Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
The Issue The issues are whether Respondent Lennar Homes, Inc., is entitled to an environmental resource permit to construct a 516- acre residential development in Miami-Dade County known as Lakes by the Bay South Commons Project and, if so, under what conditions.
Findings Of Fact On May 18, 2001, Respondent Lennar Homes, Inc. (Lennar Homes), filed an application with Respondent South Florida Water Management District (District) for an environmental resource permit (ERP) for a 516-acre residential development in Miami- Dade County known as Lakes By The Bay (Project). On June 12, 2002, Lennar Homes filed a revised ERP application for the Project. The application, as revised, is for an ERP conceptually approving the construction of a surface water management system to serve the Project and authorizing the construction to clear the site, excavate the wet retention areas, and expand an existing lake. Providing 3300 single- family residences, the Project is the last phase of a master planned residential development, which presently contains over 1500 residences north and west of the Project. The Project is bordered by Southwest 97th Avenue to the west, Southwest 87th Avenue to the east, Southwest 216th Street to the north, and Southwest 232nd Street to the south. Immediately south of the Project are a regional wastewater treatment plant and county solid waste landfill. These facilities occupy opposing banks of the C-1 Canal, which runs a short distance from the southwest corner of the Project. The Project site is drained, cleared, and infested with Brazilian pepper and melaleuca. The Project will impact 135 acres of wetlands, but these wetlands are severely degraded due to the construction of roads, berms, and canals. No evidence suggests that the site is presently used by any listed species. At present, drainage across the site is from west to east, where stormwater is intercepted by the L-31E levy and canal running along the west side of Southwest 87th Avenue. At its nearest point (the southeast corner), the Project is about one mile from the southern part of Biscayne Bay. Biscayne Bay is an Outstanding Florida Water. Much of its central and southern parts, including the area closest to the Project site, are within Biscayne National Park. In contrast to the northern part of Biscayne Bay, the central and southern parts contain significant mangrove-lined coastal wetlands. The bay bottom in southern Biscayne Bay hosts dense seagrass beds, and coral reefs within Biscayne National Park support a diverse community of marine life. The L-31E levy and canal redirect stormwater from the Project site south to the C-1 Canal, which runs, in this area, in a northwest-to-southeast direction before emptying into Biscayne Bay. The C-1 Canal drains an extensive area to the north and northwest of the Project. The landfill and water treatment plant are a short distance downstream of the Proposed Project. The parties have stipulated that the Project meets the following ERP criteria (with minor rephrasing from the stipulation): The Project will not adversely affect significant historical and archaeological resources. The Project is not located within an Outstanding Florida Water and will not result in the direct discharge of surface water into an Outstanding Florida Water. Lennar has proposed mitigation to offset the adverse impacts of the Project, and the mitigation is in the same drainage basin as the adverse impacts. Therefore, the Project will not generate unlawful cumulative impacts, in violation of Section 373.414(8)(a)-(b), Florida Statutes. The Project will not cause adverse water quality impacts to receiving waters and adjacent lands, in violation of Rule 40E-4.301(a), Florida Administrative Code. The Project will not cause adverse flooding to onsite or offsite property, in violation of Rule 40E-4.301(b), Florida Administrative Code. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities, in violation of Rule 40E-4.301(c), Florida Administrative Code. The Project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes, in violation of Rule 40E-4.301(g), Florida Administrative Code. The Project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes, in violation of Rule 40E-4.301(h), Florida Administrative Code. The Project will be conducted by an entity with sufficient financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, as required by Rule 40E-4.301(j), Florida Administrative Code. No special basin or geographic area criteria established in Chapter 40E-41, Florida Administrative Code, are applicable to the Project. The Project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling, as prohibited by Section 373.414(1)(a)3, Florida Statutes. The Project will be permanent, as addressed by Section 373.414(1)(a)5, Florida Statutes. The District issued its Staff Report on March 13, 2002. The Staff Report approves the proposed mitigation plan, which would enhance or create and preserve 135 acres of onsite wetlands by creating an upland buffer, emergent marsh and transitional herbaceous shrub areas, and tree island areas. Much of the proposed mitigation area will occupy the southern half of the perimeter of the Project site. As proposed in the mitigation plan, Lennar Homes will grant the District a conservation easement over the mitigation area and will be required to meet certain mitigation performance conditions. Shortly prior to the commencement of the final hearing in this case, the District decided to change the proposed permit regarding mitigation. The purpose of the change was to require Lennar Homes to allow the mitigation area to be used as a flowway between the C-1 Canal, upstream of the nutrient loads deposited by the landfill and water treatment plant, and an area to the east of the Project site. The receiving area consists of vestigial tidal creeks leading to presently remaining tidal creeks that empty into small embayments within Biscayne Bay. The general purpose of the change was to remediate the loss of freshwater flows into these tidal creeks, the embayments, and Biscayne Bay that resulted from the construction of drainage canals and levies, such as C-1 and L31-E. Accordingly, the District issued an Addendum to Staff Report on August 9, 2002. The Addendum adds an easement to the original mitigation plan by adding Special Condition #24, which states: No later than 30 days after permit issuance and prior to commencement of construction resulting in wetland impacts, the permittee shall submit two certified copies of the recorded flowage easement for the mitigation area and associated buffers and a GIS disk of the recorded easement area The recorded easement shall be in substantial compliance with Exhibit 41. Any proposed modifications to the approved form must receive prior written consent from the District. The easement must be free of encumbrances or interests in the easement which the District determines are contrary to the intent of the easement. . . . Exhibit 41 (actually Exhibit 41A) is entitled, "Perpetual Flowage, Inundation, Construction, and Access Easement." Representing a grant from Lennar Homes to the District, the easement (Flowage Easement) is for any and all purposes deemed by [the District] to be necessary, convenient, or incident to, or in connection with, the unrestricted right to regularly, or at any time, and for any length of time[,] overflow, flood, inundate, flow water on, across, and through, store water on, and submerge the [encumbered property], together with the unrestricted right at any time to enter upon and access the [encumbered property], with any and all vehicles and equipment, including but not limited to the right to move, transport, store, operate, and stage equipment, materials and supplies, in order to construct, operate, and maintain any and all structures, improvements, equipment, pumps, ditches and berms upon the [encumbered property] deemed by [the District] to be necessary, convenient, incident to or in connection with the implementation of the BBCW Project on the [encumbered property], or in connection with any project in the interest of flood control, water management, conservation, environmental restoration, water storage, or reclamation, and allied purposes, that may be conducted now or in the future by the [District], or to carry out the purposes and intent of the statutory authority of the [District], presently existing or that may be enacted in the future, together with all right, title, and interest in and to the [BBCW] Project Structures. * * * This Easement shall at no time be construed to alleviate or release [Lennar Home's] responsibilities and require [sic] under ERP Permit No. to construct and maintain an on-site mitigation area as described and authorized in the ERP Permit. Other provisions of the Flowage Easement impose all risk of loss in connection with the flowway upon Lennar Homes, which indemnifies the District from all losses, costs, damages, and liability in connection with the flowway. On September 5, 2002, after the hearing, but a few days before the taking of the post-hearing testimony, the District issued a Revised Addendum to Staff Report. The Revised Addendum restates Special Condition #24 with a few relatively minor changes and adds Special Conditions ##25 and 26. Special Condition #25 attempts to harmonize the Flowage Easement with the original mitigation plan contemplated by the Staff Report. Special Condition #25 provides that when the District exercises its rights under the Flowage Easement, other special conditions shall be deleted, so as, for example, to relieve Lennar Homes of its obligations to maintain the mitigation area (except for a 25-foot buffer) and post a mitigation-performance bond. Special Condition #26 changes the language in the conservation easement, which was contemplated by the original Staff Report and mitigation plan, to harmonize this easement with the Flowage Easement. Lennar Homes has submitted a version of the Revised Addendum to Staff Report that would satisfy its concerns. The Lennar Homes version would require the District, within 30 days after issuing the ERP to Lennar Homes, to obtain permits from the U.S. Army Corps of Engineers and the local environmental regulatory agency, although not the Florida Department of Environmental Protection, which, under state law, would have to issue an ERP to the District before it could construct the flowway. The Lennar Homes version would also give the District only 90 days after issuing the ERP to Lennar Homes within which to exercise its right to construct the flowway and would sequence events so that Lennar Homes would not spend the estimated $2 million on wetland enhancement and creation and then lose the investment due to the inundation of the mitigation site with water, as authorized by the Flowage Easement. The Comprehensive Everglades Restoration Plan plays a crucial role in this case. But for this plan, the District would not have attached the additional conditions contained in the Addendum to Staff Report and Revised Addendum to Staff Report--without which conditions, the District now contends that Lennar Homes is not entitled to the ERP. Congress initially authorized the Central and Southern Florida (C&SF) Project in 1948. Objectives of the C&SF Project included flood control, water supply for municipal, industrial, and agricultural uses, prevention of saltwater intrusion, and protection of fish and wildlife. The C&SF Project attained these objectives, in part, through a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of freshwater into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study (Restudy). The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region. Completed in April 1999, the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (Restudy Report) notes that, among the unintended consequences of the C&SF Project, was "unsuitable freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon [that] adversely impact salinity and physically alter fish and wildlife habitat." The Restudy Report states that, absent comprehensive, new restoration projects, the "overall health of the [South Florida] ecosystem will have substantially deteriorated" by 2050. The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. This plan is known as the Comprehensive Everglades Restoration Plan (CERP). Acknowledging the complex dynamics of the restoration goals identified in CERP, the Restudy Report establishes Project Implementation Reports to tie together CERP and the detailed design necessary for the construction of individual restoration projects and adaptive assessments to monitor the performance of individual components, incorporate new data, and refine future components. The Restudy Report is, among other things, a programmatic environmental impact statement. The Restudy Report states: "Due to the conceptual nature of [CERP] and the associated uncertainties, many subsequent site-specific environmental documents will be required for the individual separable project elements." In May 2002, the District and U.S. Army Corps of Engineers completed a draft of the Project Management Plan for the Biscayne Bay Coastal Wetlands (BBCW PMP). Noting that a "major goal of [CERP] is to improve freshwater deliveries to Biscayne Bay," the BBCW PMP identifies the BBCW project as the means by which to restore some of the coastal wetlands and tributaries in south Dade County. The BBCW PMP states that the primary purpose of the BBCW project, which is one of sixty projects contained in CERP, is to "redistribute freshwater runoff from the watershed into Biscayne Bay, away from the canal discharges that exist today and provide a more natural and historic overland flow through existing and or improved coastal wetlands." The Cutler Wetlands subcomponent of the BBCW project encompasses the Project site. One of the objectives of the Cutler Wetlands subcomponent is to divert water from the C-1 Canal upstream of the landfill and water treatment plant to the east of the L-31E levy and canal. In connection with the Cutler Wetlands subcomponent and the possible role of the flowway identified in this case, the District retained Dr. John Meeder, a Biscayne Bay ecologist associated with the Southeast Environmental Resource Center at Florida International University, to perform an abbreviated study and issue a report concerning the conditions required for the restoration of the coastal wetlands in the vicinity of the coastal wetlands to the north of the C-1 canal and east of the Project site (Meeder Report). The Meeder Report studies two feasible freshwater delivery options and prefers a bypass flowway along Southwest 224th Street, across roughly the middle of the Project site and north of most of the proposed mitigation area, to the L-31E levy and canal. The distribution system resulting from the preferred route would use the natural grade of the land to divert the water to the coastal wetlands and tidal creeks to the east and south that are targeted for rehydration. The alternative flowway route would run along Southwest 232nd Street, in the approximate area of the Flowage Easement, but would require pumping to distribute the water north along the L-31E levy and canal for release to the targeted coastal wetlands and tidal creeks. Obviously, the District has chosen the less-preferred route to minimize the impact on the Project. The Meeder Report considers the amount of freshwater required for two rehydration options. In the first option, water diverted from the C-1 Canal and passing through the flowway would rehydrate only the tidal creeks, which then empty into the embayments that lead to Biscayne Bay. In the second option, water diverted from the C-1 Canal and passing through the flowway would rehydrate the tidal creeks and the surrounding coastal wetlands. To maintain an appropriate salinity range and rehydrate only the tidal creeks, the flowway would need to deliver 70 acre/feet per day in the dry season and 95 acre/feet per day in the wet season. To maintain an appropriate salinity range and rehydrate the tidal creeks and surrounding coastal wetlands, the flowway would need to deliver 209 acre/feet per day in the dry season and 1139 acre/feet per day in the wet season. Several factors militate against an attempt to rehydrate the coastal wetlands surrounding the targeted tidal creeks. Potential errors in data and analysis increase in magnitude with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands, and Dr. Meeder admitted that the largest value was very approximate. Potentially serious impacts upon salinity and associated vegetative communities increase in likelihood with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands. Also, the diversion of larger volumes of water from the C-1 Canal may have adverse impacts on downstream conditions. At the point of the C-1 Canal where it first enters the landfill and wastewater treatment plant (just downstream from the flowway), the average flow of the C-1 Canal is 350 acre/feet per day, but the median flow is only 160 acre/feet per day. (The average flow rate is skewed by occasional, very high daily flows of 4000 acre/feet during large storm events.) The larger volumes diverted to rehydrate the tidal creeks and surrounding coastal wetlands would, at times, withdraw a relatively large portion of the water from the C-1 Canal. For these reasons, the District justifiably elected to seek a flowway that would rehydrate only the tidal creeks, including the vestigial tidal creeks, but not the surrounding coastal wetlands. Petitioners and Lennar Homes have raised numerous other issues about the flowway that the District seeks to obtain. The District requires a 200-acre flowway to rehydrate adequately the vestigial tidal creeks, the presently remaining tidal creeks, the small embayment, and then the subject area of Biscayne Bay, but the mitigation area potentially available on the Project site is limited to about 135 acres, and some uncertainty exists as to whether the District can obtain control of the remaining land necessary to assemble a 200-acre flowway. Even the 200-acre flowway is probably insufficient to accommodate significant water treatment, so water quality issues remain outstanding, notwithstanding the better water quality upstream of the landfill and water treatment plant. Other issues arise from the requirement that the District obtain an ERP from the Florida Department of Environmental Protection, as well as one or more federal agencies, before it could construct the flowway. To the extent that this requirement delays and possibly precludes the construction of the flowway, this requirement militates against the inclusion of the Flowage Easement and new special conditions in the ERP. To the extent that this requirement insures that the flowway will not cause flooding or adverse water quality in the tidal creeks, embayment, and ultimately Biscayne Bay, this requirement militates in favor of the inclusion of the Flowage Easement and new special conditions in the ERP; the absence of detailed specifications for the design and construction of the flowway precludes any assurance that the flowway would not flood or otherwise damage the upland portion of the Project site, so subsequent permit-review is essential to the present inclusion of the Flowage Easement and new special conditions in the ERP. It is impossible to credit the District's evidence that various transition-zone wetland species would survive inundation under unknown flow rates, of variable depths, and of unknown and possibly indefinite duration. Lennar Homes legitimately is concerned that its substantial investment in mitigation, pursuant to the original mitigation plan, would be wasted if the District constructs the flowway. As presently drafted, the Flowage Easement and new special conditions contemplate that Lennar Homes would construct the original mitigation, at a substantial cost, and the District would later construct and inundate the flowway through largely the same area. Marketing of parcels in close proximity to the flowway might be complicated by the uncertainty concerning what will occupy the area beyond a resident's backyard--a benign passive mitigation area or a flowway that may range from a intermittently wet slough or glade to a placid lake to a raging swollen river--and by the probability that the District would not construct the flowway until 2009. The District justifies the Flowage Easement and new special conditions on two grounds. First, the District contends that the ERP without the Flowage Easement and new special conditions is harmful to the District's water resources. Second, the District contends that the ERP without the Flowage Easement and new special conditions is inconsistent with the overall objectives of the District. The first argument misses the mark. A project that is otherwise permittable, except for the fact that it interferes with the establishment of a restoration project, does not harm the water resources of the District; such a Project interferes with the improvement of the water resources of the District. In this case, the parties have stipulated that the Project will not cause adverse impacts due to the original mitigation plan. If adverse impacts means anything, it means harm to the water resources of the District. The second argument requires the identification of the District's objectives. The Florida Legislature has declared at Section 373.1502(2)(a), Florida Statutes, that CERP implementation is "in the public interest and is necessary for restoring, preserving and protecting the South Florida ecosystem . . .." In May 2000, the Florida Legislature enacted the Everglades Restoration Investment Act, which commits Florida to contribute over $2 billion for the implementation of CERP-- Florida's share for the first ten years of implementation. The Florida Legislature has made the implementation of CERP an overall objective of the District. Several factors are important in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP. These factors require consideration of the purpose of the proposed restoration project; the extent of completion of the project's design, permitting, and construction; if the project has not yet been designed or permitted, the likelihood of construction; when the project would be constructed; the impact of the ERP without the Flowage Easement and new special conditions upon the proposed restoration project; and the existence of feasible alternatives to accomplish the same objectives as those achieved by the proposed restoration project. These factors generally favor the issuance of the ERP, but only with the Flowage Easement and new special conditions. The flowway project would rehydrate a portion of the estuarine waters of southern Biscayne Bay that are sufficiently healthy to respond vigorously to the new freshwater infusions, so the project is important. The C-1 Canal appears to be the only readily available source of sufficient volumes of freshwater to achieve the rehydration of the tidal creeks, and the proposed path through the Lennar Homes mitigation area appears to be the only readily available means by which to divert the freshwater to the targeted tidal creeks. If the flowway project is limited to the tidal creeks and does not extend to the surrounding coastal wetlands, the likely environmental impacts appear to be positive on the receiving areas and the downstream portion of the C-1 Canal. For these reasons, even though the project is at an early conceptual stage and construction would not start for six years, it seems likely to be constructed. The apparent difficulty in securing the necessary additional 65 acres may yet be overcome through property acquisition, and, if not, the District may be able to increase the capacity of the flowway without jeopardizing the adjacent uplands. For the reasons stated in the Conclusions of Law below, other factors in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP require consideration of the impact upon Lennar Homes in accommodating the Flowage Easement and new special conditions. With two exceptions, the Flowage Easement and new special conditions do not impose an inordinate burden upon Lennar Homes. The flowway would occupy the portion of the Project site that would have been subject to the conservation easement that was part of the original mitigation plan. Lennar Homes' responsibility for maintenance is considerably lessened if the District constructs the flowway, whose special maintenance needs can only be met by the District or its contractors. Although Lennar Homes may experience some sales resistance due to the uncertainty of the use of the mitigation area, the assurances gained from the subsequent permitting process, during which the District will seek an ERP from the Florida Department of Environmental Protection for the construction of the flowway, should allay reasonable concerns about flooding and other damage to the adjacent uplands. In three respects, though, the District has abused its discretion in preparing the Flowage Easement and new special conditions. First, the District abused its discretion in requiring Lennar Homes to perform mitigation work in the mitigation area, pursuant to the original mitigation plan, to the extent that the products of such work will likely be destroyed or substantially harmed by the construction and operation of the flowway. The value of mitigation rests largely in the functions that it can support through longterm viability. The construction and operation of the surface water management system, the posting of a sufficient bond to guarantee future performance under either mitigation scenario, the execution and delivery into escrow of deeds and other legal instruments sufficient to meet the requirements of the Flowage Easement and new special conditions (subject to the two matters discussed in this and the two following paragraphs), and the construction of the portion of the original mitigation that would not be impacted by the flowway sufficiently respond to the need for mitigation, until the District finally determines the need for it to exercise its rights under the Flowage Easement. Second, the District abused its discretion by omitting any timeframe for the District to exercise its rights under the Flowage Easement and new special conditions. The timeframe proposed by Lennar Homes for the District to make this final determination of whether to proceed with the flowway is unreasonable and ignores the substantial period of time required to design, fund, and permit the flowway. But a timeframe may be especially important if Lennar Homes encounters more marketing resistance than might be reasonably anticipated. Therefore, the new conditions should provide that if construction of the flowway is not substantially completed by 2011, then the Flowage Easement shall be released and returned to Lennar Homes, upon its commencement, without delay, of the construction of any of the original mitigation that it did not already complete. Third, the District also abused its discretion in the Flowage Easement and new special conditions in the allocation of liability for the flowway, including apparently its construction, maintenance, and operation. The District would impose this liability upon Lennar Homes, which would have to indemnify the District for construction damage or any malfunctions in the operation of the flowway, such as damage to adjacent uplands by flooding, erosion, or contamination. The District has imposed this restoration project on Lennar Homes and has done so, not to avoid harm to the District's water resources, but to achieve the overall objective of the District to implement CERP. The District and its contractors, not Lennar Homes, will construct, maintain, and operate the flowway. The District, not Lennar Homes, has the expertise in the design, construction, and operation of water-control facilities of this type. This record does not disclose a single legitimate reason to impose upon Lennar Homes the liability for any aspect of the flowway that does not result from the acts or omissions of Lennar Homes or its assignees as owners of the adjacent uplands. Although, as stated in its proposed recommended order, the District does not object to the standing of Petitioners, Respondents did not stipulate to the standing of any Petitioners. Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., offered no witnesses concerning their standing, and no exhibits address the standing of these parties. The record thus fails to demonstrate that Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., are substantially affected by the proposed agency action. Petitioner National Parks Conservation Association, Inc., (National Parks) is a not-for-profit corporation registered in Florida as a foreign corporation. The corporate purpose of National Parks is to protect and enhance America's national parks, including Biscayne National Park, for present and future generations. National Parks seeks the protection and enhancement of the Biscayne National Park through the successful implementation of CERP. National Parks has 350,000 members, including 19,900 in Florida. Members of National Parks use Biscayne National Park for recreational boating, fishing, snorkeling, fish watching, scuba diving, and camping (on the barrier islands). Members of National Parks are actively monitoring the implementation of CERP. Petitioner Florida Audubon Society, Inc. (Florida Audubon), is a Florida not-for-profit corporation that was originally incorporated in Florida in 1900. The corporate purpose of Florida Audubon is to protect, conserve, and restore Florida's heritage through the preservation of the state's natural resources. Florida Audubon has adopted as its highest priority the design and implementation of CERP. Florida Audubon has 32,000 members in Florida, including over 2100 members in Dade County. Numerous of these members engage in bird watching, recreation, and scientific research in Biscayne National Park. Florida Audubon organizes membership trips to Biscayne Bay, conducts its annual Bird-athon and Christmas Bird Count in the vicinity of Biscayne Bay, and conducts various environment educational programs in and concerning Biscayne Bay. The issuance of the ERP without the Flowage Easement and new special conditions would substantially impact the ability of the District to restore this part of Biscayne Bay. Without such restoration, the functions of Biscayne Bay will slowly decline until eventually the overall health of the entire South Florida ecosystem will be substantially deteriorated. Thus, National Parks and Florida Audubon would be substantially affected by the issuance of the ERP without the Flowage Easement and new special conditions.
Recommendation It is RECOMMENDED that the District issue the environmental resource permit with the Flowage Easement and new special conditions, as modified in accordance with the matters presented in paragraphs 39-41. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 10th day of January, 2003. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Richard Grosso Louise Caro, Certified Legal Intern Environmental & Land Use Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 Marcy I. LaHart Marcy I. LaHart, P.A. 711 Talladaga Street West Palm Beach, Florida 33405 Erin L. Deady Environmental Counsel 444 Brickell Avenue, Suite 850 Miami, Florida 33131 E. Thom Rumberger Rumberger, Kirk & Caldwell, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Luna Ergas Phillips Douglas H. MacLaughlin Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Frank E. Matthews Gary V. Perko Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
Findings Of Fact SFWMD is a public corporation and local sponsor for the federally authorized Central and Southern Florida Flood Control Project. As part of its duties as local sponsor, SFWMD operates eight pumping stations and six other structures all of which discharge into Lake Okeechobee. On August 26, 1977, SFWMD filed an application with DER for an operating permit for its inflow points into Lake Okeechobee. By mutual agreement, SFWMD and DER determined that there was insufficient data available to determine whether SFWMD qualified for an operating permit, therefore, DER proposed issuing a TOP. On November 22, 1978, DER issued its notice of intent to issue a TOP to SFWMD for its inflow points into Lake Okeechobee. Among the conditions contained in the TOP is that the permit will be effective for thirty (30) months. Petitioners complain that Lake Okeechobee is being environmentally damaged by the drainage into Lake Okeechobee of waters from surrounding agriculture and dairy farming areas. This, say the Petitioners, is causing the eutrophication or damaging enrichment of the Lake by the addition of chemical elements above their natural levels in that environment. DER and SFWMD contend that at least thirty (30) months is required to complete the testing and observation of the Lake and to make long-range plans for reduction of drainage into Lake Okeechobee and to develop necessary management alternatives to accomplish that goal. The proposed TOP provides a temporal framework. Within thirty (30) days of the issuance of the permit, SFWMD is required to present to DER a program for interim actions which will reduce nutrient loading during the time of the permit. Within 120 days of the issuance of the permit, SFWMD is required to submit for approval by DER a plan of study for determining the probable impacts of management alternatives for reducing the nutrient loading into Lake Okeechobee. Within twenty-four (24) months of the issuance of the permit, SFWMD is required to submit to DER an analysis of the impacts of each reasonable management alternative which will reduce the nutrient loading into Lake Okeechobee. During two successive rainy seasons SFWMD is required to do extensive chemical testing on site. After SFWMD submits its analysis of the impacts of management alternatives, DER has six months to review the data submitted and approve a schedule for implementing a plan to reduce nutrient loadings into Lake Okeechobee. Petitioners have submitted seven (7) Proposed Findings of Fact, five of which are hereby adopted in this Recommended Order: Lake Okeechobee is in a eutrophic state and getting worse as a result of man's activities. Both state agencies charged with respon- sibility for protecting Lake Okeechobee have long recognized that the Lake is in a eutrophic state and is in need of relief. Both the DER and the SFWMD have recognized that backpumping contributes significantly to eutrophication. Since 1975, DER and SFWMD have known that backpumping is one cultural activity that should be and could be stopped or substan- tially reduced. (This proposed Finding of Fact was numbered 6 in Petitioners' pleading.) The durational provision of the TOP is linked to the addi- tional time the DER and SFWMD claim it will take to study ways to stop backpumping. Petitioners' Proposed Findings of Fact numbers 5 and 7 are hereby rejected for the following reasons. First Petitioners request a finding that "the state agencies have done nothing to reduce the amount of bad water backpumped into Lake Okeechobee." In fact DER and SFWMD have proposed the TOP with its temporal frame work and requirements of interim actions for reduction of backpumping. Petitioners also propose as a finding of fact that "the TOP's durational provision as drafted is unreasonable and arbitrary in not assuring immediate reductions in backpumping and therefore, should be redrafted to require such action." Petitioners have not supported this contention with substantial, competent evidence. In fact, the TOP provides that a plan for the reduction of nutrient loading be presented within thirty (30) days of the issuance of the TOP. Furthermore, the proposed finding of fact is outside the scope of the issues framed by the pleadings. The issue is whether the thirty (30) month durational provision of the TOP should be reduced to twelve (12) months and not whether the TOP provides for immediate reductions in backpumping. The reason for the issuance of the TOP in lieu of an operating permit is to allow SFWMD time to gather data, to assess impacts and to develop management alternatives for the control of nutrient and pollutant loadings. Although some biological and chemical data already exist, much of the information requested of SFWMD under the TOP is currently unavailable. Specifically, the TOP requires that numerical nutrient limits be established for each discharge point and that specific management alternatives be developed. Currently available data on backpumping reduction does not specifically detail how much reduction is feasible nor what alternatives are soundest environmentally. Existing reports dealing with backpumping into Lake Okeechobee are not specific enough to support presently implementable management alternatives. Petitioners introduced no evidence to establish that the budgetary or manpower constraints with which SFWMD must deal would allow a reduction of the durational provision of the TOP from thirty (30) months to twelve (12) months. SFWMD's witnesses, however, established that if SFWMD were required to complete the study within one year, it would be economically impossible unless money and personnel earmarked for other important projects were tapped. Not only would the instant studies suffer a decline in quality but other equally pressing environmental studies would be jeopardized.
The Issue Has the applicant, Grove Isle, Ltd. provided reasonable assurances and affirmatively demonstrated that its proposed marina is clearly in the public interest and will not lower the existing ambient water quality of Biscayne Bay, a designated outstanding Florida water?
Findings Of Fact On March 13, 1978 an application was made to DER for a water quality control permit to construct a wet-slip marina on the west side of Grove Isle, formerly known as Fair Isle and Sailboat Key. The original plan for the marina, which was initially objected to by the Department of Environmental Regulation, was modified to protect a bed of seagrasses extending about 30 feet wide in a band along the west side of the island. While the plans were being modified and consultations with other government permitting agencies were in progress, the application was "deactivated" from September 27, 1978 until March 30, 1979. As a result of its investigation and review, DER on October 23, 1979, issued a letter of intent to grant the permit to Grove Isle, Inc. The permit if granted, would allow the applicant to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead. The width of the piers will be 8 feet from the bulkhead to a point 41 feet offshore, and then increased to a width of 10 feet. A sewage pump-out facility is also proposed. Attached to that letter of intent were the following conditions: Adequate control shall be taken during the construction so that turbidity levels outside a 50 foot radius of the work area do not exceed 50 J.C.U's, as per Section 24-11, of the Metropolitan Dade County Code. During construction, turbidity samples shall be collected at a mid-depth twice daily at a point 50 feet up stream and at a point 50 feet down stream from the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be submitted weekly to DER and to the Metropolitan Dade County Environmental Resources Management (MDCERM) If turbidity exceeds 50 J.C.U's beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Turbidity samples shall be collected according to condition two above, no later than one hour after the installation of the turbidity curtain. It turbidity levels do not drop below 50 J.C.U's within one hour of installation of the curtain all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No live-a-board vessels (permanent or transient) shall be docked at this facility unless direct sewage pump-out connections are provided at each live-a-board slip. A permanent pump-out station shall be installed and maintained for further removal of sewage and waste from the vessels using this facility. Compliance with this requirement will entail the applicant's contacting the Plan Review Section of MDCERM for details concerning connection to an approved disposal system. Boat traffic in the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wood piles on 6 foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the effect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one background station. Parameters shall include, but not be limited to dissolved oxygen, pH, salinity, temperature, total coliform and fecal coliform and fecal streptococci bacteria, oil and grease, biochemical oxygen demand, and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a benthic community monitoring program is to be established. Samples of the benthic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified of the results. The monitoring programs shall be reviewed and approved by DER and MDCERM prior to implementation. Monitoring reports shall be submitted to DER and MDCERM and the United States Corps of Engineers on regular basis. Warning signs shall be posted in the marina area to advise marina users that manatees frequent the area and caution should be taken to avoid collisions with them. With the foregoing conditions imposed, the Department concluded that no significant immediate or long term negative biological impact is anticipated and state water quality standards should not be violated as a result of the proposed construction. Grove Isle, Inc., has agreed to comply with all the conditions established by the DER letter of intent to grant the permit. Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510 unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle, Inc., proposes constructing the marina on concrete piles driven into the Bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can however be adequately controlled by the use of turbidity curtains during construction. The construction will not require any dredging or filling. In the immediate marina site the most significant biota are a 30 foot wide bed of seagrasses. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. While lobsters may have once frequented the area, they too are no longer present. The water depth in the area ranges from 1 foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consist primarily of turtle grass (thalassia, testudinum) with some Cuban Shoal Weed (Halodule, Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioner's members. There are already for example, approximately 50 crafts which operate from the nearby mainland or from Pelican Canal directly to the north of the island. Propeller scars take up to fifteen years to heal yet the number of scars in the Grove Isle area is insignificant and even a tripling of them from an additional 90 boats would still be de minimus. Potential damage to the seagrasses on the north side of the island will be minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that pleasure boats by their very existence and operation in the water are potential pollution sources. For instance, various maintenance chemicals such as anti-fouling bottom paint and wood cleaner have the ability, if used in sufficient quantity, to harm marine life. The fueling of engines and sewage discharge from boats are additional pollution sources. There was however, no showing that the location of up to 90 pleasure and sport fishing craft at the proposed marina site would in any way cause a degradation of water quality below the acceptable standards for Class III waters. At the present time, the marina site has adequate flushing to disburse those pollutants which may be generated by the marina operations. While a hydrographic survey was not requested by DER or provided by Grove Isle at the time the permit application was made, the testimony of Dr. Echternacht at the time of the Hearing provided adequate assurances respecting the hydrographic characteristics of the proposed site. The proposed marina will have no fueling or maintenance facilities. No live-a-board craft will be allowed at the marina. Both Mr. Wm. Cleare Filer and David A. Doheny live close to Grove Isle. Mr. Doheny's residence is on the mainland facing the proposed marina site and Mr. Filer's house is on Pelican Canal. They use the waters of Biscayne Bay around Grove Isle for recreation. If the quality of the water in the proposed marina site were lessened their substantial interest would be affected. Biscayne Bay is classified as a Class III water and is in the Biscayne Bay Aquatic Preserve. Careful considerations has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order, they are rejected as being either not supported by competent evidence or as immaterial and irrelevant to the issues determined here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested water quality control permit and certification be issued subject to the conditions contained in the Notice of Intent to Issue Permit and that the Relief requested by the Petitioners be denied and their Petitions be dismissed. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Wm. Cleare Filer 3095 Northwest 7th Street Miami, Florida 33125 Joel Jaffer 2479 Southwest 13th Street Miami, Florida 33145 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Larry S. Stewart, Esquire Frates, Floyd, Pearson, Stewart, Richmond & Greer One Biscayne Tower 25th Floor Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION BAYSHORE HOMEOWNERS ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 79-2186 79-2324 STATE OF FLORIDA, 79-2354 DEPARTMENT OF ENVIRONMENTAL REGULATION, and GROVE ISLE, LIMITED, Respondent. /
The Issue The issue is whether an application by Petitioner, Hancock Bridge Marina, LLC (Petitioner or Hancock), for an Environmental Resource Permit (ERP) and sovereign submerged lands lease to expand an existing docking facility on Hancock Creek near the Caloosahatchee River in unincorporated Lee County (County), Florida, should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background Hancock is a limited liability corporation with two shareholders: Donald Epler and Stefen Heinke. After conducting a feasibility study, on April 26, 2004, Hancock purchased a 5.51-acre parcel of property in the County with the expectation of constructing and operating a 400-slip marina and a 5,000- square-foot building housing a restaurant, ship's store, and other sundry items needed for operation. (Hancock has subsequently revised its plan by reducing the number of slips requested from 400 to 352.) The cost of the property was around $2.5 million. The property is located in an unincorporated part of the County on the north side of the Caloosahatchee River (River), a Class III water, south of Hancock Bridge Parkway, east of the City of Cape Coral, and west of U.S. Highway 41 and the City of North Fort Myers. The property currently contains a 30-wet slip marina with 13 finger piers and a 4-slip T-dock. The remainder of the parcel is essentially vacant. The parcel borders a River tributary named Hancock Creek, which is a man- altered tidal creek branching off of the River in a northwestern direction, and the North Key Canal, which extends east from Hancock Creek for approximately one-half mile. Access to the River, which is no more than a hundred yards or so south of the parcel, is by traversing North Key Canal and Hancock Creek. The Department is the state agency with the authority under Part IV of Chapter 373, Florida Statutes, to issue an ERP. In addition, the Department has authority from the Board of Trustees of the Internal Improvement Trust Fund to review and take final agency action on requests to authorize activities in sovereign submerged lands. See § 253.002(1), Fla. Stat. The Commission is the agency with constitutional regulatory authority over "wild animal life and fresh water aquatic life and shall also exercise regulatory and executive powers of the state with respect to marine life." See Art. IV, § 9, Fla. Const. The Commission's authority for the regulation of manatees is derived from the Florida Manatee Sanctuary Act, which is codified in Section 379.2431, Florida Statutes. Under Sections 373.428 and 380.23, Florida Statutes, it also has authority to review ERP applications for federal consistency purposes pursuant to the federally approved Florida Coastal Management Program. On September 12, 2005, Petitioner filed an application for an ERP (a regulatory approval) and a lease to use sovereign submerged lands (a proprietary approval) with the Department's South District Office in Fort Myers, Florida. (For unknown reasons, the application was resubmitted to the Department on August 14, 2006.) The two requests are linked, and the Department cannot approve one without approving the other. See Fla. Admin. Code R. 62-343.075(2). The application seeks authority to expand in two phases the existing 30-slip facility. The first phase would generally authorize the construction of a 198-slip upland dry storage facility and reconfiguration of the existing docks. In phase 2, Hancock would add 154 dry slips and construct a 5,000-square-foot marina building. Because the docks are constructed on and over sovereign submerged lands, a proprietary authorization is necessary. Before making a decision on the application, the Department forwarded a copy to the Commission for its recommendation. After receiving the Commission's comments, which consist of 89 pages, including transmittal letters, on December 10, 2007, the Department issued its Notice of Intent to deny the ERP and proprietary authorization on the grounds the project area is sited in an area of very high level of manatee use and the project will increase local boat traffic, resulting in significant adverse effects on the manatee, which is listed by the state and federal governments as an endangered species. A more detailed description of the reasons for denial is found in the Notice of Intent. See Petitioner's Exhibit 6, pages 4 through 9; Department's Exhibit 1.b., pages 4 through 9. The Department acknowledges that its decision was based wholly upon the Commission's determination that the project, as proposed, would have an adverse impact on manatees. The DRI and Estoppel In its Petition, Hancock contends that the Department is "estopped to deny a permit for Phase 1 of the marina in light of its acquiescence to the approval of DRI 2-8990-99." By way of background, in 1990, Hancock's predecessor in interest (Waterway Group, Inc.) applied with the County for a DRI which included, among other things, 400 dry boat spaces on the property. DRI 2-8990-99 was approved by the County on July 8, 1991, and has been amended three times. See Petitioner's Exhibit 3. The original terms of approval contained several conditions that specifically addressed manatee protection. One separated the project into two phases of 200 spaces, the first of which was authorized without additional studies, while the second was subject to additional study and review by the Florida Department of Natural Resources (DNR). When the DRI was approved, the State's manatee protection program was under the jurisdiction of the DNR. That agency reviewed the DRI and recommended manatee protection conditions. The conditions in the final approval were consistent with the program's recommendation. On June 29, 2004, the County adopted a resolution approving a MPP for the County. See Petitioner's Exhibit 4. It was not adopted as an ordinance, and individual notice was not provided to interested property owners, including Hancock's principals. After adoption, the County incorporated the MPP into its Comprehensive Plan. The MPP is a planning document that provides a comprehensive review of manatee and boating data on a county-wide basis. It is developed, reviewed, and approved by local, state, and federal governments and is used for guidance when considering appropriate levels of slip densities within a county. The County is one of thirteen counties directed to adopt a MPP. On October 20, 2004, Hancock filed with the County an application to amend its DRI. The application included requests to extend the DRI approval a third time and to revise the site plan. The site plan changes included a reduction in the total number of dry spaces from 400 to 352. On June 20, 2005, the County approved the DRI amendment. The Development Order included a finding of fact that the marina was exempt from the requirements of the MPP because Section 8.4 of the MPP "exempts existing projects with valid permits and Chapter 380 vested status for the construction of slips (wet or dry) that have not been constructed at the time the MPP was adopted by the Board of County Commissioners." See Petitioner's Exhibit 3, Third Development Order Amendment for Hancock Bridge Marina, page 4, paragraph H. Hancock then filed the instant application on September 12, 2005. To date, Hancock has expended $1,731,000.00 in its permitting efforts, including the DRI extension and ERP application. There is no evidence that during the DRI process, the Department or Commission made any representations to Hancock about its ability to obtain an ERP or sovereign submerged lands authorization. Also, neither agency was consulted during that period of time, presumably because the DRI and ERP processes are separate and independent of one another. Permitting Criteria Section 373.414, Florida Statutes, contains the standards and criteria governing the approval of an ERP. Subsection (1) requires that the applicant provide reasonable assurance that the regulated activity is "not contrary to the public interest." In determining whether this test is met, paragraph (1)(a) requires that the Department consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. These same factors are found in Florida Administrative Code Rule 40E-4.302, an ERP rule adopted by the South Florida Water Management District. This rule has been adopted by reference by the Department to be used when it considers ERP applications within the geographical jurisdiction of that water management district. See Fla. Admin. Code R. 62-330.200(4). An additional requirement in the rule is that an applicant give reasonable assurance that the project will not cause unacceptable cumulative impacts. See Fla. Admin. Code R. 40E- 4.302(1)(b). Besides the foregoing requirements, additional conditions for the issuance of an ERP are found in Florida Administrative Code Rule 40E-4.301, also adopted by reference by the Department. Relevant here are requirements that the applicant give reasonable assurances that the proposed activity (a) will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and (b) will not cause adverse secondary impacts to the water resources. See Fla. Admin. Code R. 40E-4.301(1)(d) and (f). Section 373.414(1)(b), Florida Statutes, provides that if an applicant is unable to meet the above criteria, the Department shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. In this case, mitigation measures have been proposed by Hancock and are discussed below. Finally, Section 373.4132, Florida Statutes, requires that the Department evaluate applications for dry storage facilities for ten or more vessels in the same manner as any other ERP application, including that the applicant demonstrate that the facility will not be harmful to the water resources, provides reasonable assurance that the secondary impacts from the facility will not cause adverse impacts to the functions of the wetlands and surface waters, and meets the public interest test in Section 373.414(1)(a), Florida Statutes. There are no rules or statutes which require that the Department consider the status of, or otherwise take into account, a DRI in evaluating an application for an ERP or proprietary authorization. Impacts on Manatees After reviewing the application for an ERP, the Department determined that the project, as proposed, should be denied because of direct, secondary, and cumulative effects it would have on manatees. The Department further determined that the applicant had not met the applicable requirements under Florida Administrative Code Rule Chapter 18-21 for authorization to use sovereign submerged lands. In making these determinations, the Department considered not only potential deaths of manatees, but also potential impacts such as harassment, disturbance, and sub-lethal boat strikes. The latter strikes may cause permanent injury and can affect reproduction and behavior. The State is a refuge and sanctuary for the manatee. See § 379.2431(2), Fla. Stat. The manatee is a marine mammal that can live as long as sixty years. It is unable to tolerate prolonged exposure to temperatures below around sixty-one degrees, which makes it susceptible to cold-related stress and death. Consequently, the manatees typically seek warm water when temperatures drop below sixty-eight degrees, migrating seasonally over extensive geographic areas. Hancock's marina is located just off the River. The River is one of the most studied and significant habitats for manatees on the west coast of Florida. The County's water bodies, including the River, provide manatees with submerged aquatic vegetation for foraging, fresh water sources, and several warm-water sites to use as refuges during colder weather. Hancock Creek, which is used to access the River from the marina, is an area used by manatees because it provides fresh water and a quiet environment. Manatees also use the River as a major travel corridor between the Florida Power and Light Company (FPL) power plant on the Orange River, a tributary of the River located around eight miles upstream from the project site, and the estuaries found downstream where foraging resources are abundant. Hundreds of manatees go up and down the River throughout the year, and those traveling to and from the warm water around the FPL plant must travel past Hancock Creek. Manatee deaths have occurred within a five mile radius of the project site. Also, the number of manatee watercraft- related deaths in the River has steadily increased over the years. According to a 1998 study of boating activity in the County, vessels use the River more as a travel corridor to the bays and estuaries outside of the River than as a destination itself, and that on weekends there is almost constant traffic with vessels leaving or entering the mouth of the River every thirty-five seconds. The majority of the boats leaving the project site are expected to travel downstream through the mouth of the River, an area with substantial vessel congestion. This travel pattern, in conjunction with the typical travel patterns of manatees, indicates that there is a great potential for boat/manatee overlap in the River, increasing the likelihood of impacts to manatees. Besides manatee deaths, there are sub-lethal effects of increased boat traffic in the area. Increased traffic in important manatee areas may create disturbances which will alter behaviors such as feeding, suckling, or resting, or it may separate mothers from their calves. Also, vessel traffic may cause them to leave preferred habitats. Finally, as noted above, vessel collisions with manatees produce non-lethal injuries as well, causing pain and extreme scarring, which can alter natural behaviors and affect reproduction. The single biggest known cause of death to manatees is impacts from boats. The project would increase the risk of watercraft collisions with manatees in this region. As the level of boat traffic increases, the probability of boat and manatee collisions is also likely to increase. Because the project is located along the travel corridor between the largest wintering aggregation of manatees on Florida's west coast and their local foraging habitat, the expected secondary impacts from increased vessel traffic associated with the project is expected to reduce the value of the functions of the River as a travel corridor. Therefore, the secondary impacts of vessel traffic from the expansion of the marina are expected to result in adverse impacts to manatees. In 1990, the DNR reviewed the proposed DRI for this site under the state manatee program. It found that during the preceding thirteen years (1976-February 1990), thirty-six manatees had died from water-related injuries in the County. Within a five-mile radius of the site, four manatees had died from watercraft-related injuries. DNR concluded that since the manatee protection speed zones for the River had just been established, they were expected to offset the impact of the additional 198 slips. From March 1990 until September 2006, however, twenty-five additional manatees have died from watercraft-related injuries within a five-mile radius of the site. Therefore, the number of deaths had increased without the additional 198 slips. The logical inference is that if the new slips are allowed, boat traffic and the associated adverse impacts on manatees will likewise increase. The fact that dry slips will be used does not change the Department and Commission's evaluation of the project. A boat has the same risk to a manatee whether stored in a wet or dry facility. Marine industry groups suggest that an average usage rate is between ten and fifteen percent at any time, and that usage is likely to increase on the weekends. Thus, as density increases so does the risk. In addition to its own analysis, the Commission reviewed the County MPP, which indicated that nine additional slips at this location would be acceptable, for a total of thirty-nine. This number was calculated by using a slip density of three slips for every one hundred feet of shoreline owned. (The actual linear feet of shoreline owned by Hancock is unclear. The Commission concedes that Hancock "may own a total of 1,214 linear feet of shoreline.") A MPP typically allows for higher boat densities in areas that pose less risk to manatees and lower boat densities in higher risk locations. Had the MPP not been considered, the number of allowable slips would remain at thirty since the MPP provides for a countywide strategy instead of a case-by-case review. To date, the Commission has never recommended approval of a marina application in the County that would authorize more docks than the MPP would authorize. The Commission initially makes an independent assessment of the application without regard to the MPP. In this case, based upon mortality data, aerial surveys, telemetry data, rescue data, and boat studies, the Commission determined that no further slips are appropriate. Therefore, even if the County's MPP is based upon outdated data and analysis, as Hancock contends, approval of the application would not be warranted. Petitioner's expert posited that the proposed project would only result in one manatee death over the next twenty years, which would amount to no more than a de minimus impact on the overall population. Assuming this to be true, manatees are nonetheless an endangered species, and there is no minimal amount of death that is considered acceptable. The witness also opined that Hancock is entitled to an unlimited number of slips under the MPP due to flawed data and analysis underpinning that document. In formulating his recommendations, however, Hancock's expert relied on mathematical models and statistics while ignoring the principles of manatee behavior and biology. Finally, the expert agreed that the greater the number of boats in the water, the greater the likelihood that a manatee could be accidentally crushed. On the issue of impacts to manatees, the testimony of the Commission witnesses is deemed to be the most credible and persuasive. The more persuasive evidence supports a finding that the marina will be located in an area adjacent to the River, that large numbers of manatees use the River, and that the project is expected to increase boat traffic. This in turn will lead to a higher incidence of boating-related manatee casualties in the area. Therefore, the proposed activity adversely affects the conservation of wildlife and marine productivity in the vicinity of the project; it adversely affects the marine productivity in the area; it is permanent in nature; and it diminishes the current condition and relative value of functions performed by areas affected by the activity. On balance, then, the project is contrary to the public interest. Based on the evidence presented, Hancock has not provided reasonable assurance that the project will not cause adverse secondary impacts to water resources, as required by Florida Administrative Code Rule 40E-4.301(1)(f). Similarly, based on the evidence presented, Hancock has not provided reasonable assurance that the project will not result in unacceptable cumulative impacts upon wetlands and other surface waters, as required by Florida Administrative Code Rule 40E-4.302(1)(b). By failing to provide reasonable assurances that the facility will not be harmful to water resources, that the secondary impacts from the facility will not cause adverse impacts to the functions of wetlands and surface waters, and that the project meets the public interest test, Hancock has failed to satisfy the requirements of Section 373.4132, Florida Statutes. Mitigation If an applicant cannot meet the requirements of Section 373.414(1)(a), Florida Statutes, the Department "shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity." As noted in Finding of Fact 27, supra, the Department is willing to approve an additional nine slips that would be allowed under the County MPP, for a total of thirty- nine. According to Hancock, this number is not acceptable because more slips are needed to make the project financially feasible. Although a copy of the application is not a part of this record, the testimony suggests that in its application, Hancock proposed certain measures to mitigate the impacts on manatees. In a letter to the Department dated November 8, 2007, however, the Commission stated that "[i]f the Applicant propose[s] changes to the project to minimize fish and wildlife resource impacts that are consistent with the Lee County MPP, such a project would be consistent with Chapter 370.12(2), F.S." (The Legislature has subsequently consolidated this statute into Section 379.2431, Florida Statutes.) Despite this lack of clarity in the record, sometime during the application process, and presumably before the Notice of Intent was issued, the Commission staff discussed with Hancock whether the following mitigation measures would offset or adequately reduce the impacts: placing a size restriction on boats docking at its facility; providing boater education; installing speed zone marking and making it a requirement for all boats at the marina to be equipped with a speed zone map or a Global Positioning Satellite unit with speed zone mapping; implementing a volunteer watch program to enforce speed limits; making a cash donation to study manatee population dynamics; and installing sonar avoidance technology on vessels. The Commission established that these measures, even if implemented, would not offset the impacts from 198 slips expected with phase 1 of the project. For example, the research associated with sonar technology is not yet completed, and devices are not available for boaters. Also, given the location of the project, even with additional law enforcement and boater education, the impacts would not be offset due to the level of traffic already existing on the River at that site, and the importance of the area to manatees. The middle of the River is a high-speed corridor (with a twenty-five miles per hour speed limit) and even with one hundred percent compliance in that zone, a small boat can still hit and kill a manatee. The Proprietary Authorization Because denial of the ERP is being recommended, the proprietary authorization must likewise be denied. See Fla. Admin. Code R. 62-373.075(2). Even so, for the purpose of addressing all issues in this Recommended Order, a discussion of the application for proprietary authorization is set forth below. Florida Administrative Code Rule Chapter 18-21 contains the rules that implement the administrative and management responsibilities of the Department in authorizing activities in sovereignty submerged lands. Florida Administrative Code Rule 18-21.004 establishes the specific standards and criteria to be applied by the Department in determining whether Hancock should be allowed to use sovereign submerged lands. Paragraph (1)(a) provides that "[f]or approval, all activities on sovereignty lands must be not contrary to the public interest." The public interest is defined as "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." See Fla. Admin. Code R. 18-21.003(43). The more persuasive evidence supports a finding that, on balance, the project is contrary to the public interest based upon the standards in the rules. Florida Administrative Code Rule 18-21.004(2)(a) provides that "[a]ll sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed." The evidence does not show that Hancock's proposed marina expansion constitutes a secondary use not interfering with the propagation of wildlife. Therefore, the project is not consistent with this rule. Florida Administrative Code Rule 18-21.004(2)(b) provides that "unless there is no reasonable alternative and adequate mitigation is proposed," activities which result in significant adverse impacts to sovereignty lands and associated resources shall not be approved. As previously found, the mitigation measures proposed by Hancock are not adequate. Paragraph (2)(i) of the rule further provides that activities in submerged lands "shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat." Because Hancock failed to prove that the project would not result in unmitigated adverse impacts to manatees, it fails to meet this criterion. Paragraphs (7)(d) and (e) of the rule are general conditions for authorization and provide that activities "shall be constructed and used to avoid or minimize adverse impacts to sovereignty submerged lands and resources" and "shall not adversely affect any species which is endangered, threatened, or of special concern." Here the more persuasive evidence shows that neither condition has been met.
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 denying Petitioner's application for an ERP and authorization to use sovereign submerged lands to expand an existing marina on Hancock Creek in Lee County, Florida. DONE AND ENTERED this 15th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2009.
Findings Of Fact Petitioners in this proceeding challenge the validity of one of the Department of Environmental Regulation's ("DER") Class III water quality standards contained in Rule 17-3.121(7), Florida Administrative Code. This rule, commonly known as the "Biological Integrity Rule," reads as follows: Biological Integrity--the Shannon- Weaver Diversity Index of benthic macroinvertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and, in predominantly fresh waters, collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15 meters squared area each, incubated for a period of four weeks; and, in predominantly marine waters, collected and composited from a minimal of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 225 square centimeters. Petitioners challenge this rule as a result of DER's intended denial of an application by Dade County for a permit to renourish the beach at Key Biscayne. DER's decision not to issue the beach renourishment permit was based in part upon its conclusion that there existed an expected violation of the Biological Integrity Rule as a result of the proposed beach renourishment. Whether or not the permit should be granted is an issue currently pending in another DOAH proceeding, Dade County Department of Environmental Resources Management, et al. v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-2201. Petitioners contend that Rule 17-3.121(7), Florida Administrative Code, is an invalid exercise of delegated legislative authority because: It fails to accomplish the purpose of the enabling legislation in that it contains no information as to where it is to be applied; It is incapable of consistent and objective application, and thus vests unbridled discretion in the DER staff; It is too vague and indefinite to determine whether it conforms to the statutory limitation on DER's authority; and It purports to but does not measure environmental integrity or environmental quality. The project for which Petitioners have applied for a permit requires the placement of fill on the beach at Key Biscayne in an area which extends landward from a point referred to as the 'design toe of fill." The permit application on file requests permission from DER to place fill material up to the design toe of fill. According to the permit application, it will take approximately two years after the initial placement of sand in the project area for that sand to reach the design toe of fill. There is no information contained in the original permit application regarding the location of the fill as it is initially placed within the project area, nor did DER request any additional information on that subject. The parties have stipulated that 45 acres of sea grass will ultimately be covered by fill. This area represents all the sea grass acreage landward of the design toe of fill, not just the acreage of sea grass which will be covered during the initial placement of fill within the project area. DER has no written policy establishing where the Biological Integrity Rule is to be applied. The record in this proceeding contains differing opinions from members of the DER staff concerning where the rule should be applied in order to determine whether a given project complies with the requirements of the rule. These explanations vary from applying the requirements of the rule within the area to be dredged or filled, to applying the rule outside the fill area, to applying the rule immediately adjacent to the fill area, to determining where the rule should be applied on a case-by-case basis. There is nothing in the record in this proceeding in the form of agency "orders" or any other form of agency "action" to indicate any prior DER interpretation of where the parameters of the Biological Integrity Rule are to be applied and measured. The rule uses the Shannon-Weaver Diversity Index of benthic macroinvertebrates as a measure in order to regulate the biological quality of a water body. The regulatory aspect of the rule depends upon some change in the existing biological community. If the index is reduced by more than 25 percent, a violation of the rule has occurred. The index is a function of two factors: the number of species of organisms in a given sample, and the number of individuals of each species in a sample. The higher the number of species in a given sample, and the more even the number of individuals of each species, the higher the index will be. The opposite is also true. If the number of species or the evenness of numbers of individuals among species is reduced, then the index decreases. The two factors are combined to arrive at the index. Naturally, these are only two of a vast number of factors actually present in the environment, but when taken together they give an accurate indication of existing water quality. Although this index does not reveal a number or these factors, such as existing biomass, types of species present in a sample, and the quality of those species, it is the most widely used scientifically valid single measure of environmental quality available. DER has had many years of experience with this index, and uses it in its routine monitoring program. In fact, this index is recommended for use in such programs by the Federal Environmental Protection Agency. The formula for the Shannon-Weaver index is found in Rule 17-3.021(23), Florida Administrative Code. Although the rule containing the formula for the index was not specifically challenged in the Petition filed in this cause, it bears mentioning here because the formula as published in the Florida Administrative Code, contains so many typographical errors as to make the definition of the formula meaningless. However, the record in this proceeding establishes that the Shannon-Weaver Diversity Index is so commonly known, accepted and utilized in the scientific community as to make the proper parameters for its application easily ascertainable. Thus, because the definition of the formula was not specifically challenged in this petition, and additionally because the proper definition of the index is so widely known and easily ascertainable, inaccuracies contained in DER's published definition of the index are harmless insofar as this proceeding is concerned.
