The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
Findings Of Fact The Respondent is a multi-county water management district which was created by Chapter 25270, Laws of Florida, 1949, and which operates pursuant to the provisions of Chapter 373, Florida Statutes. The District is the local sponsor for the federally-authorized "Central and Southern Florida Project for Flood Control" and as such, operates and maintains various water control facilities and impoundments in South Florida, as authorized and constructed by the Federal Government. The jurisdiction of the District encompasses 16 counties in southern and central Florida, from Marion County in the north to Monroe County in the south. Water Conservation Area 2A is one of several water conservation areas within Respondent's jurisdiction and is a part of the federally-authorized Central and Southern Florida Project for Flood Control. On April 13, June 2, August 10, September 26, October 19, and October 20, 1978, the Governing Board of the District held public hearings and workshop meetings to receive comments from the District staff and the general public concerning the proposed "draw down" or alteration of water levels in Water Conservation Area 2A. Notice of the September 26, 1978 public hearing was published in the Florida Administrative Weekly, Volume No. 4, No. 36, on September 8, 1978. By the terms of the notice, the purpose of the September 26th public hearing was: To provide interested citizens with an opportunity to express their opinions and hear testimony regarding the District's proposal to lower the water level in Conservation Area 2A, located in western Palm Beach and Broward counties. The purpose of the draw down is to con- solidate the bottom sediments so that a more flexible water schedule can be begun to preserve the natural Everglades ecology . . . . After considering information received from staff and the general public, the Governing Board entered its "Order" No. 78-12 dated October 20, 1978 containing findings of fact and conclusions of law. This "order" provided, in pertinent part: That the staff take appropriate measures to accomplish the following: A draw down from current high water levels will be initiated October 31, 1978, with the goal of reducing water levels in the central portion of the marsh to ground level by December 31 (about 11.2 feet msl). From this point, water levels shall be allowed to continue to recede to a minimum level of 9.5' by the end of May, 1979. Water levels will be allowed to rise to about 12.5' msl by October 31, 1979. That the staff take appropriate measures to regulate water levels in Conservation Area 2A between 12.5' and 9.5' msl as provided in Paragraph 1. until November of 1981. That the regulation of Conservation Area 2A be carried out in a flexible manner to insure maximum environmental benefits and that adjustments in water level fluctuations and stages may be made predicated upon the environmental response of the Conservation Area 2A ecosystem resulting from the previous year's hydroperiod. That the staff pursue such research and data collection as is necessary to fully document the conditions of the marsh throughout the three year duration of the project. No formal hearings pursuant to Section 120.57(1), Florida Statutes, were requested as a result of the aforementioned workshop, public hearings or agency action embodied in the "order" of October 20, 1978. It is undisputed that Respondent did not comply with the requirements of Section 120.54, Florida Statutes, relating to rule making in issuing its Order of October 20, 1978. Petitioner, Joe Burgess, is the owner of Hinckle's Bait and Tackle Shop on State Road 84 in Broward County, approximately 12 miles from Conservation Area 2A. Petitioner Burgess derives approximately 60 to 70 percent of his business from customers who use Conservation Area 2A for hunting, fishing, and other recreational purposes. In addition, Petitioner Burgess personally uses Conservation Area 2A for hunting and fishing. Petitioner, Keith Finlayson, is an environmentalist who uses Conservation Area 2A for recreational purposes, including fishing, bird watching, observing animals in their natural habitats and flora identification. Petitioner Finalyson uses Conservation Area 2A for recreational purposes approximately two to three times per week. Petitioner, Concerned Citizens for the Everglades, Inc., is a not-for- profit Florida corporation, some of whose members presently use Conservation Area 2A for hunting, fishing, and other recreational purposes. Other members of the organization derive their living from businesses supported by revenues obtained from the general public directly attributable to "use" of Conservation Area 2A. One of the effects of the "draw down" will be to make certain portions of Conservation Area 2A inaccessible by boat during some periods of the year, thereby curtailing recreational and other use of the those areas. Water Conservation Area 2A, and other such areas within the jurisdiction of Respondent, is surrounded by levies and various water control structures and is operated independently of other water conservation areas, which are also surrounded by levies and water control structures. All of the water conservation areas within Respondent's jurisdiction are subject to different and independent water regulation schedules. The evidence establishes that it is not feasible to apply the same regulation schedule to all water conservation areas due to differences in topography. In fact, it is anticipated that a different regulation schedule for Water Conservation Area 2A will be developed after the current three-year draw down period is concluded. Although originally scheduled to commence on November 1, 1978, the "draw down" of water levels in Conservation Area 2A was delayed as a result of legal actions taken in state courts. As a result, the District did not actually begin the "draw down" until August, 1980.
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of April, 1981.
Findings Of Fact In a case before the Seventh Judicial Circuit, St. Johns County, Florida, Case No. 2154, the 16 Mile Creek Water Control District, a drainage district, was incorporated pursuant to provisions in Chapter 298, Florida Statutes. Subsequently, in Special Act 87-502, the Florida legislature changed the name of 16 Mile Creek Water Control District to Flagler Estates Road and Water Control District. This special act became law without the governor's approval. On December 3, 1990, the District employed Ms. Underwood. From that date until September 1, 1994, Ms. Underwood was employed as a part-time administrative secretary and at times served as secretary to the District governing board. At various intervals Ms. Underwood's work performance was reviewed. The more recent evaluations were made on April 1, 1993 and October 20, 1993, in which the District through its supervisor found that Ms. Underwood met performance expectations in fulfilling her job. On April 7, 1994, Horace Freeman, Sr. was placed on the District's Board of Supervisors. The Board of Supervisors was ultimately responsible for Ms. Underwood's employment with the District. Freeman's principal concerns when taking office were related to procedures followed in the District's administrative office, accountability for equipment and proper utilization of manpower in the District. At that time, Messrs. Martin and Cox were the other Board members. Mr. Martin was the Board President. Mr. Freeman also believed that Chapter 298 required that the minutes be kept appropriately together with other important documents concerning the District's operations. On June 18, 1994, Bobby Stewart was elected to the Board of Supervisors. He took Mr. Martin's position on the Board. Immediately following those events Mr. Freeman was elected Board President. Mr. Stewart became Secretary to the Board. Mr. Cox's service on the Board included dates through September 15, 1994. He was replaced on an interim basis by Mr. Rousseau. In June, 1995, Mr. Rousseau was elected to fill the position that Mr. Cox had filled. Upon taking office as Board President, Mr. Freeman placed Mr. Stewart in charge of the Board's administrative functions. Mr. Freeman, as President was responsible for the overall District operations. In that capacity he instructed Mr. Stewart and Ms. Underwood to update the Board minutes. Mr. Freeman was interested in establishing definite policies and procedures to be followed by the District. He believed that the policies and procedures that existed when he took office were not adequate. When Mr. Freeman took office there was a personnel manual in effect that contained a limited number of instructions as to rights and opportunities for all citizens to be employed with the District; working hours; pay periods; holidays; paid leave; responsibilities of the foreman of the District, who is the day-to-day supervisor at the District; evaluation of employees, and the basis for modification of the personnel manual. The manual made the foreman of the District responsible for interviewing, hiring, and terminating employees with the consent and approval of the Board of Supervisors. The foreman was expected to evaluate each employee of the District once every six months. These evaluations were to be presented to the Board of Supervisors on October 1 and April 1 of each year. The expectation was that the evaluations would be discussed with the employee before presentation to the Board and would be used as a tool to improve employee performance. Before Mr. Freeman and Mr. Stewart took office as Board members, the April 1, 1994 evaluation for Ms. Underwood had not been conducted. In the personnel manual under the heading "Modification of Personnel Manual", the Board reserved the right to make changes to the personnel manual by additions, deletions, or other modifications and to set forth supplemental regulations related to personnel and personnel policy. Under the terms of the personnel manual in effect when Mr. Freeman and Mr. Stewart took office, the District working hours were 7 a.m. to 5:30 p.m., Monday through Thursday. District employees were given 1/2 hour for lunch period and a 15 minute break in the morning and a 15 minute break in the afternoon. Concerning paid leave, employees who were employed for a period of six months accrued 40 hours of annual leave and 20 hours of sick leave. Beyond that initial six months period the employee would earn leave at the rate of 80 hours per year annual and sick leave at 40 hours per year, with sick leave not to exceed a maximum of 200 hours. Ms. Underwood was an employee subject to the terms of the personnel manual that have been discussed. In addition to the personnel manual, the District had a set of statements referred to as the "standardized employee requirements and expectations." This document was modified by Mr. Freeman. In pertinent part this set of requirements and expectations indicates that "excessive tardiness will not be tolerated." That document intimated that prior approval from the Board of Supervisors would be necessary if the employee intended to be late for work. In March 1993 Ms. Underwood had been made aware of the provision concerning tardiness. On June 20, 1994, a meeting was held between Mr. Freeman, Mr. Stewart and Ms. Underwood. At that meeting Mr. Freeman told Ms. Underwood that Mr. Stewart was assuming administrative duties for the Board. At times in the past Ms. Underwood had performed those duties as Board secretary. Under those past arrangements Ms. Underwood as Board secretary reported directly to the Board of Supervisors. Under the arrangements imposed by Mr. Freeman, Ms. Underwood would report to Mr. Stewart who in turn reported to the full Board. In effect, Ms. Underwood was the secretary to Mr. Stewart who was the secretary to the Board. When Mr. Stewart assumed his duties as Board Secretary, Ms. Underwood was not working in that capacity. At that time Ms. Underwood was the administrative secretary in the District office. At the June 20, 1994 meeting Mr. Freeman offered the opportunity for Ms. Underwood to become a full-time employee working 40 hours a week. Mr. Freeman also offered the opportunity to go from the District office to the City of Hastings for her lunch period, assuming her willingness to accept a one hour lunch period, given that the trip to Hastings and back to the District could not be made in 30 minutes. Mr. Freeman specifically told Ms. Underwood that she could not go to Hastings, get her lunch and come back to the District and eat her lunch. Ms. Underwood was left to consider the options to become a full-time employee and expand her lunch period. Ms. Underwood was given a week to decide how much time she wished to work and what lunch hour she wished to use. At the time the discussion was made concerning hours of work, Ms. Underwood was working four days, 32 hours a week. By accepting the 40 hour work week she would be entitled to the benefits of a full time employee. When the question of her work hours was brought to Ms. Underwood's attention again one week beyond the June 20, 1994 conversation, Ms. Underwood was not interested in changing her hours of employment or lunch period. Ms. Underwood was reminded that she would not be allowed to go to Hastings to get lunch and then drive back and still operate under the 30-minute lunch period. In summary, Ms. Underwood continued in her work day of 8 a.m. to 4:30 p.m., Monday through Thursday with 30 minutes for lunch. On June 20, 1994, Mr. Freeman explained to Ms. Underwood that Mr. Stewart would be working and training in the District office on a daily basis. Ms. Underwood was told to show Mr. Stewart all the daily functions of the office, having in mind that Mr. Stewart would make a presentation to the full Board concerning any changes that were needed in the office operations. In the June 20, 1994 meeting Mr. Freeman mentioned the need to update the District Book of Records. Mr. Freeman also mentioned the need to replace the cover to the Book of Records in that the old Book of Records referred to 16 Mile Creek instead of Flagler Estates Road and Water Control District. It was Mr. Freeman's intention to purchase a new binder with a correct title. In particular, Mr. Freeman discussed the need to organize the documents necessary to compile the Book of Records for the District. Ms. Underwood never started this task. Mr. Freeman reminded Ms. Underwood once a week to accomplish the organization of documents for compiling the Book of Records. In the beginning, during the weekly discussions, Ms. Underwood would tell Mr. Freeman that the project to organize documents necessary for the book of records had begun. Then Ms. Underwood told Mr. Freeman that the work had been completed. These remarks to Mr. Freeman concerning the completion of that task were made at a Board meeting in August, 1994. In this conversation Mr. Stewart was there to observe and not comment. On the June 20, 1994 date, a written document was produced and discussed. It was directed to Ms. Underwood and read to her. Ms. Underwood protested that this arrangement in which Mr. Stewart sat there while Mr. Freeman read the document was in violation of her rights. Ms. Underwood stated that Mr. Freeman had no right talking to her as an employee with another supervisor in the office. Mr. Freeman stated that Mr. Stewart was not there to make comments, rather Mr. Stewart has been brought into the room so that he would be aware of what Mr. Freeman was presenting to Ms. Underwood. If Ms. Underwood questioned Mr. Freeman concerning the discussion, then Mr. Stewart would be aware of those topics. When the June 20, 1994 document was presented to Ms. Underwood she did not question its substance. In the June 20, 1994 document presented to Ms. Underwood, Ms. Underwood was told that she was to report directly to the Secretary of the Board, Mr. Stewart. She was told that she was responsible for the daily secretarial duties associated with the administrative affairs of the District Office and matters directed by the Board of Supervisors. Her working hours and lunch period were not filled in pending her decision. Those working hours and lunch period, once the decision was made, would be complied with unless the President or Secretary of the Board instructed Ms. Underwood otherwise. The written document told Ms. Underwood that Mr. Stewart would be working/training in the Office on a daily basis and that she should show Mr. Stewart all functions and daily procedures. Those procedures were to be recorded by Mr. Stewart and that information would be forwarded to the Board of Supervisors for review and establishment of new written procedures to be used by the District. Through discussion and through the document presented to Ms. Underwood, Ms. Underwood was made aware that accounts payable would be placed in chronological order. Ms. Underwood was told through the written document that all forms being used by the District would be reviewed for update and change by July 7, 1994. Moreover, the book of records would be updated and assembled to meet the guidelines in Chapter 298 and the Florida Administrative Code by July 7, 1994. On the week following June 20, 1994, Mr. Freeman reminded Ms. Underwood that the verbatim tapes of meetings and workshops conducted by the Board had not been removed from the floor and placed in the fireproof cabinet as he had told Ms. Underwood to do on June 20, 1994. When Mr. Freeman made his comments on the week following June 20, 1994, Ms. Underwood said that there was no room in the fireproof cabinet. She wanted to know what she was supposed to do to deal with the lack of space in the cabinet. Mr. Freeman told her to keep documents in the fireproof cabinet going back about 5 years and remove the documents older than 5 years and put them in regular cabinets that were not fireproof. Mr. Freeman explained that the tapes of the meetings were more important than some of the documents that were in the file cabinet. These tapes were official records of the District and needed to be protected against destruction. The tapes were in a box sitting on the floor. The dates of the tapes went back several years. In the discussion which Mr. Freeman had with Ms. Underwood about a week after the June 20, 1994 meeting, Mr. Freeman also told Ms. Underwood that she needed to take some of the old records out of the fireproof cabinet, because those records in the cabinet needed to be "straightened out", as well as providing space to protect the tapes. On July 7, 1994, at a Board meeting, Mr. Freeman discussed the employee work assignments for the District, to include Ms. Underwood. At that meeting the employees were presented with a memo concerning work assignments. In addition rules and directives were discussed and a document prepared and provided to the employees concerning rules and directives for employees. The document concerning rules and directives reminded the employees that the administrative office was the responsibility of Mr. Stewart as Board Secretary and Ms. Underwood as secretary to Mr. Stewart. The administrative office, in accordance with this memorandum, was responsible for, among other things, legal records, contracts, bids, materials requested, warrants, and the Book of Records. The rules and directives which pertain to Ms. Underwood and other employees, and about which Ms. Underwood was made aware, indicated that District employees would not leave the District grounds during work hours without the knowledge and approval of the Board or its designee. Employees were made aware that violation of rules and standards set forth by the District Board would result in disciplinary action, including the possibility of termination. The employees did not question the contents in the July 7, 1994 memorandum concerning rules and directives while in attendance at the July 7, 1994 meeting. Mr. Freeman gave verbal instructions to Ms. Underwood about compiling the minutes of the District commencing in 1971 and continuing into the future. Mr. Freeman told Ms. Underwood once a week for several weeks and at Board meetings that the minutes needed to be compiled. This work was not done until January 15, 1995, following Ms. Underwood's departure from the District. In particular, Ms. Underwood was expected to compile the original minutes and place them in a book that was already in existence. Ms. Underwood did not do this. The minutes were to have been copied between June 20 and July 7, 1994 and the originals placed in the fireproof cabinet. Copies were for purposes of public access. The minutes were not copied. Mr. Freeman told Ms. Underwood on a weekly basis, commencing June 20, 1994, to make copies of the original minutes and then place the originals in a fireproof cabinet. When Ms. Underwood would tell Mr. Freeman that there was not room in the cabinet to place the minutes, that is when Mr. Freeman told her to remove some of the older files and put them in another cabinet. Later when room was made to place the original minutes in the fireproof cabinet, it took approximately 5 to 10 minutes to remove other items to make room. Although Mr. Freeman told Ms. Underwood on June 20, 1994 and once a week beyond that date to make copies of the original minutes for public inspection, Ms. Underwood did not do this. The reasons which Ms. Underwood gave for not accomplishing this task that she did not have time or it would just take a little while. At one Board meeting Ms. Underwood told Mr. Freeman that the minutes had been copied and were up to date, when in fact they had not been. This occurred on the first Board meeting in August, 1994. Ms. Underwood did not update the overall office files as required by instructions given on June 20, 1994. Mr. Freeman recounts that Ms. Underwood had been told to update the District files concerning warrants, bills, and information about venders with whom the district did business. The District files had not been in order in the past. Ms. Underwood was instructed to get them in order and the Board allowed Ms. Underwood to use a previous color-code system for updating files, a numbering system or an alphabetical system. Mr. Freeman expected Ms. Underwood to update the files as to vender accounts, warrants and bills, within 30 days from June 20, 1994. Other files that needed to be updated, unassociated with vendor accounts, were to be concluded within a "short time" based upon a representation from Ms. Underwood to Mr. Freeman as to time needed to accomplish the task. Mr. Freeman told Ms. Underwood that in cleaning out the fireproof cabinet that she could make room by taking out vendor information prior to the 1990's. As described Mr. Freeman, commencing June 20, 1994, he instructed Ms. Underwood to put verbatim tapes of Board meetings in the fireproof cabinet. Mr. Freeman reminded Ms. Underwood to do this on a weekly basis. Ms. Underwood never moved the tapes from where they were located and into the fireproof cabinet. Mr. Freeman observed Ms. Underwood entering the Lil' Champ in Hastings, Florida, to get her lunch. He made this observation on two occasions. On one occasion the observation was made at 1:10 p.m. Mr. Freeman consulted with Mr. Stewart and was told that Mr. Stewart had not given permission for Ms. Underwood to go to Hastings at lunch. For the two occasions upon which Mr. Freeman saw Ms. Underwood in Hastings getting lunch, Ms. Underwood made no adjustment to her time records to reflect that she took longer than 30 minutes for her lunch period. Ms. Underwood was obligated to make that adjustment to the time records. Concerning the two occasions upon which Mr. Freeman had seen Ms. Underwood getting lunch at Hastings, this was subsequent to June 20, 1994, when Ms. Underwood had been told that she could not go to lunch and bring the lunch back and eat at the District. Ms. Underwood had not started the project of copying the original minutes for public inspection, replacing the original minutes in the fireproof cabinet, updating District files and making room in the fireproof cabinet for the verbatim tapes of Board meetings and workshops when Ms. Underwood was suspended on September 1, 1994. On June 21, 1994, Mr. Stewart met Ms. Underwood. He told Ms. Underwood to make copies of the minutes and place the originals in the fireproof cabinet. He also told Ms. Underwood to take the verbatim tapes of Board meetings from the floor and put them in the fireproof cabinet. At that point, Ms. Underwood made no comment about the instruction concerning placing the tapes in the fireproof cabinet. As Mr. Stewart clarified in his testimony the original minutes were in the fireproof cabinet and were to be returned to that cabinet once copies were made. The copies of the minutes were to be used to serve the public and need not be placed in the fireproof cabinet. On June 21, 1994, Mr. Stewart told Ms. Underwood to update District files for the last five years and put earlier files in storage by placing the earlier files in a box and putting them upstairs after labeling the earlier files. This referred to placing the earlier files in an upstairs area to the District offices. Later on, Ms. Underwood stated that there was not room in the fireproof cabinet. Mr. Stewart reminded Ms. Underwood that if the files for the work period earlier than the last five years were removed, then there would be room in the fireproof cabinet for the tapes. On June 21, 1994, Mr. Stewart told Ms. Underwood that he wanted Ms. Underwood to compile the records to be placed in the Book of Records and to make copies of those original documents for a duplicate book of records. In compiling the Book of Records, Ms. Underwood was to take into account the records of the supervisors who ran the District's daily operations. The Book of Records includes transactions of the Board of Supervisors, minutes, legal documents, publications, and the accountant's report, together with any other record of the official business of the Board. Following the June 21, 1994 conversation, Mr. Stewart came to the District office approximately every day. On these visits, Mr. Stewart would remind Ms. Underwood concerning the need to make the copies that were referred to on June 21, 1994. From July 19 through July 29, 1994, Ms. Underwood missed work due to illness. After Ms. Underwood's return to work from her illness, Mr. Stewart made mention about making the copies that were discussed with her on other occasions. Ms. Underwood never began the project for organizing the Book of Records and making copies for a duplicate Book of Records. This failure was discussed with Ms. Underwood on several occasions, to include the date upon which Mr. Stewart decided to recommend to the Board that Ms. Underwood be suspended. Ms. Underwood did not make any progress in updating the files, as required by Mr. Stewart. Mr. Stewart examined the files and could not ascertain that the files had even been moved following his instructions to Ms. Underwood. What Mr. Stewart had in mind was that Ms. Underwood should remove from the fireproof cabinet miscellaneous items that did not need to be kept in the fireproof cabinet further back than five years. Ms. Underwood did not remove the miscellaneous documents from the fireproof cabinet and put them in storage, as instructed. Mr. Stewart told Ms. Underwood many times that Ms. Underwood should update the files. On one occasion when Mr. Stewart discussed the need to update the files, Ms. Underwood commented that she had to start updating the files. From Mr. Stewart's observation, which is accepted, Ms. Underwood had adequate time to attend her other duties and perform the tasks that he had assigned. In April of 1994, the District made application to the Department of Environmental Protection (DEP) to replace culverts within the District's jurisdictional boundaries. In fact, what the District really intended was to take the culverts from one location and put them in another location without replacing them in the initial location. Contrary to requirements set forth by the DEP, the District failed to publish the proposed conditions for the permit issued by the DEP. Ms. Underwood was responsible to make the publication in accordance with requirements established by the DEP. Ms. Underwood failed to make the publication through oversight. The failure to publish was not reported to DEP. Consequently, DEP contacted the District around July 1, 1994. Someone employed by the DEP spoke to Mr. Stewart and instructed Mr. Stewart to publish the permit terms in a newspaper which was well circulated in Flagler County, Florida. After that publication was made, the DEP employee told Mr. Stewart to take a copy of that publication out of the newspaper and attach it to a letter and send it to the DEP employee. After receiving that information, the DEP would close its file, thus, avoiding a possible $500.00 fine for noncompliance with the publication requirement. The DEP employee did not request Mr. Stewart to provide an affidavit of proof of publication from the newspaper in concluding the matter, which was the ordinary manner in which publication was proven. In turn, Mr. Stewart had the permit notice published in the July 7, 1994 edition of a local newspaper. Mr. Stewart took the copy of that notice of publication and gave it to Ms. Underwood to put with a letter to be mailed to the DEP employee. Later Mr. Stewart observed the copy of the notice of publication on a pink pad located on Ms. Underwood's desk. Following his instructions to Ms. Underwood nothing had transpired for 26 days, when Mr. Stewart sent a copy of the publication of notice to the DEP on August 14, 1994. The newspaper publication which Mr. Stewart sent was a separate copy from the copy which he observed on Ms. Underwood's desk. Before mailing a copy of the newspaper publication on August 14, 1994, Mr. Stewart observed that the copy of the publication that had been on Ms. Underwood's desk still remained there. When Mr. Stewart initially discussed the newspaper publication with Ms. Underwood, Ms. Underwood remarked that it did not have an affidavit from the newspaper concerning proof of publication and that the affidavit would not be available until the publication notice had been paid for. Nonetheless, Mr. Stewart explained to Ms. Underwood that the arrangement was one in which a copy of the notice of publication would be forwarded without an affidavit from the newspaper concerning proof of publication. On August 22, 1994, in a conversation between Mr. Stewart and Ms. Underwood, Ms. Underwood stated that she had sent the notice of publication to the DEP. Ms. Underwood did not say when she had forwarded the proof of publication. On August 29, 1994, Mr. Stewart notified Ms. Underwood that she was suspended. The grounds for the proposed suspension that Mr. Stewart intended to present to the Board of Supervisors included: Failure to produce assigned work on time. Failure to maintain files and important records. Failure to respond to important agencies as requested. Failure to maintain paperwork. Failure to maintain accurate time records. Reporting for work late. Misleading information to Supervisors. Failure to comply with assigned duties from the Board. Negligence of duties. Ms. Underwood was not presented with this list of alleged misconduct until a Board meeting on September 1, 1994, without discussion. At the meeting of the Board of Supervisors held on September 1, 1994, Mr. Stewart moved and was seconded by Mr. Freeman to suspend Ms. Underwood until further discussion on September 15, 1994. At the meeting the Ms. Underwood asked that she be paid her vacation pay that had accrued. Mr. Stewart moved and Mr. Freeman seconded a motion to suspend Ms. Underwood without pay; however, a decision was made to pay Ms. Underwood one week of accrued vacation pay and that motion for vacation pay carried. Ms. Underwood had worked for the district until the morning of August 29, 1994, when Mr. Stewart informed Ms. Underwood that she was suspended. On September 9, 1994, Ms. Underwood's attorney, Geoffrey B. Dobson, wrote to Mr. Stewart asking that any hearing concerning the charges against the Ms. Underwood be postponed until the specifics of those charges against Ms. Underwood were provided in writing by the Board. The correspondence went on to specify the information which Ms. Underwood wished to obtain. The requests parallel the allegations that had been provided to Ms. Underwood on September 1, 1994. On September 14, 1994, Mr. Stewart responded to Mr. Dobson's request by correspondence in which it was stated: Pursuant to your request for specific written statement, I would like to respond as follows using numbers which correspond to your letter: On June 21, 1994, Mrs. Underwood was given five (5) tasks that pertained to her job duties and the safety and care of records of Flagler Estates Road and Water Control District. These duties were to commence immediately. These duties were: Make copies of all original minutes and file them in the fire proof cabinet. Make copies of copies for public information. As of August 22, 1994 this was never started. On June 21, 1994, Mrs. Underwood was to update files, since files dated back ten (10) years and there was not room for recent files. As of August 22, 1994 this was never started. Mrs. Underwood was to notify the Department of Environmental Regulations of an April publication oversight. On August 22, 1994, this was achieved twenty-six (26) days later. Mrs. Underwood was instructed to maintain the fire proof cabinet so room could be made for meeting tapes that are on the office floor. On August 22, 1994 this was never started. Mrs. Underwood was instructed to start organizing the documents and records needed to compile the Book of Records of the Supervisors for the Flagler Estates Road and Water Control District. On August 22, 1994 this was never started. See paragraph 1(b) above. See paragraph 1(c) above. See paragraph 1(a) above. Mrs. Underwood has often left her job early for lunch, which she gets ten miles away from her job or returns late from lunch. On a thirty minute lunch break she has often been late for work, but her time records show she has been on time. See paragraph 5 above. See paragraph 1(c) above. See paragraph 1(a), (b), (c), (d) and (e) above. See paragraph 1(a), (b), (c), (d) and (e) above. In response to Mr. Dobson's request, the September 14, 1994, correspondence from Mr. Stewart also indicated that any documents to be used in the Board's action against Ms. Underwood together with an employee handbook would be provided at the regular meeting to be conducted on September 15, 1994. In addition, the June 20, 1994, memorandum which had been provided to Ms. Underwood from Mr. Freeman was attached to the September 14, 1994, correspondence from Mr. Stewart. That letter from Mr. Stewart stated that the request by Ms. Underwood to postpone the hearing would be brought before the Board at the September 15, 1994, hearing. Finally, Mr. Stewart in his correspondence indicated in response to Mr. Dobson's request, that the Board of Supervisors who had any involvement with the allegations against Ms. Underwood be recused from considering the case on its merit, would be addressed at the September 15, 1994, meeting. Reference in the September 14, 1994, correspondence from Mr. Stewart to Ms. Underwood's failure to achieve certain tasks by August 22, 1994, is a mistake. The date should be August 29, 1994. Consequently, Mr. Stewart's position expressed in the September 14, 1994, correspondence wherein he described certain responsibilities by Ms. Underwood not being accomplished by August 22, 1994, should read August 29, 1994. With that correction Mr. Stewart's observation that the tasks had not been achieved is accepted. Mr. Stewart established that the reference in the charges concerning documents needed to compile the Book of Records for limited purpose of copying those records commenced with the year 1971 forward. There was no necessity to organize the preexisting Book of Records, the records before Freeman and Stewart took office. Mr. Stewart placed no time limit on Ms. Underwood concerning the making of copies, but no effort was made by Ms. Underwood to make the copies before August 29, 1994, when Ms. Underwood was suspended. Mr. Stewart observed that at times Ms. Underwood would leave for her lunch earlier than permissible or later than permissible and would not document those occasions. A reference by Mr. Stewart to Ms. Underwood taking forty-five (45) minutes of undocumented time is related to being late for work, not related to the lunch period. Instead the forty-five (45) minutes for being late was when Ms. Underwood registered her child for school and did not reflect that she was missing forty-five (45) minutes from her work. On one Thursday morning Mr. Stewart asked Ms. Underwood why she was late for work and she explained that she had been to pick up the payroll. It was not Ms. Underwood's obligation to pick up the payroll and Mr. Stewart had not been told that Ms. Underwood was picking up the payroll. Concerning Ms. Underwood being twenty-five (25) minutes late when she picked up the payroll, the problem was not that Ms. Underwood picked the payroll up. The problem was that Ms. Underwood did not make Mr. Stewart aware that she was going to be late that morning. Prior to this occasion Mr. Stewart had not mentioned Ms. Underwood's activity concerning picking up the payroll. After this occasion Mr. Stewart said that he would bring the payroll to the District office. Although Ms. Underwood was not obligated to pick up the payroll, before Mr. Freeman and Mr. Stewart took office as members of the Board of Supervisors, Ms. Underwood had customarily picked up the payroll and brought it to the District office. Prior to Mr. Freeman and Mr. Stewart becoming members of the Board of Supervisors it had been the policy for Ms. Underwood to make bank deposits during business hours. When Mr. Stewart discovered that Ms. Underwood had made a bank deposit during business hours, Mr. Stewart told Ms. Underwood that he would make the deposits from that point forward. Although Ms. Underwood had been told that Mr. Stewart would make the deposits beyond that point, Ms. Underwood continued to make bank deposits during business hours. By his remarks Mr. Stewart made it evident that he would make bank deposits and Ms. Underwood would not be allowed to make those deposits and there would be no necessity to determine the amounts of deposits as a means of deciding whether to spend the time to travel to Hastings to make the bank deposits. A one-way trip from the District office to the bank in Hastings takes a minimum of eighteen (18) minutes based on Mr. Stewart's observations. It is not clear whether the instances in which the Ms. Underwood would leave early for lunch or arrive late from lunch were occasions upon which she was making the bank deposits before Mr. Stewart had told Ms. Underwood that she was not responsible for making those deposits. On September 15, 1994, the Board considered Ms. Underwood's suspension. In that meeting the Board was represented by John Michael Traynor, Esquire. Ms. Underwood was represented by Ronald W. Brown, Esquire. At the September 15, 1994, meeting, arrangements were made to allow counsel for Ms. Underwood to inspect any documents that might be relied upon by the District in a future meeting that was convened to consider the allegations against Ms. Underwood. The meeting to consider those allegations would be convened upon thirty (30) days notice from the Board to Ms. Underwood. No further action was taken concerning the suspension. On October 31, 1994, attorney, Linda S. Calvert Hanson, who had become the District's counsel, wrote to Mr. Dobson, Ms. Underwood's attorney. In that correspondence Ms. Hanson makes reference to the September 9, 1994, letter from Mr. Dobson that has been discussed and disposition of Ms. Underwood's petition for hearing. That petition had requested that the hearing be conducted in accordance with Section 120.57, Florida Statutes. On November 3, 1994, Mr. Dobson replied to the Hanson correspondence dated October 31, 1994. Dobson's correspondence questioned the validity of the Board of Supervisors' action to suspend Ms. Underwood. It also referred to the belief that the statutory time limits for referring the Ms. Underwood's case to the Division of Administrative Hearings had expired. The correspondence referred to the belief that Ms. Underwood had been denied rights to procedural due process. The letter described the Ms. Underwood's status as being one of termination. The correspondence referred to perceived prejudice against Ms. Underwood by Messrs. Freeman and Stewart. Finally, the correspondence requested an amicable solution to Ms. Underwood's case before the Board. The November 3, 1994, correspondence for Mr. Dobson was responded to by Ms. Hanson on November 8, 1994; in that letter Ms. Hanson took issue with the characterization of Ms. Underwood's status as being terminated. Ms. Hanson was persuaded that Ms. Underwood's status was one of suspension. The letter refers to Ms. Hanson's belief that some informal negotiations had been pursued between the District and Ms. Underwood. Ms. Hanson referred to the impression that the suspension hearing would not proceed until Mr. Traynor, the former Board attorney, had instructed the Board to set the matter. The correspondence refers to the belief that Mr. Traynor had never given that instruction. In summary, Ms. Hanson expressed the belief that the time for affording a hearing consistent with Section 120.57, Florida Statutes had not expired, given the attempts at informal resolution. The November 8, 1994, correspondence also stated that the Board held the opinion that it could consider the case in lieu of appointment of a hearing officer from the Division of Administrative Hearings. Finally, the correspondence invited Mr. Dobson to consult with his client concerning the matters and to contact Ms. Hanson following that consultation. On January 5, 1995, a report by the District's attorney was made concerning Ms. Underwood's status. It stated: Inasmuch as there has been no response to my letter to Brown of November 8, regarding Ms. Underwood's suspension and the fact that she appears to be employed elsewhere, I recommend that the Board terminate her employment. Attached is a draft letter of termination to be sent to Mr. Brown, her attorney for your approval and signatures. Consistent with the attorney's report, Mr. Stewart, upon motion seconded by Mr. Rosseau, moved to terminate Ms. Underwood's employment with the District. The motion carried. Ms. Underwood was not notified of the meeting on January 5, 1995, in which the decision was made to terminate her employment with the District. On January 13, 1995, Ms. Hanson sent a charge letter to Mr. Brown setting forth the basis for the termination: Please be advised that at the January 5, 1995 meeting of the Board of Supervisors a resolution was passed to terminate Ms. Underwood's employment effective immediately for the following reasons: Failure to properly perform her duties of safety and care for the records of Flagler Estates Road and Water Control District including but not limited to: Failure to make copies of all original minutes and file them in a fire proof cabinet as required by instructions of June 21, 1994. Failure to make copies of the minutes for public inspection as required by instructions of June 21, 1994. Failure to update files as required by instructions of June 21, 1994. Failure to make room in the fireproof safe for tape recordings of district board meetings as instructed on June 21, 1994. Failure to organize the documents needed to compile the Book of Records as instructed on June 21, 1994. Repeated instances of leaving work early for lunch and returning late for work after lunch. There were other instances of her reporting late for work. This delinquency is compounded by her failure to correct her time records to properly reflect her compensable time. Failure to timely report to the Department of Environmental Regulation that there was an April publication oversight. In view of the above circumstances, it is the decision of the board that Ms. Underwood has failed to satisfactorily perform her duties and should be terminated from employment for the Flagler Estates Road and Water Control District. Pursuant to the District Rules of Procedure, Ms. Underwood has twenty-one (21) days in which to request a hearing on her termination before the Board of Supervisors for Flagler Estates Road and Water Control District. This letter is sent directly to you as her representative, based upon your letter dated September 9, 1994 giving notice of representation. Although you have not responded to my correspondence of November 9, 1994 concerning the status of Ms. Underwood, I have no notice that your representation has terminated. I trust you will convey the contents of this letter to Ms. Underwood. If you are no longer representing Ms. Underwood, please advise so that I may contact her directly. On January 18, 1995, Mr. Dobson responded to the charge letter by petitioning for a hearing. In that petition he claimed that Ms. Underwood's procedural and substantive due process rights had been violated by the District through a suspension without hearing, termination without hearing, and action taken by persons not disinterested and unbiased. Mr. Dobson asked that the Ms. Underwood be provided a Section 120.57, Florida Statutes hearing as a person affected by the District's proposed action. Further, Ms. Underwood asked that the case be held before a disinterested hearing officer assigned by the Division of Administrative Hearings, and that through this process Ms. Underwood be reinstated with back pay and granted reasonable attorney's fees. On January 27, 1995, Ms. Hanson requested the Director of the Division of Administrative Hearings assign a hearing officer to conduct a formal hearing. That request was granted. On September 9, 1994, Michele Henson was hired as a temporary secretary to fulfill the duties that Ms. Underwood had performed in the past. Ms. Henson's position as district secretary was made permanent on December 15, 1994. In the permanent position Ms. Henson is entitled to medical benefits and to retirement benefits after three (3) years of service. Ms. Henson presently works an eight (8) hour day, Monday through Thursday each week. Ms. Henson spent four (4) days copying the originals minutes. The minutes were copied from 1971 into 1995. Ms. Henson made copies of the documents in the Book of Records and placed them in a book separate from the book containing the originals. It took Ms. Henson four (4) days to copy the originals in the Book of Records. Ms. Henson's efforts produced copies from the Books of Records from 1971 into 1995. Ms. Underwood admits that she did not make room in the fireproof cabinet to place the verbatim tapes as Mr. Stewart requested. Ms. Underwood indicates that she sent a copy of the newspaper publication concerning the District's request for permit from the DEP, however, Ms. Underwood indicated the newspaper publication sat on her desk for probably around three weeks or so before she dispatched the newspaper publication. Ms. Underwood testified that she sent the newspaper publication with a letter. Her testimony concerning the letter and the newspaper publication is unrefuted and is accepted. Ms. Underwood was not aware that the District might be assessed a fine for failure to publish notice attending a permit request. Ms. Underwood admits that she did not make copies of the original minutes. Ms. Underwood states that she did not organize documents necessary to compile the Book of Records. Her reason was that no one told her what they wanted done. Ms. Underwood states that she had asked on several different occasions to discuss the matter with Mr. Stewart. Her claim that no one had explained the manner in which she was to address to the Book of Records is rejected. Ms. Underwood's assertion that she was never given guidance concerning what was to be removed from the fireproof filing cabinet to make room for the verbatim tapes is rejected. Ms. Underwood admits that she was asked to make copies of original documents so that the originals themselves would be protected. Ms. Underwood acknowledges that she did not start making copies of the Book of Records. The reason given for not doing so was because she was not sure what she was supposed to do. Ms. Underwood's claim that she had not been instructed concerning that issue is rejected. Ms. Underwood's assertion that she had been told to make copies of the minutes from June 1994 forward is rejected. In any event, Ms. Underwood had not made copies of the minutes from June, 1994 forward either. Ms. Underwood indicated that she would be late 10 to 15 minutes on Thursdays when she picked up checks for the District. Ms. Underwood's testimony that she had permission to be late for work when she registered her child is accepted. That permission was given by Mr. Stewart. Ms. Underwood recognized the necessity to advise the supervisor when she was going to be late. Her testimony that she would call a supervisor and get permission when she was late is accepted only as found in Paragraph 132, above. Ms. Underwood acknowledges that her lunch hour for the time period in question was one-half hour. In Ms. Underwood's experience, it took twenty to thirty minutes for a one-way trip to Hastings. Ms. Underwood acknowledged that she would go to lunch in Hastings after Mr. Stewart and Mr. Freeman came on the Board. Those lunch trips were when Ms. Underwood would make a bank deposit or would mail something that she felt needed to be mailed. These trips were normally made on Thursday following Board meetings. Ms. Underwood went to Hastings for lunch after Board meetings on Thursday twice a month. On Thursdays when Ms. Underwood would go and get lunch she would bring her lunch back to the District. As Ms. Underwood describes, at times she would go late to lunch when waiting on a District customer. In these instances, Ms. Underwood did not claim extra time for her employment. Ms. Underwood acknowledges that she participated in a meeting with Mr. Freeman on June 20, 1994. Moreover, she acknowledges that working hours were a matter of concern by the Board and that the employees had been instructed not to leave the District during working hours. Her response to those instructions as they would pertain to trips to Hastings to make bank deposits or for mailing, was that this was something she had always done and she just carried it over. Ms. Underwood also acknowledges the guidelines that were provided on July 7, 1994, concerning her employment. Nonetheless, Ms. Underwood believes that when she made a bank deposit or mailings she was right to do that on District time. Her perception concerning the opportunity to continue the practice of making bank deposits and mailings on District time is contrary to District policy and unacceptable. On October 20, 1994, Ms. Underwood began work with the Association for Retarded Citizens of Putnam County at the rate of $6.50 per hour. She worked 24 hours a week through May of 1995. After that time she has worked 32 hours a week. This is in contrast to the 30 hours per week with the District, where she had sick pay, vacation pay, and the right to voluntary participation in a retirement plan through an IRA. Her work with Association for Retarded Citizens of Putnam County allows sick pay and vacation pay but no retirement. Ms. Underwood received a gross salary of $190.80 a week for 30 hours, EIC and insurance when employed with the District. Other than in instances described Ms. Underwood had performed her duties with the District in an acceptable manner.
Recommendation The District has meet it's burden based upon the facts found as they relate to the allegations set forth in the charge letter, it is, therefore: RECOMMENDED: That a final order be entered terminating Ms. Underwood's employment with the District without further benefits. DONE and ENTERED this 19th day of September, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of September, 1995. APPENDIX The following discussion is given concerning Ms. Underwood's proposed fact finding: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found. Paragraphs 11 and 12 are not necessary to the resolution of the dispute. Paragraph 13 is rejected in the suggestion that the practice of picking up the payroll was condoned. Paragraph 14 is rejected in its suggestion that the practice of making bank deposits and mailing in Hastings was condoned. Paragraph 15 is subordinate to facts found. Paragraph 16 is subordinate to facts found in the first sentence and first phrase to the second sentence. Otherwise, it is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to facts found. COPIES FURNISHED: Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607 J. Michael Davis, Esquire Suite A 24 Northwest 33rd Court Gainesville, FL 32607 Geoffrey B. Dobson, Esquire Law Offices of Dobson and Brown, P.A. 66 Cuna Street St. Augustine, FL 32084 Horace A. Freeman, Sr. Board of Supervisors Flagler Estates Road and Water Control District c/o Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607
Findings Of Fact Respondent William O. Reynolds filed with Respondent Department of Environmental Regulation an application to construct a weedgate and fence at the mouth of a dead-end canal in Atlantis Estates Subdivision located on Big Pine Key in Monroe County, Florida. When the Department noticed its intent to issue a dredge and fill permit to Reynolds, Petitioner James A. Abbanat filed his objection. That cause was referred to the Division of Administrative Hearings for conduct of a formal hearing and was assigned DOAH Case No. 84-1508. On March 8, 1985, a Recommended Order was entered in that cause find in, inter alia, that the proposed project would be constructed in Class III waters of the State (Outstanding Florida Waters), that the weedgate and fence should cause no state water quality violations and should not unreasonably interfere with navigation, that they should actually improve water quality and navigation within the canal and should not significantly decrease water quality outside of the canal, that the project would not be contrary to the public interest, and that the applicant had provided reasonable assurances that the project would not violate Department standards, rules, or applicable statutes. Although the permit application was not certified by a professional engineer registered in the state of Florida, the Recommended Order concluded that that technical deficiency should not form the basis for denying the permit but rather that the permit should be granted with conditions. On April 22, 1985, a Final Order was issued adopting the Recommended Order but denying the permit application solely due to the lack of certification of the permit application by a professional engineer registered in the state of Florida. Despite the denial of his application for a permit, Respondent William O. Reynolds caused to be constructed a weedgate and fence. At some undisclosed time Reynolds did, however, submit to the Department of Environmental Regulation a set of drawings for the fence and weedgate. Although the drawing for the weedgate as built was certified by a professional engineer registered in the State of Florida, no fence drawing was so certified and the fence as built was located differently than the fence as shown in the drawings. The drawings showed a fence extending from the weedgate through the cove at the entrance to the canal for a distance of 200 feet, while the fence as installed is 100 feet in length and is located within the canal itself. On August 19, 1986, Respondents entered into a consent order acknowledging the prior denial of Reynolds" application due to lack of certification of the permit application, reciting that certification had been obtained, and authorizing the project. Interested persons were not notified of the entry of the consent order. Accordingly, when Petitioner Abbanat learned of its existence and filed his objection to the entry of that consent order, the Department of Environmental Regulation afforded the required point of entry into administrative proceedings and referred the matter to the Division of Administrative Hearings for the conduct of a formal hearing. That objection initiated this cause. The weedgate as built is in substantial accord with the plans submitted to the Department by Reynolds and certified by Joel Rosenblatt, a professional engineer registered in the state of Florida. The design, location, and size of the weedgate as built is substantially similar to that proposed in DOAH Case No. 84-1508. The weedgate as built has the same system of cables and weights and is supported by support posts on each side. As built, the weedgate opens in the middle to permit unimpeded ingress and egress of boats. The weedgate causes neither interruption of water flow nor erosion. The effect of the weedgate as built on state water quality standards is the same as the effect determined in DOAH Case No. 84-1508, i.e., the presence of the weedgate causes no water quality violation either in the canal or in the water just outside the gate and fence. The presence of windblown wrack in the canal was the major cause of state water quality violations. The sole purpose of the gate and fence is to prevent wrack from entering the canal and decaying there causing lowered dissolved oxygen levels and anoxic and/or anaerobic conditions. There has been little or no wrack in the canal since the weedgate and fence were installed, and the weedgate and fence are beneficial to and appear to have improved the water quality in the canal. The 200-foot fence across the cove at the mouth at the canal shown in the drawings submitted to the Department of Environmental Regulation does not exist since it has been prohibited by the Department of Natural Resources. Instead, Reynolds constructed a 100-foot fence perpendicular to the north side of the weedgate and joined to the rip-rap on the north side of the canal which forms the south edge of the cove. The fence as built prevents wrack from being blown around the gate into the canal, does not affect the water quality in the canal or in the cove, and does not interfere with navigation. The cove itself collects wrack to some degree under natural conditions and without the fence to the south of it because all discontinuities on the Florida Keys eastern coastline tend to trap windblown wrack until it is moved elsewhere by wind or current. The cove does collect more wrack since the fence was installed than it did before the fence was installed; however, estimating the amount would be speculative. Although Petitioner's lot adjoins the canal, it does not adjoin the cove. The owner of the property which does adjoin the cove favors the existing weedgate and fence. The placement of the weedgate and fence does not interfere with navigation in or out of the canal. It is a policy of the Department of Environmental Regulation to issue a consent order for a project if the project has already been built and is of such design and quality that the Department would be able to issue a permit for it had a proper permit application been filed. The weedgate and the fence are of such design and quality that the Department would be able to issue a permit had Reynolds resubmitted his application showing the revised location of the fence and if the drawings were certified by a professional engineer. It was determined in DOAH Case No. 84-1508 that the project was not contrary to the public interest. Since that time the standard has changed from "not contrary to the public interest" to "in the public interest." Although the Department presented only conclusory evidence that it had received reasonable assurances that the public interest standard is met by the project as built, Petitioner allowed that evidence to stand uncontroverted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving the consent order signed by the Department of Environmental Regulation and William O. Reynolds on August 19, 1985, and ratifying the conditions contained therein. DONE and RECOMMENDED this 21st day of January 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of January 1987. APPENDIX DOAH CASE NO. 86-1091 The Department of Environmental Regulation's proposed findings of fact numbered 1, the first two sentences of 2, 3-5, 10-12, 14-17, 19, and 20 have been adopted either verbatim or in substance in this Recommended Order. The remainder of the Department of Environmental Regulation's proposed findings of fact have been rejected as follows: the third sentence of 2 as not being a finding of fact; the first two sentences of 9 as being unnecessary; the last two sentences of 9 as not being supported by the record; and 13 and 15 as being irrelevant to the issues herein. Respondent Reynolds' proposed findings of fact numbered 1, 5, and 6 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Reynolds' proposed findings of fact have been rejected as follows: 2-4 and 5 as being unnecessary for determination herein, and 7 as being not supported by the record in this cause. Petitioner's proposed finding of fact numbered 5 and the first sentence of number 4 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1 and 2 as being unnecessary; 3 and 6 as not being supported by the record in this cause; 5 and 10 as being contrary to the weight of the credible evidence; and 7 and the second and third sentences of 4 as not constituting findings of fact. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James A. Abbanat 5561 S.W. 3rd 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 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue to be determined by this Recommended Order of Dismissal is whether the Petitioners have standing to challenge a Settlement Agreement in OGC File No. 07-0177 (the Settlement Agreement), entered into by the Department of Environmental Protection (DEP) and Respondents, Allied Universal Corporation (Allied) and Chem-Tex Supply Corporation (Chem-Tex), for the assessment and remediation of contamination at a bleach- manufacturing and chlorine-repackaging facility in St. Lucie County.
Findings Of Fact The Parties The Conservation Alliance is a Florida, not-for-profit corporation in good standing, incorporated in 1985, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. It has approximately 200 members, at least 100 of which reside in St. Lucie County. The Conservation Alliance was formed to “protect the water, soil, air, native flora and fauna, upon which all the earth?s creatures depend for survival.” Indian Riverkeeper is a Florida, not-for-profit corporation in good standing, incorporated in 1999, with its corporate offices currently located at 1182 Southeast Mendavia Avenue, Port St. Lucie, Florida. It has approximately 150 members. The parties agreed, by stipulation, that Indian Riverkeeper has 25 or more members that live in St. Lucie County. Indian Riverkeeper was formed “to enforce local, state and federal environmental laws through citizen suits, [and] scientific and educational programs to increase awareness of citizens? standing to compel government to enforce laws to protect the environment.” The DEP is an agency of the State of Florida having jurisdiction to control and prohibit pollution of air and water, pursuant to chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP took the enforcement action that culminated in the entry of the Settlement Agreement that is the subject of this proceeding. Allied owns and operates the Facility, and is responsible for the remediation of contamination resulting from activities at the Facility. Chem-Tex owns the real property on which the Facility is located. Entry of the Settlement Agreement On June 21, 2010, the DEP, Allied, and Chem-Tex entered into the Settlement Agreement that is the subject of this proceeding. The Settlement Agreement required Allied and Chem- Tex to pay a monetary penalty to the DEP, and to identify, prevent, and remediate contamination on the Facility. The Settlement Agreement required publication of a notice of the Settlement Agreement, which provided that persons whose substantial interests are or will be affected could, within 45 days of the date of publication, petition for a hearing to challenge the proposed Settlement Agreement. The notice was published on June 28, 2010. Thus, the last date for filing a timely petition was August 12, 2010. On August 12, 2010, Petitioners electronically filed their Petition with the DEP. Allegations of Standing Petitioners alleged standing to challenge the Settlement Agreement based on the following, as set forth in the Petition: The Conservation Alliance is a conservation group based in Fort Pierce, Florida, organized for the purpose of protection of the State?s natural resources, including drinking water, and the rivers and other waters in St. Lucie County. Indian Riverkeeper is a citizen?s group, organized for the purpose of protecting and restoring the State?s natural resources within St. Lucie County. Members of both the Conservation Alliance and Indian Riverkeeper own real property within St. Lucie County. Substantial amounts of hazardous waste have contaminated the Facility, which has caused significant environmental harm to the groundwater underlying the site and resulted in off-site surface water discharges. Contamination is spreading to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes. St. Lucie County has proposed a major drinking water wellfield within one-quarter mile of the Facility, which use is endangered by the existing groundwater contamination. Petitioners have a substantial interest in ensuring that Allied and Chem-Tex comply with requirements established by the Resource Conservation and Recovery Act. The DEP has executed a Settlement Agreement that will become valid and destroy the DEP?s right to seek additional penalties and enforcement relating to Allied?s violations. Allied?s past violations have created substantial plumes of contaminants in the groundwater system underlying its property, which if not remediated may migrate off-site and contaminate deeper zones of the surficial aquifer system. Standing -- Effects of Contamination Petitioners alleged that deficiencies in the Settlement Agreement may affect their substantial interests due to the effects of the contamination on the interests of their members, who use the potable water and other resources affected by the contamination. The only testimony offered at the hearing as to the use of the lands in the vicinity of the Facility was offered by Anthony Brady, the current president of the Conservation Alliance, who knew of no members of the Conservation Alliance that used any lands within five miles of the Facility. There was no testimony or other evidence offered regarding the use of lands in the vicinity of the Facility by any member of Indian Riverkeeper. As to the allegations that deficiencies in the Settlement Agreement would affect “potable water and irrigation wells located in the immediate vicinity of the facility,” there was no evidence that any member of the Conservation Alliance or Indian Riverkeeper received service from those wells. Mr. Brady and Elaine Souza receive water service from unidentified public water supply sources in St. Lucie County. Kevin Stinnette receives water from a source other than the Fort Pierce Utilities Authority. There was no allegation or evidence that the sources of their water were threatened by the contamination -- regardless of whether any such threat could be proven on the merits. There was no competent, substantial, non-hearsay evidence as to a particular source of potable water for any member of either the Conservation Alliance or Indian Riverkeeper that would “connect the dots” between the general allegations of groundwater contamination at the Facility, and the potable water supply of any member. For example, Petitioners alleged that their members own property in St. Lucie County, and that contamination is spreading from the Facility to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes and, that if not remediated, such contamination may impact deeper zones of the surficial aquifer system and affect potable water and irrigation wells in the vicinity of the Facility. However, Petitioners utterly failed to prove that any of their members use, own, or have any interest in the adjacent properties that are in jeopardy of being contaminated, or that they are served by any of the potable water or irrigation wells alleged to be threatened by the contamination. The undersigned -- having accepted the allegations in the Petition of adverse effects of the contamination at the Facility and the deficiencies of the Settlement Agreement, having accepted and applied the testimony and evidence taken at the hearing, and without going to the merits of the Settlement Agreement -- is unable to find, based on the record of this proceeding, that Petitioners? substantial rights could be affected by the Settlement Agreement. Thus, Petitioners failed to produce the quantum of admissible, non-hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Effects on Recreational Use In addition to the foregoing, Petitioners assert in their Proposed Recommended Order that “[a] substantial number of [their] members use, recreate, and protect the waters of St. Lucie County,” and that those members could be adversely affected by exposure to contamination due to the proximity of the Facility “to nearby navigable water bodies, fisheries, rivers and streams from which Conservation Alliance and Indian Riverkeeper members are provided with potable water and recreation.” The Conservation Alliance holds an Annual “Party in the Park” at the Fort Pierce Inlet State Park, and has monthly meetings at the Savannas State Preserve Education Center. There was no allegation or evidence as to how either of those locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Indian Riverkeeper holds an annual “Mullet Run Festival” in Fort Pierce, and “other quarterly events that are sort of like our meetings” at locations in Fort Pierce and Jensen Beach, Florida. The venues for the Indian Riverkeeper events, beyond the cities in which they were held, were not identified. There was no allegation or evidence as to how those particular locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Mr. Brady understood that one of Petitioners? members, George Jones, fishes in the C-24 canal. Mr. Brady has not personally fished in the C-24 canal for 25 years. Mr. Brady otherwise provided no evidence of the extent to which he or any members of the Conservation Alliance used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance or Indian Riverkeeper. There was no evidence offered as to how many of those persons were members of either of the Petitioners, as opposed to friends that have visited his house to fish off of the dock, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones told him that he kayaked in the waters of St. Lucie County. However, as to the recreational activities of other Conservation Alliance members, Mr. Stinnette testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? recreational use of the waters of St. Lucie County is the hearsay testimony of Mr. Brady and Mr. Stinnette, which is not sufficient to support a finding of fact as to Mr. Jones? use. The only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance and Indian Riverkeeper is limited to a single member, Mr. Stinnette, who is a member of both organizations. Based thereon, Petitioners failed to prove that a substantial number of their members make any recreational or other use of the waters of St. Lucie County. Thus, Petitioners failed to produce the quantum of admissible, non- hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact to their substantial rights of use, recreation, and protection of the waters of St. Lucie County which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Other Issues Petitioners, and primarily Indian Riverkeeper, allege that their substantial interests are affected by the inadequacy of the penalty assessed in the Settlement Agreement, and by the purported preclusion of their right to “bring[] a citizen suit against Allied and Chem-Tex for their chemical spills . . . for violation of the Clean Water Act if it were not for the settlement negotiations taking place between Allied and the FDEP.” As to the issue of the inadequacy of the monetary penalty, the undersigned finds that the penalty to be assessed and paid by Respondents to the DEP has no effect on the substantial interests of Petitioners or their members. In that regard, the economic component of the Settlement Agreement does not result in any of Petitioner?s members being exposed to contaminants, or in any restriction on their recreational or other uses of the lands or waters of St. Lucie County. Therefore, the penalty amount does not result in an injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Cf. Dillard & Assocs. Consulting Eng'rs v. Fla. Dep't of Envtl. Prot., 893 So. 2d 702 (Fla. 1st DCA 2005) (finding no standing on the part of a DOT contractor to challenge an administrative penalty levied by the DEP against DOT, even when the penalty may, at some time in the future, be assessed against the contractor). As to the injury resulting from the alleged restriction on Petitioners? rights to bring a federal lawsuit under the Clean Water Act, there was no evidence of any current intent on the part of Petitioners to bring such a lawsuit, nor was there any evidence, beyond the bare assertion, of any such restriction or preclusion on bringing a suit. Thus, Petitioners failed to prove any injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Furthermore, the effect of agency action on the ability of a person to bring an independent action in another forum is not an injury of the type or nature that this proceeding is designed to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Administrative Proceedings. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
Conclusions Pursuant to notice, the Division of Administrative Hearings (DOA), by its duly designated administrative law judge, the Honorable Donald R. Alexander, held a formal administrative hearing in the above-styled case on October 20 and 21, and November 6, 1997, in Gainesville, Florida. A. APPEARANCES For Petitioners, GREENSPACE PRESERVATION ASSOCIATION, INC.; FRANK WARD; SAL LOCASCIO; FREDERICK P. PETERKIN; AND HAROLD M. STAHMER.:: Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 For Respondent, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT (District staff): Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 For Respondent, CITY OF GAINESVILLE. (the City): Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110 On December 19, 1997, Judge Alexander submitted to the St. Johns River Water Management District, and all other parties to this proceeding, a Recommended Order, a copy of which is attached hereto as Exhibit "A." District staff filed exceptions to the Recommended Order. This matter then came before the Governing Board on January 14, 1996, for final agency action. B. STATEMENT OF THE ISSUE The issue in this case is whether the City’s applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved. C. RULINGS ON EXCEPTIONS RESPONDENT DISTRICT STAFF’S EXCEPTIONS 1. Exception 1 District staff take exception to conclusion of law 60 and assert that the Administrative Law Judge’s conclusion the City provided reasonable assurances that its notice general permit application meets the requirements of Rule 40C-400.475(2), Florida Administrative Code (F.A.C.), is not complete in that the Judge should have also cited Rule 40C400.475(1), F.A.C. The Governing Board may reject or modify conclusions of law and interpretation of administrative mules over which it has substantive jurisdiction. §120.57(1)G), Fla. Stat. (1997). Rule 40C-400.475(1), F.A.C., sets forth certain size thresholds which a project must be below to qualify for this noticed general environmental resource permit, A project must both be below these size thresholds and meet the conditidns of Rule 40C-400.475(2), F.A.C., to be authorized by this noticed general environmental resource permit. , In this case, the Administrative Law Judge found that the activity for which this noticed general environmental resource permit is sought involves piling supported structures. (Finding of Fact 39) The Administrative Law Judge found that the total area of the proposed bridge and boardwalk over surface waters or wetlands is approximately 481 square feet. (Finding of Fact 41). The Administrative Law Judge determined that the affected waters, Hogtown and Possum Creeks are designated Class HI waters. (Finding of Fact 41)” Since the City’s application for this noticed general environmental resource permit involves piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters, District staff's exception number one is accepted, and Conclusion of Law 60 is modified to read that the District’s requirements applicable to the City’s noticed general environmental resource permit application are found in Rule 40C-400.475(1) and (2), F.A.C., and that the City has provided reasonable assurances that the project meets these requirements. 2. Exception 2 In its exception 2, District staff takes exception to the Administrative Hearing Officer’s ultimate recommendation of approving the subject applications. District staff asserts that in his recommendation, the Administrative Hearing Officer did not set forth the relevant conditions which are to be a part of the recommended permits. District staff asserts that these conditions were implicitly accepted by the Administrative Law Judge in making his recommendation. "As to the application for the stormwater permit, we note that Rule 40C-42.032, F.A.C., provides that, unless waived or modified by the Board, certain limiting conditions are placed on every permit issued by the District under Chapter 40C-42, F.A.C. These conditions are set forth in Rule 40C-43.032(2)(a), F.A.C. These same conditions are set forth in District staff's Exhibit 3A which was admitted. (See Preliminary Statement portion of Recommended Order) The record does not indicate that any party objected to these conditions, or that the Administrative Law Judge otherwise thought they should be changed or waived. No party has objected to the District staff's exception on this point. Thus, District staff's Exception 2 is accepted as to the standard conditions in Rule 40C- 43.032(2)(a), F.A.C., and these standard conditions shall be a part of the City’s stormwater permit. District staff’s Exception 2 also asserts that Special ERP conditions 1, 7, 8, 9, and 28, and Other Conditions 1, 2, and 3, should be attached to the stormwater permit. Special ERP conditions 1, 7, 8, 9, and 28 were set forth in District staff's Exhibit 3B which was admitted. (See Preliminary Statement portion of Recommended Order). Other conditions 1 and 2 were set forth in the City’s Exhibit 19 (consisting of the District staff s technical staff report for the stormwater permit) which was admitted. Other condition 3 was set forth in District staff’s Exhibit 4 which was admitted. The record does not indicate that any party objected to any of these conditions. Moreover, the Administrative Law J udge’s findings of fact reflect the requirements of these conditions. For example, other condition number 3 is referred to in Finding of Fact 17, special condition 7 is referred to in Finding of Fact 24, and the monthly sinkhole monitoring requirements of special condition 8 is reflected in Finding of Fact 33. Thus, it appears the Administrative Law Judge assumed the application of these special conditions in determining that reasonable assurances were provided. Therefore, District staff's Exception 2 is accepted on this point, and these conditions shall be a part of the City’s stormwater permit. As to the application for the noticed general permit, Rule 40C-400.215, F.A.C., requires several standard conditions, set forth in that tule, to be applied to all noticed general environmental resource permits. This conditions were also set forth in the City’s Exhibit 20 which was admitted. There is nothing in the record or the Administrative Law Judge’s findings of fact that indicates that these conditions should not be applied to this noticed general environmental resource permit. Therefore, District staff's Exception 2 is accepted on this point, and the conditions of Rule 40C-400.215, F.A.C., shall be a part of the City’s noticed general environmental resource permit. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated December 19, 1997, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (rulings on District staff’s Exceptions 1 and 2). The City of Gainesvilles’ applications numbered 42-001-0789AIG-ERP and 400-001- 0309AIG-ERP for a stormwater environmental resource permit and noticed general environmental resource permit, respectively, are hereby granted under the terms and conditions provided herein. . DONE AND ORDERED this A ay of January 1998, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Sea DAN ROACH RENDERED this 79 day ‘leary CHAIRMAN Z. PATRICIA C. SCHUL DISTRICT CLERK copies to: DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building = 77" > > 1230 Apalachee Parkway Tallahassee, Florida 32399-1550; Jennifer B. Springfield, Esquire Mary Jane Angelo St. Johns River Water management District Post Office Box 1429 Palatka, FL 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
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 granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2008.
The Issue The issues are whether Respondents constructed a dock and walkway on state lands in Collier County, Florida, without obtaining authorization, and if so, whether an administrative fine should be imposed for this action; and whether certain corrective action should be taken by Respondents, as described in Petitioner's First Amended Notice of Violation, Orders for Corrective Action, and Administrative Fine Assessment (First Amended NOV) filed on March 24, 2015.
Findings Of Fact The Board is responsible for overseeing state-owned lands and ensuring that they are managed in trust for the citizens of the state. The Department of Environmental Protection (Department) performs all staff duties and functions related to the administration of state lands. See § 253.002(1), Fla. Stat. Pursuant to that authority, the Department has prosecuted this action on behalf of the Board. Since December 1, 2005, Respondents, Margarita Quintero and Thomas Patas, as tenants in common, have owned property at 1899 Sheffield Avenue, Marco Island, Florida. See Bd. Ex. G. The property is more specifically identified as Parcel ID No. 57200400000, Section 16, Township 52 South, Range 26 East. A narrow wooden walkway extends in a south-southeasterly direction from Respondents' property to a small terminal platform in Barfield Bay, a waterbody that lies south of Respondents' lot. See Bd. Ex. C. The Board owns uplands located in Section 16, Township 52 South, Range 26 East, and those sovereign submerged lands of Barfield Bay lying adjacent to Section 16. Those lands are described as follows: Lots 22 and 23, Block 149 and Lot 10, Block 150, and that portion of Dogwood Drive lying between Lots 22 and 23 and Lot 10, of the subdivision of Marco Beach Unit Five recorded in Plat Book 6, Pages 39 through 46, Public Records of Collier County. See Bd. Ex. G-2. Most of the uplands were deeded to the state in 1985 pursuant to a settlement agreement with The Deltona Corporation, while a small sliver of land was deeded to the state in September 2013. Respondents' property is located adjacent to these state-owned lands. On March 28, 2012, the Department received a complaint from a third party that the walkway and dock had been constructed adjacent to Respondents' property. In a letter dated April 19, 2012, the Department warned Respondents of "possible violations of the law." See Bd. Ex. J. The letter stated that the Department believed Respondents were responsible for a dock being installed on state-owned lands and mangroves had been altered for the installation of the dock. The letter also noted that Respondents' property did not appear to be riparian. Respondents were requested to contact the Department within 15 days to arrange a meeting to discuss these issues. Respondents did not reply to the letter or meet with Department representatives. On June 14, 2012, the Department recorded a Notice of Unauthorized Structure (NOUS) in the public records of Collier County. See Bd. Ex. H. The NOUS was intended to serve as notice to prospective purchasers and other interested persons that certain unauthorized structures were located on state lands adjacent to Respondents' property. There is no evidence that Respondents responded in any manner to the NOUS. On December 10, 2012, a Department Environmental Specialist III conducted an inspection of the walkway and dock. He observed a two-foot wide access walkway extending 335 feet from Respondents' property, which terminated at a 63-square-foot terminal platform (dock) in Barfield Bay. The total dock size is 733 square feet, while the walkway encompasses around 670 square feet. See Bd. Ex. A. A follow-up inspection on January 12, 2015, revealed that the structure had not been removed. See Bd. Ex. K. Property records and a coastal engineering site survey confirm that the structure passes over state-owned uplands before crossing the Mean High Water Line and onto sovereign submerged lands in Barfield Bay. See Bd. Ex. C. There is no evidence that Respondents obtained authorization to construct the walkway and dock. To determine when the dock and walkway were constructed, the Department reviewed aerial images of the property taken in 2004, 2006, 2009, and 2012. See Bd. Ex. B. The walkway and dock did not appear until the 2012 image. This confirms that Respondents constructed the walkway and dock after they purchased their property in December 2005. The First Amended NOV seeks to impose an administrative fine on each Respondent in the amount of $2,500.00 for unauthorized use of sovereign submerged land. If the walkway and dock are removed within 20 days, no fine will be imposed. For every day after the 20 days that removal does not occur, the Board intends to impose a fine accruing at a rate of $10,000.00 per day. As corrective action, the Board proposes generally that Respondents remove the walkway and dock within 20 days from the date of a Final Order; that during such removal steps be taken to ensure that no further impacts to mangroves, wetlands, and bay bottom occur; that water quality be protected during this process; and that the material be disposed of in an appropriate upland location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order sustaining the charges in the First Amended NOV. Within 20 days of the entry of a final order, each Respondent shall pay $2,500.00 to the Department. Payments shall be made by cashier's check or money order payable to the "Internal Improvement Trust Fund." All payments shall be sent to the Department of Environmental Protection, South District, SLERP Section, Post Office Box 2549, Fort Myers, Florida 33902-2549. If Respondents complete removal of the walkway structure and dock from Board property in accordance with the corrective action described in paragraph 19, Respondents do not have to pay the fines. If Respondents fail to complete removal of the dock and walkway structure in accordance with the corrective action, the fine will begin accruing at a rate of $10,000.00 per day. DONE AND ENTERED this 5th day of May, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 5th day of May, 2015.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of September, 2009.
