.
Findings Of Fact Parties The Department of Environmental Protection (DEP) is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, Florida Statutes, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Respondent, Santa Rosa Three, Inc. (the Corporation), is the fee simple title holder of certain property in unincorporated Okaloosa County, Florida, located between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. The property includes the subject water body, Lake Blake. Santa Rosa II, Inc., is a corporate predecessor in interest to the Corporation. Respondent, Lee Maddan (Maddan), is a long-time resident of Okaloosa County. Maddan is the Petitioner in DOAH Case No. 03-1499. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name, and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially-created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's, the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued, a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the nearest surface waters of the State of Florida. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake resulted from collected rainfall, as well as underground water intrusion in the original borrow pit. At the present time, additional diverted stormwater runoff collects in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that former owner, Ron Blake, excavate the lake and make it ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots. Okaloosa County has installed at least seven pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976, utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake for use as part of its existing stormwater drainage system. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981) for "Blake Lake Modifications" which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984, DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all of the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001, letter, like the previous letter, was issued from DEP's Northwest District and signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the property and the lacustrine wetland. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001, letter, nor the subsequent October 24, 2001 letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time, Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County, an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's dredge and fill jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to an abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or only slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, for purposes of establishing DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria set in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State and in lacustrine wetland. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits, Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented the water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. Such discharged water from Lake Blake ultimately is conveyed through the Okaloosa County stormwater drainage system and released into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Respondents primarily rely on Rule 62-312.050(4), Florida Administrative Code, which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Respondents also cite Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Respondents cite statutory exemptions. The definition of "waters" which are regulated under Chapter 403, as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because of not only its "possible discharge" but because of its actual discharge on the surface waters of Cinco Bayou. Respondents also cite Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake at least since 1976 has been utilized as part of Okaloosa County's stormwater drainage system, which is located landward of Cinco Bayou, it was not designed or constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated or maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction.
Findings Of Fact The Applications. Permit DC51-189086 (Moon Lake Road Site). The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing. On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date. On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued. Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site). The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD. The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing. The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD. Permit DO51-199516 (Ryals Road Site). The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation. Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed. The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD. Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System. The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP. A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem. The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two. The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems. Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed. On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990. On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line." The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so. The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683. After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request. The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application. The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing. The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation. Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit. Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994. Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems. Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.) A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient. There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random. Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system. The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches. The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water. The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system. Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions. It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches. As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions. Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size. The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp. Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River. Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches. The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body. One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering. Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance. In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit. If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required. Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites. Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert. Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds. To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from .58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System. Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet. Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches. Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove. During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds. Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows: Site Visit Inches of rainfall Gallons of rainfall 4/15/91 3.58 9,786,659 7/11/91 5.41 14,789,337 7/12/91 5.60 15,308,742 8/27/91 2.91 7,955,078 10/12/93 1.02 2,788,378 12/7/93 0.03 82,011 The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts. It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site. Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed. Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. MGD. No load testing was done at Oakley Grove at more than .250 to .270 Even at the historical loading rate, the evidence did not reflect that the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted. In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom. It was, however, proven by evidence introduced as Department Exhibit 32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions. Alleged Settlement Offer. Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County. The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System. Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case. It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993. Ground Water Quality at Oakley Grove. During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates. Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time. On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993. The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site. The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively. Surface Water Quality Considerations. The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study. In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates. Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates. In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites. Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove: --At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen = 0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml. --At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml. --At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml. --At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml. --At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream. However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD). County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993: East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean 0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510- 3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean 352 per 100 ml. South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean 1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml. In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81). As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based. Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to .075 MGD.) In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed. The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions. The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County. As for pH, there was evidence that the background wetland had a pH of 5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units. Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units. Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all. The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts. The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state. Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters. Other Considerations at Moon Lake Road In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money. Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property. Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA"). Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD. The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System. Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site. If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply. Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner. Evidence on Elements of Estoppel. The "Representations." Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations. Saddlebrook Village Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87. Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions. Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area. The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards. Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions. Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters. Saddlebrook Village Percolation Pond System was never upgraded to the .250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites. Shady Hills Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD. The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89. The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards. Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards. Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters. The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit. Lake Padgett Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989. The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards). The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present. Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters. Construction of Oakley Grove The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89. The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD. The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards. Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition. Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD. The "Detrimental Reliance." The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993. Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000. In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about $2,600,000 after issuance of the construction permit for the Oakley Grove project. To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity. It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993. If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. Alleged Default Permit for Moon Lake Road. Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought. The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part: However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete. On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application. Subject Matter Index of Agency Orders. The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981. After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings. There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index. There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices. Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive. Alleged Biased Review. David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications. On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen. When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything. Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent. Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation. David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined. David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects. Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen. About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person." Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person. Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes. Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites. DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit. DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter. The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects. It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants. It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities. However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: In Case No. 92-1604: Denying the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study. If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170). Case No. 92-1653: Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study. Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD. Denying the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity. Case No. 92-1654: Denying, as moot, the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD. RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. Accepted and incorporated. Speculative and unnecessary. 6.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted but subordinate and unnecessary. 14.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-34. Accepted but subordinate and unnecessary. 35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 45.-53. Accepted and incorporated to the extent not subordinate or unnecessary. 54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done. 55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 59. Rejected as not proven. 60.-61. Accepted but subordinate and unnecessary. 62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done. 63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.") 77.-79. Accepted but subordinate and unnecessary. 80.-92. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 95.-113. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusions of law. First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law. Conclusions of law. 117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as designed, as permitted for construction, and as constructed, subject to available disposal capacity.) 123.-148. Accepted but subordinate and unnecessary. As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary. As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 154.-155. Accepted but subordinate and unnecessary. 156.-158. Accepted and incorporated to the extent not subordinate or unnecessary. 159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated. 160.-161. Accepted and incorporated to the extent not subordinate or unnecessary. 162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds. 163.-166. Accepted and incorporated. 167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water." Accepted but subordinate and unnecessary. Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied. Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. 173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.) Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven; also, subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law. Accepted but subordinate and unnecessary. 186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law. 188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and 100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered. 191.-192. Accepted and incorporated. 193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity. Accepted (assuming they are built as designed) and incorporated. Last word should be "dry"; otherwise, accepted and incorporated. Accepted and incorporated. 198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found. 202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.) 207.-211. Rejected as not proven. See 202.-206., above. 212. Accepted and incorporated. 213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above. 220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site. 227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters. 231.-232. Accepted and incorporated. 233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.) 235.-239. Accepted and incorporated to the extent not subordinate or unnecessary. 240.-243. Accepted but subordinate and unnecessary. 244. Accepted and incorporated to the extent not subordinate or unnecessary. 245.-248. Accepted but subordinate and unnecessary. 249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 250.-251. Rejected as not proven. 252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.) Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. 257.-258. Accepted but subordinate and unnecessary. 259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary. 260.-261. Accepted but subordinate and unnecessary. 262. Rejected as not proven. 263.-269. Accepted but subordinate and unnecessary. 270. Rejected as not proven. 271.-279. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.) Accepted and incorporated. As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 287.-289. Rejected as not proven and as conclusion of law. 290. Accepted and incorporated. 291.-293. Accepted and incorporated to the extent not subordinate or unnecessary. 294.-295. Conclusions of law. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated. 302. Accepted but subordinate and unnecessary. 303.-308. Rejected as not proven without WQBEL studies. Rejected as not proven. Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.) 311.-312. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven without WQBEL studies. 316.-317. As to (g) and (h), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 324. Conclusion of law. 325.-326. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary. 330.-331. Subordinate and unnecessary. See 353. 332. Rejected as not proven. 333.-334. Subordinate and unnecessary. See 353. 335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353. 351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 352.-353. Subordinate and unnecessary. See 353. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Conclusion of law. Accepted and incorporated. Accepted but subordinate and unnecessary. 361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary. 363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated. 372.-401. Accepted but subordinate and unnecessary. 402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.) 403.-405. Accepted and incorporated to the extent not subordinate or unnecessary. 406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated. 408. Rejected as not proven. See 406., above. 409. Rejected as not proven. See 407., above. 410.-416. Accepted but subordinate and unnecessary. 417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven. 422. Accepted but unnecessary. 423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary. 424. Assuming performance in accordance with the application, accepted but unnecessary. 425.-430. Accepted and incorporated to the extent not subordinate or unnecessary. 431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven. 432.-445. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) First sentence, rejected as not proven; second sentence, conclusion of law. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 457.-465. Accepted and incorporated to the extent not subordinate or unnecessary. 466.-470. Rejected as not proven without WQBEL studies. 471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies. 472. Rejected as not proven. See 310., above. 473.-475. Accepted but subordinate and unnecessary. 476. Rejected as not proven. 477.-478. Accepted but subordinate and unnecessary. Rejected as not proven (that the discharges are.) As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven without WQBEL studies. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. First sentence, accepted and incorporated; rest, rejected as not proven. 491.-493. Accepted and incorporated to the extent not subordinate or unnecessary. 494. Accepted and incorporated to the extent not subordinate or unnecessary. 495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven. 496.-499. Accepted and incorporated to the extent not subordinate or unnecessary. 500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary. 501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.) 502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.) 505.-509. Accepted and incorporated to the extent not subordinate or unnecessary. 510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above. 511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 512.-524. Accepted and incorporated to the extent not subordinate or unnecessary. 525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.) 526. Rejected as not proven that he was directed to "speak in favor of the County's permit application." 527. Accepted and incorporated to the extent not subordinate or unnecessary. 528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary. 529.-530. Accepted and incorporated to the extent not subordinate or unnecessary. 531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above. 532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 535. Accepted but subordinate and unnecessary. 536.-537. Rejected as not proven without WQBEL study. 538.-543. Accepted and incorporated to the extent not subordinate or unnecessary. 544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).) 545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary. 547.-552. Accepted and incorporated to the extent not subordinate or unnecessary. 553.-557. Accepted but moot and unnecessary. Rejected as not proven. Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. 563.-566. Accepted but moot, subordinate and unnecessary. 567. Subordinate to facts not proven. 568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary. 569. Rejected as subordinate to facts not proven. 570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary. 571.-573. Accepted but moot, subordinate and unnecessary. Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary. Accepted but moot, subordinate and unnecessary. Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary. Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary. Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary. Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary. Rejected as not proven. 581.-582. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and conclusion of law. 583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. 585. Accepted and incorporated to the extent not subordinate or unnecessary. 586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary. 587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or unnecessary. 591. Rejected as not proven. 592.-593. Accepted and incorporated to the extent not subordinate or unnecessary. 594. Rejected as not proven. 595. Accepted but moot, subordinate and unnecessary. 596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary. 597.-599. Accepted but moot, subordinate and unnecessary. 600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary. 601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or unnecessary. 603.-604. Rejected as not proven. Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 610.-620. Accepted and incorporated to the extent not subordinate or unnecessary. 621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. 623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.) Respondent's Proposed Findings of Fact. The Department's proposed findings of fact are numbered separately by facility: Oakley Grove Accepted and incorporated. "Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated. 3.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.) Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Subordinate to facts found. Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches. 13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary. 19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.) 26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.) 30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-36. Accepted. Largely subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusion of law. Accepted and incorporated. 40.-42. Conclusion of law. Accepted and incorporated. If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary. Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means. Accepted and incorporated to the extent not subordinate or unnecessary. 47.-49. Accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Accepted and incorporated to the extent not conclusion of law. 57.-58. Accepted and incorporated to the extent not conclusion of law. Rejected as conclusion of law and as not proven what is "typical." Accepted and subordinate to facts found. 61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 83.-102. Accepted and incorporated to the extent not subordinate or unnecessary. 103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 104.-106. Accepted and incorporated to the extent not subordinate or unnecessary. 107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.) Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (The manual was maintained at a different location.) Moon Lake Road 1.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. One was proposed in evidence presented at the hearing but not in the application. 15.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. "Any" is rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 30.-32. Accepted. Subordinate to facts found. Accepted and incorporated to the extent not conclusion of law. First sentence, unclear; second sentence, accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. 36.-38. Accepted and incorporated to the extent not conclusion of law. "Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others. Accepted and incorporated. 41.-43. Accepted and incorporated to the extent not subordinate or unnecessary. 44.-49. Accepted and incorporated to the extent not subordinate or unnecessary. 50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case. 53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.) 54.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Rejected as contrary to the greater weight of the evidence and facts found. 57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above. Rejected as contrary to the greater weight of the evidence and facts found. Accepted but subordinate and unnecessary. 61.-63. Rejected as contrary to the greater weight of the evidence and facts found. 64.-65. Accepted but subordinate and unnecessary. 66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient. Ryals Road 1.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated. Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 13.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15.-26. Accepted but moot, subordinate and unnecessary. 27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary. 28.-33. Accepted but moot, subordinate and unnecessary. 34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire de la Parte, Gilbert & Bales, P.A. P.O. Box 2350 Tampa, Florida 33601-2350 Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project 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; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The applicant proposes, on the west shore of the Indian River to: (1) Dredge an access channel 3' deep, 801 wide, and 1,500' long, Construct a vertical seawall of 600 linear feet along the waterward side of the proposed fill area, and Disposit some 4,000 cubic yards of spoil in a 200' x 400' area enclosed by the seawall. This proposed seawall will be in line with and connect to an existing seawall along the adjacent north property. A hydraulic dredge and a silt screen will be used during dredging operation. Petitioner acquired the submerged lands fronting his property on the west bank of the Indian River at Melbourne, Florida to the bulkhead line, by purchase from the Trustees of the Internal Improvement Trust Fund (IITF) in 1963 and 1964. The submerged land just north of Petitioner's property was likewise acquired from the Trustees, bulkheaded and filled, circa 1963 where a commercial marina is now operated by one Rathman. Indian River in the vicinity of Melbourne has become in the nature of a basin by reason of the Eau Gallie Causeway to the north and the Melbourne Causeway to the south. These causeways have materially reduced the flushing of this stretch of the Indian River and increased the turbidity of the water. Normal turbidity of the Indian River in the vicinity of the lands here involved is such that the bottom cannot be seen at depths greater than 1.5 to 2 feet. Surface drainage from U.S. 1, which runs just west of Shablowski`s property, and an area of some 5 square miles just west of U.S. 1 runs into the Indian River through culverts just north and south of Petitioner's property. No evidence was submitted that this surface runoff goes through debris or settling traps before being discharged into the Indian River. Rathman's marina and the area there filled is bounded on the south by a bulkhead normal to the shoreline of Indian River and extending into the river some 200 feet. This creates a pocket where some debris accumulates on the north end of Petitioner's property. Granting the applied for permit would result in moving this pocket 400 feet to the south. Although the Indian River, between the causeways above noted, is in an ecologically stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead. Cuban Shoalweed grows in the shallow water areas of the Indian River (less than 3 feet deep) and provides a source of food to the marine life in the area. The submerged lands owned by Petitioner are sparsely covered (10 percent to 25 percent) with patches of Cuban Shoalweed. The area proposed for filling has an average depth of approximately 1.5 feet with some areas near the eastern edge of the property having depths of up to 3.5 feet. However, these are primarily holes or former channels. A significant amount of animal life exists on the property in question. These consist of blue crabs and numerous small fishes such as silversides, mojarra, needlefish, mullet, sheepshead, leather jack and snook. Benthic samples collected include polychaetes, amphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish. Petitioner's proposal to dredge an access channel 3 feet deep, 80 feet wide, and 1500 feet long from the eastern edge of the property riverward will not have a significant adverse impact on marine biological resources or water quality. (Exhibit 3). Silt screens will be used in connection with the hydraulic dredging and the shallow depths to which Petitioner proposes to dredge will not cause permanent damage to the bottom grasses, if any, in the dredged area. The vertical bulkhead proposed by Petitioner would increase the possibility of scouring in the areas; however Petitioner agreed at the hearing to install rip rap along this bulkhead. This will eliminate scouring and promote the propagation of marine life. Granting the application will result in the loss of approximately 2 acres of moderately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways. Respondent generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant. Petitioner has not determined the use to which the property will be put if the application is granted. At such time as construction is instituted DER can establish requirements for surface water runoff containment to protect the receiving waters.
The Issue The issue to be determined in this case is whether the Respondents, Florida Department of Transportation (“FDOT”) and Palm Beach County (also referred to as “the Applicants”), are entitled to the issuance of an Environmental Resource Permit (“ERP”) to construct an extension of State Road 7 (“SR 7”) and its associated surface water management system in Palm Beach County.
Findings Of Fact The Parties The City is a municipality incorporated under Florida law. The District is a regional agency with the authority to regulate the construction, operation, and maintenance of any surface water management system pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Titles 40E and 62. FDOT is an agency of the state of Florida charged with the establishment, maintenance, and regulation of public transportation. It is a co-applicant for the ERP permit. Palm Beach County is a political subdivision of the State of Florida, and is a co-applicant for the ERP permit. Background State Road 7 Extension The ERP was issued by the District for an 8.5-mile extension of SR 7 between Okeechobee Boulevard and Northlake Boulevard in Palm Beach County. The purpose of the proposed roadway is to relieve traffic now moving through rural residential areas and two large residential developments known as The Acreage and Jupiter Farms. The proposed roadway would also improve hurricane evacuation by providing additional capacity and connectivity, and reduce emergency response time in the rural residential areas. The proposed roadway alignment was selected by FDOT after a multiyear corridor study under a National Environmental Protection Policy Act process. Four corridors were considered using federal selection criteria that addressed social, environmental, property, physical, and financial impacts. There are two segments of the proposed roadway covered by the ERP. The southern segment would add two more lanes to the existing two-lanes of SR 7 from Okeechobee Boulevard North to 60th Street North, just south of the M-Canal. This segment is 4.4 miles long. The southern segment is not at issue in this case. The northern segment would extend four lanes of SR 7 east from 60th Street North about one mile, and then north 3.1 miles to Northlake Boulevard. This is the roadway segment challenged by Petitioner. Hereafter, all references to “the Project” are to the northern segment. The Project includes a raised roadway, median, sidewalks, bike lanes, and stormwater swales. It also includes a bridge over the M-Canal and a bridge over a water control outfall. The Project would be constructed in an existing right- of-way (“ROW”). FDOT owns a ROW that is approximately 200 feet wide. The County owns an adjacent 120-foot-wide ROW, so that the total width of the Project ROW is 320 feet. Running north/south within the ROW is a dirt service road, a ditch, and a fence. Much of the vegetation in the ROW is dominated by invasive and exotic plant species, including Melaleuca, Carolina Willow, Brazilian Pepper, and Australian Pine. The Ibis Development West of the Project ROW is the 1,958-acre Ibis Golf and Country Club residential development (“Ibis”). In 1989, an ERP was issued for Ibis’ surface water management system (“the Ibis system”). The Ibis system includes almost 300 acres of interconnected lakes that provide water management and water quality treatment for Ibis. The 1989 permit required the Ibis system to be sized to receive and treat runoff from a segment of Northlake Boulevard and from an existing two-lane road off of Northlake Boulevard that serves the commercial area of Ibis, which is directly north of the Ibis residential area. The Ibis system was also required to receive and provide water treatment and storage for the stormwater runoff from 46.8 acres of the ROW for SR 7. The parties introduced evidence about modifications to the 1989 permit, which the City contends reduced the treatment capabilities of the system. It is found from the preponderance of the evidence that the original system and its modifications continued to meet design requirements to store and treat future runoff from 46.8 acres of the SR 7 ROW.1/ When the water in the Ibis lakes reaches elevation 17.5 feet NGVD (National Geodetic Vertical Datum), pumps at two pump stations at the south end of Ibis begin pumping water over a berm into Ibis Preserve, a 366-acre natural area directly south of Ibis. Water is retained in Ibis Preserve unles it exceeds an elevation of 18.5 feet, when it then passes over an outfall structure into the Grassy Waters Everglades Preserve (“Grassy Waters”) to the east. Ibis Preserve provides additional water quality treatment for the water pumped from Ibis, but this additional treatment was not part of the calculation of water quality management for Ibis. The Ibis system was required to meet District permitting criteria before discharge to Ibis Preserve. The North Palm Beach County Improvement District (“Improvement District”) owns and has operational and maintenance responsibility for the Ibis system. It also owned and managed Ibis Preserve, but transferred ownership and management of Ibis Preserve to the City in 2004. Grassy Waters/Water Catchment Area To the east of the Project is the City-owned “Water Catchment Area,” which covers about 14,700 acres or 23 square miles. The Water Catchment Area is owned by the City and is part of its public drinking water supply system. Water in the Water Catchment Area flows to Lake Mangonia where it is withdrawn, treated, and then delivered to residents and businesses in the City, the Town of Palm Beach, and the Town of South Palm Beach. There is a statement in the Project application that Grassy Waters refers only to the open water marsh within the Water Catchment Area. The Water Catchment Area includes other habitat types besides open marsh. Most of the information in the record indicates that Grassy Waters and the Water Catchment Area have the same boundaries. Therefore, in this Recommended Order, Grassy Waters and the Water Catchment Area are treated as being two names for the same area. Grassy Waters was once connected to the Everglades and large portions of it have the same characteristics, being an open water marsh with an extended hydroperiod. It is oligotrophic, meaning it is low in nutrients and has an ecosystem adapted to low nutrient conditions. It was undisputed that most areas of Grassy Waters are of high or even pristine environmental quality. Grassy Waters has periphyton, an assemblage of algae that only survive in phosphorous levels of less than 10 parts per billion (“ppb”). Periphyton is the base of the food chain in the open water marsh area of Grassy Waters and is consumed by apple snails and many invertebrates and fish. Grassy Waters has a visitor and nature center and provides recreational opportunities, such as canoeing, hiking, and bird watching. There appeared to be disagreement about whether the Project ROW is located in Grassy Waters or adjacent to it. The ROW is not within Grassy Waters, it is adjacent. However, the wetlands and other surface waters within the ROW are hydrologically connected to Grassy Waters. In the western part of Grassy Waters, which ends at the Project ROW, there are hammock islands and hydric pine flatwoods. The City contends these areas and the rest of the ROW were historically open water marsh, but were changed by human activities. The more persuasive evidence is that this western area was not all open marsh, historically. It was an area of natural transition from open water marsh to other habitat types. Ibis Impacts to Grassy Waters The parties disputed whether the Ibis system is a “failed system.” This is not a technical or defined term. The relevant issue is whether the Ibis system is operating in conformance with the requirements of its permit. The City contends the Ibis lakes are eutrophic and that sediment accumulation in the lakes is releasing phosphorus back into the water, which ends up in Grassy Waters. However, the City’s expert witness, Dr. Harper, admitted that the phosphorus concentration being discharged from the Ibis system, about 40 ppb, is typical for surface water management systems serving large residential developments, although that concentration is at the high end of the range. The phosphorus concentration is closer to 30 ppb in discharges from Ibis Preserve into Grassy Waters, showing that Ibis Preserve provides additional treatment to the waters coming out of Ibis. The characterization of the nutrient loading from the Ibis system as “typical” did not address the additional nutrients in the drainage that the Ibis system is required to accept from the SR 7 ROW. The record does not show that the nutrient concentrations from the Ibis system would still be typical if all of the ROW drainage were added without pre-treatment, as was contemplated by the 1989 Ibis permit. Because Grassy Waters is an oligotrophic ecosystem, it can be adversely affected by phosphorus levels above 10 ppb. When phosphorus is introduced into an oligotrophic system in concentrations over 10 ppb, the system begins to change to denser wetland vegetation, which can include invasive and nuisance species, such as cattail. There is denser vegetation and cattails in Grassy Waters near the Ibis Preserve outfall. There is also more phosphorus in sediments near the outfall. These effects decrease with distance from the outfall, but some effects were detected as far as a half mile from the outfall. The City’s expert witness, Dr. Gaiser, testified that periphyton is dissolved by high nutrient levels and replaced by weedy algae. She found adverse effects on periphyton near the outfall. Dr. Gaiser also found microcystis near the outfall. Microcystis is a toxic algae caused by high elevations of phosphorous. Microcystis comprised over 10 percent of the cell density of the algal community near the outfall. The District’s witness, Mr. Waterhouse, conceded that there is a problem with nuisance vegetation at the discharge point into Grassy Waters. He said the District was not aware of the problem before information was developed for this case. No evidence was presented about what consideration the District gave in 1989, when Ibis was permitted, to the potential adverse impacts of discharging phosphorus into the oligotrophic ecosystem of Grassy Waters. Based on the evidence that a phosphorus concentration of 30 ppb is expected for this kind of surface water management system, it must be concluded that the Ibis system was not designed to prevent harm to oligotrophic receiving waters. Respondents presented evidence to show that phosphorus loadings from the M-Canal could be the cause of the adverse impacts found near the Ibis Preserve outfall. The M-Canal was constructed by the City for the primary purpose of delivering water from Lake Okeechobee, via connection to the L-8 Canal, to the Water Catchment Area for public water supply. For most of its length, the M-Canal runs through Grassy Waters. The City generally maintains the water level in the M-Canal below the elevation of Grassy Waters so water in the canal will not flow into Grassy Waters. However, on some occasions, water flows from the M-Canal into Grassy Waters. High phosphorus concentrations have been recorded in the M-Canal; as high as 300 ppb. Nuisance vegetation is growing in the area where the M-Canal connects to the Water Catchment Area. The preponderance of the evidence establishes that the adverse impacts described by the City’s experts in the area of the Ibis Preserve outfall are caused primarily by discharges from Ibis Preserve. There are three other developments adjacent to Grassy Waters that occasionally discharge to Grassy Waters. These discharges are likely to contain some nutrients, but the amount of nutrients and their effects, if any, on Grassy Waters were not described in the record. The Water Catchment Area is a Class I waterbody because it is used for public water supply. The water quality standard for phosphorus and other nutrients in a Class I waterbody is set forth in Florida Administrative Code Rule 62-302.530(48)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Grassy Waters was designated by the Department of Environmental Protection (“DEP”) as a stream. Rule 62-302.531(2)(c) states that the narrative criterion “shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna.” The City presented some evidence regarding nuisance macrophyte growth and changes in algal species composition in Grassy Waters near the Ibis Preserve outfall. Little evidence was presented regarding the practice of DEP or the District in the application of the narrative nutrient standard, but the preponderance of the evidence indicates the agency practice is to consider a stream segment as a whole to determine whether it exhibits an imbalance in natural populations of aquatic flora and fauna.2/ During the course of this proceeding, the District issued administrative complaints against the Improvement District and the City, which include Orders for Corrective Action. The complaints were issued pursuant to section 373.119, Florida Statutes, which authorizes such action when a water management district believes that a violation of any provision of chapter 373 or district rule has occurred. However, at the final hearing, the District was reluctant to say the Improvement District had violated any law or permit condition. The Improvement District did not challenge the enforcement action against it and, therefore, the District’s enforcement order became final. The Improvement District is required to address the accumulation of sediment in the Ibis Lakes, develop a nutrient source control plan, eliminate and reduce the use of herbicides containing copper sulfate, and reassess pumping schedules. There is no target nutrient limit specified in the District’s Orders for Corrective Action. The District’s enforcement action against the City seeks to require the City to increase secondary treatment and retention in Ibis Preserve, provide a plan to remove the exotic/invasive vegetation at the outfall, provide a vegetation monitoring plan, and develop source control measures for residential developments that discharge into Grassy Waters. The City challenged the enforcement action and it remains pending. Snail Kites The Everglades snail kite gets its name from its primary food, the apple snail. In the Everglades, snail kites also feed on an exotic island snail, which occurs there in about equal numbers as apple snails. There was no evidence presented that there are exotic island snails in Grassy Waters. Snail kite habitat is dependent on conditions conducive to apple snails, which are the open marsh and oligotrophic conditions where periphyton flourish. If a sufficient number of apple snails are present, snail kites will find suitable nesting nearby. Dense wetland vegetation is not good forage for snail kites because, even if apple snails are present, the apple snails will be difficult or impossible for the snail kites to see. Dr. Welch, who was the state snail kite conservation coordinator at the Florida Fish and Wildlife Conservation Commission and wrote the snail kite management plan for Florida, testified for the District, where he is now employed as a senior scientist. He said field surveys of snail kite nests in Grassy Waters indicate their numbers are relatively low compared to other areas where snail kites are found. There were only ten successful nests (eggs laid) observed from 2000 to 2016. The City’s Everglades expert, Dr. Lodge, speculated that the low nest counts could be due to difficulty in seeing the nests, but he was not familiar with the survey techniques used and, therefore, his opinion that the numbers could be materially underestimated is not credited. Snail kites nest throughout the Water Catchment Area, but primarily in the open marsh areas of the central and eastern portions of the Water Catchment Area. Over 90 percent of snail kite nests are more than a mile from the Project ROW. Dr. Lodge said there are four snail kite nests within 800 feet of the Project, but he was not more specific about their locations. Most nests are closer to Northlake Boulevard, State Road 710, and the Florida Turnpike. The major factor that adversely affects successful nesting by snail kites and production of offspring is predation, usually by raccoons and rat snakes. “Cold snaps” and drought are also factors. Impacts of The Proposed Project Water Quantity Impacts Water storage for the Project, which was going to be handled in the Ibis system under the 1989 Ibis permit, would be provided in the roadside swales. The Project is designed to retain water volumes greater than typically required for roadways. Stormwater would not flow out of the Project into the Ibis system except in unusually large storm events, in excess of six inches of rainfall. The City did not dispute the Project’s compliance with the applicable water quantity criteria in the District rules. Water Quality Impacts To address the City’s concerns about adverse impacts caused by the Ibis system, the Applicants expanded the roadside swales by ten feet and raised the outfall elevation by 0.05 feet. With these modifications, the Project would provide water quality treatment for its stormwater and no longer rely on the Ibis system for treatment. The swales would provide treatment in excess of the treatment required by District rules. Respondents contend that, when the treatment provided by the Ibis system is added, the total treatment provided for the Project stormwater is more than twice as much as required by District rules. The City, on the other hand, claims that no additional water quality treatment can be provided by the Ibis system because the Ibis Lakes are eutrophic. The preponderance of the evidence supports a finding that Project runoff to the Ibis system would receive additional water quality treatment in the Ibis system and in Ibis Preserve before flowing to Grassy Waters. The effect of the Project’s on-site treatment of its stormwater is that the amount of nutrients that would otherwise flow into the Ibis system from SR 7 would be reduced. Therefore, the effect of the Project is to reduce the nutrient load that the Improvement District was permitted to discharge to Ibis Preserve and Grassy Waters. The City did not dispute the Applicants’ evidence that the Project exceeds the District’s design criteria for water quality. The City focused instead on its contention that, despite its compliance with water quality design criteria, the Project would result in additional nutrient loading to Grassy Waters, which would cause additional adverse impacts to its flora and fauna. The Applicants and the City performed nutrient loading analyses even though such analyses are only required by the District when the receiving waters have been designated by the Department as “impaired” by nutrients or in the case of certain other specially designated waters. Grassy Waters does not have any of these special designations. The Applicants’ nutrient loading analysis concluded that the post-development loading of phosphorus and nitrogen from the Ibis system would be less than the pre-development condition, so there would be a net decrease in nutrients discharged into Grassy Waters. Petitioner’s expert witness, Dr. Harper, believes the Project would increase nutrient loading to Grassy Waters, even if stormwater from the Project did not carry additional nutrients, because the increased volume of water moving through the Ibis system would entrain more nutrients from sediments in the Ibis lakes. Dr. Harper believes the Project would also cause nutrient loading via groundwater seepage through the roadway swales into Grassy Waters. The preponderance of the evidence does not support his opinion that groundwater seepage would cause additional nutrient loading.3/ Dr. Harper believes another source of nutrient loading from the Project would be from surface flow down the roadway embankments. On the eastern embankment, this flow would enter the mitigation area 150 feet from Grassy Waters. Dr. Harper’s estimated total loading from all sources is not persuasive. The estimate gives a false sense of precision. It is based on a number of variable assumptions, some of which are not widely known or in use by experts in the field. In addition, Dr. Harper’s opinion did not appear to appropriately account for the modifications to the Project’s storage capacity. Dr. Harper’s estimated loading was not translated into physical effects in Grassy Waters. The Applicants’ estimate of total nutrient loading also gives a false sense of precision, but it is based on a well-known and widely used methodology. The City failed to prove that the Project would result in more nutrient loading to Grassy Waters than is currently contributed by the ROW. Because the Project would not rely on the Ibis system for stormwater treatment, the Project would reduce the loading that the Improvement District was permitted to discharge to Grassy Waters. To address potential vehicular spills into Grassy Waters, FDOT produced a Spill Response Plan. The swales would capture and contain any material spilled on the roadway or swale. The curb and gutter, a guardrail, gravity wall, and fence also provide protection against spills. The bridge over the M-Canal would use a 54-inch traffic barrier, which is higher than FDOT specifications for the design speed for the bridge. The City did not present evidence to show that the protective measures proposed by the Applicants are less than what is usually considered adequate under similar circumstances, or fails to meet a relevant safety standard. Wetland Impacts Direct Impacts The Project would directly impact 52.37 acres of wetlands and 7.86 acres of surface waters. The impacted wetlands are fresh water marsh, mixed shrubs, and hydric pine flatwoods. The surface waters affected consist of vegetated ditches and un- vegetated channels or canals. The impacted wetlands include 11.77 acres of freshwater marsh. The impacted surface waters are ditches. Most of these wetlands are disturbed and their functional values have been reduced. Secondary Impacts District rules require an applicant to account for the secondary impacts caused by a project that could adversely affect the functions of adjacent wetlands or other surface waters. The Applicant’s Handbook defines secondary impacts to include impacts on wetland functions, water quality, and endangered species, including impacts on areas needed by endangered species for foraging. Part of the Applicants’ assessment of secondary impacts of the Project was made by reviewing the effects of the Acreage Reliever Road on Pond Cypress Preserve, a 1,737-acre conservation area managed by the County that is immediately south of the proposed Project. The County has been monitoring the effect of the Acreage Reliever Road on hydrology, vegetation, and species compensation ever since the road was built. The County found no adverse secondary impacts caused by the road. The species that use the wetlands near the road, including wading birds, appear to be unaffected by the road. The scoring of secondary impacts for the Projects, using the Uniform Mitigation Assessment Methodology (“UMAM”), was conservative, meaning that assumptions were made at the high side of the potential range of impacts. This resulted in more mitigation being required. The Applicants claim the Project would “maintain a 300-foot buffer between the project’s construction boundary and [Grassy Waters].” This appears to be a misstatement. The Applicants’ combined ROW is only 320 feet wide. Going east from the limits of construction, it is 160 feet to Grassy Waters. The Project’s buffer is 160 feet wide. The District accounted for secondary impacts to wetland dependent species, including snail kites, from noise and lights that might discourage use of the area. The Project would provide a tree buffer that will reduce noise and light impacts to Grassy Waters. The roadway lighting plan is also intended to reduce light penetration into Grassy Waters. Most of the threatened and endangered bird species are tolerant of roadways for foraging and roosting, but not for nesting. Section 10.2.7 requires the Applicants to provide reasonable assurances that any future phase of a project or project-related activities will not result in adverse impacts to the functions of wetlands or water quality violations. The Applicants satisfied this requirement by releasing of FDOT ROW north and south of the Project. Cumulative Impacts An applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. Some of the proposed mitigation for the Project is out- of-basin. If an applicant proposes to mitigate impacts in another drainage basin, District rules require consideration of factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” to determine whether there are unacceptable cumulative impacts. The Project is located in the eastern Palm Beach County Basin, which has approximately 21,000 acres of wetlands. About 89 percent of the wetlands in the basin are publicly-owned conservation lands, which means their wetland functions will continue into the future. The cumulative impact analysis was conservative, meaning that the actual impacts are likely to be fewer. Petitioner contends that Respondents’ cumulative impact analysis did not account for the unique nature of the Grassy Waters ecosystem as the only remaining low nutrient oligotrophic wetland in the region. The preponderance of the evidence shows that the historical wetland types in the Project area were not all like the open marsh found in the central and eastern portion of Grassy Waters. Respondents accounted for the loss of open water marsh that would be caused by the Project. On-Site Mitigation There would be 52.4 acres of on-site mitigation within a 160-foot-wide strip of land along the eastern limits of proposed construction. This area of the ROW would be managed by removing or treating the exotic vegetation, such as Brazilian Pepper and Maleleuca. Removing the exotic vegetation seed source would prevent further spread of these nuisance species into Grassy Waters. Where native habitats have been altered with ditches and berms, the land would be graded to create a slope from the limits of construction eastward to the edge of the ROW. The eastern elevation would be similar to the adjacent marsh or hydric pine areas of Grassy Waters. Then, native vegetation would be planted. The habitats enhanced, restored, or created would include freshwater marsh, hydric pine flatwoods and mixed forested wetlands, including cypress. The planting of mixed, forested species would provide sound and light buffering for snail kites and other species in Grassy Waters. Two wildlife passages would be created underneath the Project with fencing designed to direct wildlife to use the wildlife passages. Slats would be placed in the roadway fencing to prevent small animals from going through the fence and onto the roadway. The on-site mitigation was scored using UMAM and determined to result in functional gain. The UMAM analysis was conservative, meaning that the actual functional gain is likely to be greater. The City did not contest the UMAM scoring. Off-site Mitigation FDOT is applying mitigation credits from 210 acres at the Pine Glades Natural Area (“Pine Glades”) to offset impacts to 15.7 acres of herbaceous marsh and 26.78 acres of forested wetland impacts. Pine Glades is a regional off-site mitigation area located in the Loxahatchee River Basin and is owned and operated by Palm Beach County. Pine Glades consists of a mix of wet prairie, depression marshes, hydric pine flatwoods, and mesic flatwoods. The restoration work in Pine Glades has already been completed. Pines Glades implements a detailed management plan that provides regional ecological value. Robbins testified that Pine Glades has similar habitats to Grassy Waters. Pine Glades has periphyton, apple snails, snail kites, wood storks, and sand hill cranes. Pine Glades has some areas with oligotrophic conditions. Additional off-site mitigation to offset 52 acres of wetland impacts caused by the Project would be provided at the DuPuis Reserve (“DuPuis”). DuPuis is a regional off-site mitigation area located between the L-8 Canal and the C-44 Canal in western Palm Beach and Martin Counties, and is owned and operated by the District. DuPuis would provide mitigation with 34.71 acres of herbaceous wetlands and 43.8 acres of forested wetlands. DuPuis is appropriate to offset the impacts associated with the Project because it provides similar habitats with similar values of functions for similar wildlife. DuPuis implements a detailed management plan that provides regional ecological value. The City argues that there is little similarity between the Grassy Waters ecosystem and Pine Glades or DuPuis, so the mitigation there cannot offset the unique assemblage of plants and animals that would be lost in Grassy Waters. It is unnecessary for Pine Glades and DuPuis to be dominated by open water marshes like Grassy Waters. It is only necessary that they have some of these areas to offset Project impacts to open water marsh. Proposed snail kite mitigation would provide 52.5 more acres of snail kite habitat than would be directly impacted by the Project. The mitigation for snail kites will be located in FDOT ROW adjacent to the Project, south of the M-Canal, and north of Northlake Blvd. Erwin expressed concern about fragmentation of the ecosystems that would be caused by the Project. The areas that would be affected by the Project have already been fragmented by berms, ditches, and fences. Grassy Waters is surrounded by berms, a canal, and highways. The Project would cause fragmentation, like all roads. However, the fragmentation was reduced where practicable, and the City did not show that the roadway would cause the loss of any significant “greenway” now used by wildlife. Snail Kite Impacts Section 10.2.2(a) requires an applicant to provide reasonable assurances that a proposed activity would not impact wetlands and other surface waters so as to reduce the abundance and diversity of listed species. Snail kites, wood storks, sandhill cranes, white ibises, and little blue herons are listed species that have been observed within the Project corridor. As explained in the Conclusions of Law, the UMAM process is designed to mitigate for wetland functional losses, not snail kite functional losses. However, the potential impact to any listed species warrants close attention to the issue of whether function-for-function wetland mitigation would be provided. There will be 11.5 acres of direct impacts to snail kite habitat within the footprint of the Project area. Dr. Welch believes secondary impacts to wetland functions associated with snail kites could extend 800 feet east of the ROW. Mitigation for snail kites would be located in the Rangeline corridor south of the M-Canal and north of Northlake Boulevard. Dr. Welch estimated there were about 64 acres of snail kite habitat in the Rangeline corridor similar to the 11.5 acres of habitat located in the Project footprint. Dr. Welch conceded that he has no evidence that snail kites currently use the Rangeline, but he believes the habitat is suitable and is appropriate mitigation. Petitioner claims there are studies of “similar birds” indicating that snail kites avoid highways due to noise. However, the studies were not of similar birds. More weight is given to Dr. Welch’s testimony that snail kites are not particularly sensitive to roadway noise. Dr. Welch stated that Pine Glades would likely have value for snail kites because it is near the Hungryland Wildlife Management Area, which has the same number of successful snail kite nests as Grassy Waters. The City contends that Pine Glades is too far away from Grassy Waters to mitigate Project impacts to snail kites. However, snail kites range long distances to forage; several hundred miles in a few days. Satellite telemetry of snail kites shows snail kites from Grassy Waters are using Pine Glades for feeding. Dr. Welch reviewed snail kite nesting data to determine whether roads deterred nesting and found that snail kites frequently nested within 500 feet of major roadways. Dr. Welch refuted the idea that Grassy Waters provided snail kite refuge during drought conditions, because Grassy Waters is also subject to drought conditions that adversely affect snail kites. There are conditions in the permit to limit potential impacts to snail kites during construction of the Project. If snail kite nesting is observed within 1,640 feet of construction, all Project construction must cease. Thereafter, monitoring of the nest and notification of the U.S. Fish and Wildlife Service is required. Construction cannot resume until that nest has been considered finished. FDOT would place a conservation easement over 82.6 acres in the FDOT ROW between Okeechobee Boulevard and the M-Canal, south of the Project area that is the subject of this proceeding. The conservation easement would maintain connectivity between the Pond Cypress Natural Area and Grassy Waters and ensure that no future southern extension of the roadway will be constructed. A conservation easement would be placed on the FDOT ROW between Northlake Boulevard and SR 710, an area of approximately 43.5 acres. Preserving this area protects a hydrologic connection between Loxahatchee Slough Natural Area and Grassy Waters. It also ensures no future northern extension of the roadway. A conservation easement would be placed on a portion of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5 acres. This section of ROW is in the Loxahatchee Slough and the release of the ROW would be a direct benefit to Loxahatchee Slough. The preservation of these areas would benefit fishing and recreational values in the Pond Cypress Natural Area, Grassy Waters, and the Loxahatchee Slough Natural Area. These conservation areas did not receive UMAM credits to reduce the wetland acreage needed to offset wetland functional losses, but they were included in the mitigation credit for benefits to snail kites and other wildlife. Summary The preponderance of the evidence established that the proposed mitigation offsets the impacts to wetlands and other surface waters that would be caused by the Project and exceeds the requirements of District rules. Practicable Design Modifications District rules require an applicant to consider alternatives that would avoid or reduce wetland impacts. The City claims the Applicants failed to comply with this rule because FDOT selected a roadway corridor that was expected to have greater environmental impacts than some of the other three corridors that were being considered. As explained in the Conclusions of Law, this argument is misplaced. The District’s review of the Applicants’ measures to avoid or minimize wetland impacts was appropriately confined to Corridor 3, the corridor selected by FDOT where the Project is proposed. The Applicants reduced and eliminated impacts of the Project in several ways. For example, the footprint of the road was narrowed from six lanes to four lanes, wildlife underpasses were provided, retaining walls were used to narrow stormwater features, the median was reduced in size, and the design speed limit was reduced for the bridge at the M-Canal crossing. Under two circumstances, District rules allow an applicant to avoid the requirement to implement practicable design modifications to reduce or eliminate wetland impacts, which are referred to as the “opt-out” provisions. Section 10.2.1.2, Volume I, of the Applicant’s Handbook (“A.H.”) provides: The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. The District determined that the Applicants meet both tests. The preponderance of the evidence supports the District’s determination. The ecological value of the functions provided by the affected wetlands and surface is low and the proposed mitigation would provide greater long-term ecological value than the area being impacted. Pine Glades and DuPuis are part of a plan to restore the ecological value of Northern Palm Beach County and create an “ocean to lake” system of preserves and natural areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Permit Number 50-05422-P on the terms and conditions set forth in the amended Staff Report, and the complete application for the Permit. DONE AND ENTERED this 31st day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2017.
The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 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 17th day of March, 2006.
