The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue is whether to approve an application by Respondent, I.M. Collier, J.V. (Collier), to modify its Environmental Resource Permit (ERP) No. 11-02031P (2002 Permit) by changing the surface water management system (SWMS) for a proposed residential and golf course development in Collier County (County), Florida, known as Mirasol.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties National Audubon Society, Inc. is a not-for-profit corporation (incorporated outside the State of Florida) while Collier County Audubon Society, Inc., Florida Wildlife Federation, and Conservancy of Southwest Florida are Florida not-for-profit corporations. All are environmental organizations. Franklin Adams is a resident of the County and a member of each of the above organizations. Respondents have not contested Petitioners' standing based upon the stipulated facts set forth in the parties' Pre-Hearing Stipulation. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. Collier is the holder of the 2002 Permit authorizing the construction of a SWMS to serve the Mirasol project, a large development located in the County. The parties have stipulated that Collier has the administrative, legal, and financial capabilities to undertake the proposed activity. Fla. Admin. Code R. 40E-4.301(1)(j). The Project Site The Mirasol project consists of approximately 1,713.45 acres located on the north side of Immokalee Road and the Cocohatchee Canal (Canal) in the northern half of the County, approximately three miles east of the intersection with Interstate 75. The property spans three sections of land, the northern third of the property encompassing Section 10, the middle third encompassing Section 15, and the southern third encompassing most of Section 22. The site also includes a peninsula of land extending east of Section 10, encompassing the northernmost quarter of Section 11. The site is bounded on the south by the Canal and Immokalee Road and on the east by an existing residential development known as Heritage Bay, which was previously a rock- mining quarry. To the west of the site, running north to south, are two other proposed residential developments known as Parklands Collier and Terafina/Saturnia Falls and an existing residential and golf course community known as Olde Cypress. There are other existing and proposed residential developments and farm fields to the north of the site. The site is located southwest of the Corkscrew Swamp Sanctuary (Corkscrew Swamp), which is owned by the National Audubon Society, Inc., and appears to stretch from Immokalee (in the northeastern part of the County) south and southwestward through parts of the County. Corkscrew Swamp sits roughly at the center of a 315-mile watershed, much of which is comprised of short hydroperiod wetlands which dry down completely during the late winter and spring and become inundated again in the late summer and fall during the wet season. This water gradually sheet flows down a very slight downhill gradient toward the south and west. A portion of the sheet flow travels southwest in the vicinity of the site. The region has experienced occasional floods, the most severe of which occurred in 1995. At the direction of the District, the cause of the flooding was investigated in the South Lee County Watershed Study (Study), which concluded that the watershed discharges through a variety of outfalls, but that historic connections to downstream conveyances like the Canal were severed by the construction. While downstream conveyances exist, the Study concluded that connections between upstream flows and downstream conveyances should be enhanced or restored. In the late 1990s, the Canal was improved to increase its conveyance capacity. A berm was constructed by the Big Cypress Basin Board (Basin Board), a legislatively-created entity which manages water resources in the County, on the northern bank in the vicinity of, and across from, the Mirasol site. This berm prevented historic wet season sheet flow from reaching the Canal through the project site, except for a few culverts located along that water body. The Basin Board also built a 1,000-foot-long hardened concrete weir on the north side of the Canal a few thousand yards west of the project site. This weir provides the primary outlet for sheet flow in and around the Mirasol site. Currently, upstream drainage flows in a southwesterly direction across Section 10. As the water moves south to the Canal, the flow becomes constricted down to a 580-foot wide gap between the Olde Cypress residential development and commercial developments along Immokalee Road to the east. This constricted area further narrows to a 270-foot wide opening before the sheet flow reaches the 1,000-foot weir and discharges into the Canal. During a 3-day, 25-year storm event, a combined peak flow of 553 cubic feet per second (cfs) of water is discharged into the Canal through the 1,000-foot weir, but the Mirasol property only conveys a small portion of this water (around 20 cfs) through culverts in the Canal berm. Most of the water flows to the west of Mirasol where it passes through the narrow gap and over the 1,000-foot weir. Around 1,431 acres of the 1,714-acre site are jurisdictional wetlands. However, these wetlands are in poor condition due to existing impediments to sheet flow, artificially high water levels during the wet season, and heavy infestation of exotic species, principally melaleuca. Permit History In February 2002, the District issued the 2002 Permit approving the construction of a SWMS to serve two 18-hole golf courses, a single-family residential community, a golf course clubhouse and parking area, golf course maintenance facilities, sales facility, and parking area. The issuance of the 2002 Permit was not challenged. The SWMS included a 36.5-acre flow-way (Flow-Way) that encircled the northern boundary of the development in Section 15 and extended off-site and across adjacent properties to the west. (If constructed, the Flow-Way would be a 200-foot wide, 4-foot deep, 89-acre channel, more than half of which would have been located on the Saturnia Falls/Terafina and Olde Cypress properties.) Besides providing a conveyance function for the Mirasol site, the Flow-Way also enhanced flood protection for other properties by accelerating conveyance of floodwaters to the Canal and reducing peak flood stages by 0.4 feet during a three-day, 25-year storm event. The District included Special Condition 26 in the 2002 Permit, which required construction of the Flow-Way before the remainder of the project could be constructed. The 2002 Permit authorized Collier to directly impact (fill or excavate) 568.66 acres of wetlands within the footprint of the development. Additionally, 39.5 acres of wetlands, which were isolated remnant strips along the golf courses within the development, were considered secondarily impacted and assessed a thirty-three percent reduction in functional value. Mitigation for the project consisted of preservation and enhancement of wetlands and uplands on site. Enhancement of the preserve areas was primarily credited to the eradication of malaleuca and other exotic species and replanting with appropriate native vegetation. Permit conditions required management of the preserve areas to prevent a recurrence of exotic species. The preserve areas included an 846.95-acre external preserve area to the north and northeast of the area to be developed. It was anticipated that this northern preserve area would ultimately be donated to an existing mitigation area known as the Corkscrew Regional Ecosystem Watershed, along with an interest-bearing fund to ensure perpetual management. In December 2005, the United States Army Corps of Engineers (Corps) denied Collier's federal wetlands permit application for the project and the Flow-Way. Because of this denial, in May 2006 Collier submitted an ERP application with the District seeking to modify the 2002 Permit by revising the SWMS and removing the Flow-Way. On October 12, 2006, the District Governing Board approved a modification to the 2002 Permit, which authorized an alternate SWMS to serve the golf course and residential development (2006 Permit). Petitioners' challenge to the proposed modification followed. The 2006 Modification Because of the Corps' denial of its application, Collier was required to remove the Flow-Way and redesign the project's SWMS. The most substantial change in the project was the removal of the Flow-Way and associated control structures and its replacement with a series of interconnected lakes running from north to south through the property allowing for the pass-through of surface waters from the area north of the development site into the Canal. The modification does not alter the boundaries and location of the development. However, the revised SWMS includes: five controlled basins with a total area of 718.43 acres, each of which provides treatment of stormwater prior to discharging into the pass-through system; 45.16 acres of interconnected lakes serving as a pass-through for surface waters from the north; 2.12 acres of perimeter berm backslope/ buffers/spreader swales; and 7.27 acres along the Canal for the existing 100-foot wide canal easement and proposed canal contouring. These changes also required elimination of the 39.5 acres of remnant wetlands inside the development that had previously been assessed as secondarily impacted. Also, there were 0.68 acres of additional impacts resulting from slight changes in the internal site design due to the SWMS. To partially offset these impacts, the internal wetland preserves were enlarged by 13.32 acres. The remaining impacts were mitigated with mitigation credits from the Panther Island Mitigation Bank (PIMB). (The PIMB holds a mitigation bank permit issued by the District for a wetland restoration project in Southwest Florida.) The main preserve was left unchanged, except that 36.5 acres previously dedicated to construction of the Flow-Way will be added to the main preserve and similarly enhanced and preserved. In summary, as modified under the 2006 Permit, the total onsite mitigation consists of the preservation and enhancement of 830.89 acres of wetlands, preservation of 109.58 acres of uplands, and the purchase of a total of 5.68 credits from the PIMB. At hearing, Collier also agreed to purchase from the PIMB an additional 5.68 credits within the Basin for a total of 11.36 credits. The ERP Permitting Criteria To obtain an ERP, an applicant must satisfy the conditions in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality, while the second rule generally requires that a public interest balancing test be made, that cumulative impacts, if any, be considered, and that the District consider past violations, if any, by the applicant of District or Department of Environmental Protection (DEP) rules. (The parties have cited no prior violations by the applicant that should be considered.) Besides these two rules, a number of BOR provisions which implement the rule criteria must also be taken into account. If an applicant proposes to modify an existing ERP, as it does here, Florida Administrative Code Rule 40E-4.331(2)(a) comes into play and requires that the District review the application to modify the ERP "using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification." Under this rule, those portions of the project altered or affected by the modification are reviewed under the current ERP criteria, but otherwise the 2002 Permit is not the subject of review in this case. Therefore, the District's review includes only that portion of the existing permit that is proposed to be modified or affected by the modification. In this case, the 2006 design is very similar to the 2002 design, and the project's footprint, control elevations, roadway network, southern outfall, and main preserve are unchanged. However, as pointed out below, since most of the engineering-related components of the SWMS were affected by the Flow-Way's removal, the District reassessed the hydrologic components of the internal water management system and the pass- through lake system for levels of flood protection and water quality treatment. Because most of the engineering-related components of the SWMS for the project were modified as a result of the removal of the Flow-Way, the District staff reassessed the project's hydrologic calculations associated with levels of flood protection and reassessed the project's water quality treatment volumes applying the currently existing ERP criteria. As to wetland impacts and mitigation, review of the wetland impacts for the 2006 Permit was limited to an analysis of additional wetlands impacts associated with the modification. This was primarily the elimination of the previously permitted, secondarily impacted wetlands. Thus, only the additional wetlands impacts due to the revised SWMS are considered under the currently existing ERP criteria. The 2006 Permit made only slight changes to the project's wetland impacts and mitigation components authorized under the 2002 Permit. The project's footprint was not changed and the main mitigation area (the Northern Preserve) was unaffected by the changes except that 36.50 acres were actually added to that preserve as a result of the removal of the Flow- Way. Collier did not receive any credit in its mitigation analysis for the additional acreage that will become part of the preserve due to the removal of the Flow-Way. Surface Water Management Criteria As noted above, the ERP criteria in Florida Administrative Code Rule 40E-4.301 focus primarily on three areas of concern: water quantity, environmental impacts, and water quality. Related BOR provisions must also be considered. These areas of concern are discussed below. Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that an applicant provide reasonable assurance that the construction of a SWMS "[w]ill not cause adverse water quantity impacts to receiving waters and adjacent lands." BOR Section 6.2 implements that provision and requires that a project be designed so that it is consistent with the downstream carrying capacity of the receiving waters. In other words, it must not exceed the capacity of downstream receiving waters, which in this case is the Canal. In making this determination, Section 6.3 of the BOR requires that the 25-year, 3-day design storm event be used. Collier complied with this requirement through an extensive hydrologic study conducted by its expert, Richard S. Tomasello, a former District employee. Applying a hydrologic model simulation known as S2DMM, the witness determined the appropriate amount of upstream sheet flow that would need to be routed through the project to avoid adverse water quantity and flooding impacts and calculated the correct dimensions of the intake weir to admit that flow into the project's pass-through system. The S2DMM model is a combination of other accepted models including the Sheet 2d, Massmod, and MBR models, which were developed by Mr. Tomasello, and they have been evaluated and used by the District on numerous occasions. In addition, the S2DMM model has been used for other flood studies in Collier and Lee Counties, and it will be used on a restoration project in Martin County. Based upon Mr. Tomasello's analysis, Collier incorporated a 100-foot-long intake weir with a crest elevation of 14.95 NGVD (National Geodetic Vertical Datum) along the northern boundary of the project to maintain existing upstream water elevations. Collier also complied with BOR Section 6.3, which requires the use of a 25-year, 3-day storm event to be used when computing the discharge rate for the project. The modified intake weir on the northern boundary includes two 3.5-foot wide rectangular notches set at an elevation of 14.00 NGVD, which will provide a "base flow" of up to 20 cfs into the pass-through lakes to mimic the current flow through the property. The determination of this base flow was made through an analysis of the existing culverts at the southern end of the property. While not required by the ERP criteria, Collier also performed a long-term analysis (using a four-year period of record) of the SWMS's effect upon water levels. This analysis demonstrated that the modified system would leave water levels in the wetland areas upstream of the project unchanged during normal rainfall and low-flow periods. This analysis provides additional assurances that the modifications to the SWMS will not affect the Northern Preserve. While Petitioners questioned the accuracy and reliability of the hydrologic study, and its specific application to this project, the criticisms are considered to be vague and unsubstantiated. As noted above, the model has been previously accepted for use in South Florida, and Petitioners' expert conceded he did not have enough information to determine the model's accuracy. The more persuasive evidence established that the hydrologic study submitted by Collier included the relevant available data and was prepared by competent professionals knowledgeable in the field. The claim of Petitioners' experts that they lacked sufficient information to form an opinion on the accuracy of the modeling is not a sufficient basis to overcome the evidence submitted by Collier to meet this criterion. The project's discharge rate in 2006 will not exceed what was permitted in the 2002 Permit. During the 25-year, 3-day storm event, the existing discharge from the project site and the natural area west of the project site into the Canal is 553 cfs. Based on modeling of the modified SWMS, the total discharge from the pass-through system will be 529 cfs, or 24 cfs less than the project's existing pre-development discharge. The discharges resulting from the project as modified in 2006 will not exceed the capacity of the Canal as required by Section 6.3 of the BOR. Accordingly, Collier has provided reasonable assurance that the discharge rate allowed for its project would not be exceeded, as required in Section 6.2 of the BOR. Section 6.8 of the BOR requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving water bodies are not being adversely affected. Collier complied with this provision by conducting the hydrologic analysis using the 25-year, 3-day design storm event, which demonstrated that the discharge rate would be directed to the southern discharge point allowing for the passage of drainage from offsite areas to the downstream areas. The evidence also shows that the current predominant sheetflow from areas outside the project passes through a narrowly constricted area west of the project and discharges into the Canal over an existing concrete weir. See Finding of Fact 9, supra. Only a small portion of the upstream waters currently discharge through the Mirasol site. Petitioners' allegation that the construction of the project will further constrict the sheetflow area is rejected, as the constriction of sheetflow will continue to exist whether the project is built or not. The evidence also shows that the project will not further constrict the flow because it will allow for the pass-through of water from outside the project area. Under the 2002 Permit, the Flow-Way was designed to aid in the diversion of upstream flows around the project. Under the 2006 modifications, the pass-through lake system will convey up to forty percent of the upstream flow through the development which complies with the provisions of Section 6.8 of the BOR. As indicated above, during periods of lower water levels, the notches in the weir along the northern boundary will allow for the flow to pass onto the project site consistent with existing conditions. During major storm events, water will pass over the weir into the pass-through lake system to be conveyed to the Canal. Therefore, Collier has provided reasonable assurance that the criteria in Section 6.8 have been met. Section 6.10 of the BOR requires that the project be designed to conserve water and site environmental values and not lower the water table or groundwater or over-drain wetlands. Section 6.11 of the BOR provides that the control and detention elevations for the project must be established at elevations to accomplish the objectives of Section 6.10. The latter section is adhered to when the control elevations proposed for a project are established consistent with the onsite wetland conditions. In this case, the control elevations for the wetlands and surface water management lakes are essentially the same as the design in the 2002 Permit. Collier has set the control elevations above the average wet season water table (WSWT) for the area, thereby ensuring that the SWMS will not over-drain and will conserve fresh water. Section 6.11 of the BOR addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. The SWMS design control elevation maintains the detention component and the control (wetland protection) elevations in the previously approved SWMS. The control elevations were set by the design engineers in consultation with Collier's wetland ecologist taking into account the ground elevations and biological indicators. The control elevation for the pass-through system and internal drainage basins work in conjunction with the control elevation along the northern boundary of the project and the control elevation for the discharge point along the southern boundary to ensure that the project does not overdrain the wetlands and to preserve the project site's environmental values. By setting the control elevation above the WSWT, the design ensures that the wetlands will not be drawn down below the average WSWT and the SWMS will not over-drain them. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, based on the control elevations, the water table is not expected to be lowered so there should be no effect on the existing rights of others. Collier must further demonstrate that the site's groundwater recharge characteristics will be preserved through the design of the SWMS. Collier complied with this requirement by setting the control elevations above the average WSWT, allowing standing water in the wetland preserves to recharge the groundwater. The ability of the SWMS to accept flows from the Northern Preserve conserves freshwater by preventing that water from being discharged downstream. The SWMS leaves water elevations in the Northern Preserve unchanged. Consequently, water will remain in the wetlands for the same duration and elevations as in the existing conditions, thereby preserving groundwater recharge characteristics. Section 6.12 of the BOR prohibits lake designs that create an adverse gradient between the control elevations of the lakes and the adjacent wetlands. To satisfy this requirement, Collier set all control elevations at 13.4 - 13.5 NGVD while controlling the internal wetland preserves at a slightly higher elevation. Consequently, there is no adverse gradient and no potential for an adverse effect upon the internal preserves from adjacent lakes. Petitioners argued that the pass-through system would quickly lower water levels in the internal wetland preserves. However, the internal wetlands are still protected from drawdown because there are control structures set at or above the wet season elevation between the pass-through lakes and internal wetlands. They also argued that the internal wetlands would be overdrained during the dry season by the deep lakes. However, no witness presented any real analysis to back up this contention. Indeed, the pass-through lakes are only twelve feet deep, and the wetlands are separated from all the lakes by protective berms to avoid any drawdown. In summary, Collier has provided reasonable assurances that the proposed modification in the 2006 Permit will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not exceed the capacity of the downstream receiving waters (the Canal). Flooding Florida Administrative Code Rule 40E-4.301(1)(b) requires Collier to demonstrate that the project "[w]ill not cause adverse flooding to on-site or off-site property." BOR Section 6.4 sets forth criteria and standards for implementing this requirement and provides that building floors be designed to be protected from a 100-year, 3-day storm event. BOR Section 6.5 provides criteria and standards for flood protection for the project's roads and parking lots. Collier complied with these provisions by providing construction plans demonstrating that the building floors and roads will be built higher than the 100-year, 3-day storm event. BOR Section 6.6 provides that a project may not result in any net encroachment into the 100-year floodplain. Collier was also required to comply with the historic basin provision in Section 6.7 of the BOR, which requires the project to replace or otherwise mitigate the loss of historic basin storage provided by the site. The level of encroachment into the 100-year flood plain and loss of historic basin storage attributed to the project are essentially unchanged from the 2002 design. The only difference between the 2002 Permit and the 2006 Permit is how the conveyance of flood water is provided. In 2002, the Flow-Way served this function, while the pass-through system provides it in the 2006 Permit. Collier's flood simulations demonstrated that the project will not alter flood stages during the 25-year and 100- year design storms, while the testimony of witnesses Tomasello and Waterhouse established that the project will not have adverse flooding impacts on adjacent properties, either alone or in conjunction with neighboring developments. Storage and Conveyance Florida Administrative Code Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development "[w]ill not cause adverse impacts to existing surface water storage and conveyance capabilities." This criterion is closely related to paragraph (1)(b) of the same rule, which prohibits adverse flooding to onsite or offsite property. Section 6.6 of the BOR implements this provision and specifies the parameters for applying this criterion and prohibits a net encroachment between the WSWT and the 100-year event which will adversely affect the existing rights of others. Collier addressed this criterion through the hydrologic analysis submitted. As previously found, that model is the appropriate model to determine flood stages and to calculate the floodplain. Engineering Design Principles Florida Administrative Code Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS "[w]ill be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Section 7.0 of the BOR contains the specific standards and criteria to implement this rule. The evidence demonstrates that the SWMS is based on generally accepted engineering and scientific principles and is capable of performing and functioning as proposed. Section 8.0 of the BOR includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the design, Collier complied with Section 8.0. Water Quality Impacts Florida Administrative Code Rule 40E-4.301(1)(e) requires that the proposed modification "[w]ill not adversely affect the quality of the receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated." Stated more plainly, the proposed modifications must not adversely affect the quality of the Canal's waters such that State water quality standards will be violated. Section 5.2 of the BOR describes the District's standard water quality criteria. This provision, which requires a minimum of one-inch detention of stormwater, is referred to as a "presumptive criteria" because it is presumed that if an applicant provides the required one inch of detention, it meets Class III water quality standards, thereby satisfying the rule. As it did under the 2002 Permit, Collier satisfies the presumptive criteria with the 2006 design by providing the one- inch wet detention in its lake system. In fact, the system is designed to provide one and a half inches of treatment in the lake system thereby providing additional treatment. The receiving body of water for the project is the Canal. When the 2002 Permit was issued, the Canal was classified as a Class III water body. It is now classified by DEP as impaired for iron and dissolved oxygen. Because of this new classification, Collier must now comply with Section 4.2.4.5 of the BOR, which reads as follows: If the site of the proposed activity currently does not meet water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. Collier demonstrated that neither short-term (during construction) nor long-term (during operation) water quality impacts will occur. It complied with the short-term requirements by submitting a Construction Pollution Prevention Plan detailing how water quality will be protected during the construction process. As to long-term impacts, the Terrie Bates Water Quality Memorandum (Bates Memo) prepared by District staff on June 11, 2004, provides guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired water body. The document sets forth a number of design and operational criteria for the types of additional measures that can be incorporated into a project design to provide the necessary reasonable assurance. The Bates Memo suggests that an additional fifty percent of treatment be incorporated into a SWMS. Collier complied with this suggestion by designing the treatment lakes to provide an additional one-half inch of treatment for the additional fifty percent treatment. In addition to the one and one-half inch treatment, Collier is implementing six of the seven items the Bates Memo lists as potential options to consider. The long-term water quality requirement is addressed by Collier, in part, through an Urban Stormwater Management Plan, which details various source controls or best management practices to be implemented once the project is built and operating. Best management practices assist in ensuring that pollutants will not enter into the lake system. Collier is also implementing a stormwater pollution prevention plan and will utilize the lake system for additional treatment downstream. Collier has further agreed to planting the littoral zones as part of its design of the treatment lakes to provide additional pollutant removal. The design calls for an amount of littoral zones equal to twenty percent of the surface area of the treatment lakes. Collier has agreed to make a Water Quality Monitoring Plan a permit condition, even though such a condition was not included in the staff report. See Collier Exhibit 25. The Bates Memo includes as an option for meeting the long-term requirement a site-specific water quality evaluation of pre vs. post-development pollutant loadings. Collier has presented several such analyses, all of which indicate the post- development pollutant discharges from the site will be less than the pre-development. Mr. Barber prepared a pre vs. post- analysis using a 2003 methodology developed by Dr. Harper. The 2003 version of the Harper methodology is currently accepted by the Corps. (Although Petitioners' witness, a former Corps employee, suggested that the Corps' acceptance of the study was a "political" rather than a scientific decision, there is insufficient evidence to support this contention.) Besides his first analysis, at the direction of the District staff, Mr. Barber prepared a second analysis using the 2003 methodology with certain conservative assumptions that limited the pollutant residents time to fifty days and utilized lower starting concentrations for phosphorous and nitrogen than were recorded in the nearby monitoring stations. Based upon those reports, the District's staff concluded that Collier had provided reasonable assurances that the project met the criteria in BOR Sections 5.2 and 4.2.4.5. At the hearing, Mr. Barber presented a third analysis utilizing an updated methodology developed by Dr. Harper in February 2006. The 2006 methodology was developed after Dr. Harper conducted a study of water management district criteria throughout the state for DEP. All three of the analyses prepared by Mr. Barber concluded that the project would discharge less nitrogen and phosphorous into the receiving body in the post-development condition than is currently being discharged in the pre-development condition. In addition to the three water quality submittals from Mr. Barber, Collier provided an additional water quality analysis specific to the project prepared by Dr. Harper. See Collier Exhibit 26, which is commonly referred to as the Harper Report. The analysis evaluated the project's pre vs. post- development water quality loads and also concluded the project would not contribute to the impairment of the Canal. In preparing his analysis, Dr. Harper relied solely on the lakes for estimating removal of pollutants without accounting for any of the additional treatment expected to occur from the source control best management practices contained in the Urban Stormwater Management Plan, which means his report errs on the conservative side. The Harper Report concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/L. Petitioners presented no specific evidence to counter these conclusions. Petitioners questioned the Harper Report's use of wetlands as part of the loading calculations and attacked his underlying methodology. However, the evidence is clear that wetlands contribute to the water quality constituents in the pre-development condition. This finding is based on data from monitoring stations located in the middle of Corkscrew Swamp, a statewide study on stormwater treatment and wetlands, and the United States Environmental Protection Agency's (EPA) assignment of nutrient loading rates to wetlands in its regional pollutant loading model. Ignoring the actual water quality in pre-development conditions would not be a true pre vs. post-development analysis. Finally, Petitioners' contention that the Harper methodology should not be considered as admissible evidence because it constitutes "novel" (and therefore unreliable) scientific evidence under the rationale of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), has been rejected. To begin with, the Frye test has not been accepted in Florida administrative proceedings. Moreover, the methodology is the basis for a new statewide rulemaking effort, has been accepted by the EPA, the Corps, and by the Division of Administrative Hearings in at least two proceedings, and has been subjected to two peer reviews. Petitioners also alleged that Collier failed to show that it complied with Florida Administrative Code Rule 62- 40.432(2)(a)1., a rule administered by DEP which requires that a new SWMS "[a]chieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards." However, this is a broad overstatement of DEP's rule. Also, there is no eighty percent removal efficiency requirement adopted or incorporated into any District rule or BOR criteria. See, e.g., Conservancy of Southwest Florida, Inc. v. G.L. Homes of Naples Associates II, LTD et al., DOAH Case No. 06-4922 (DOAH May 15, 2007, SFWMD July 11, 2007). Instead, the District's "presumptive criteria" is that one inch of volumetric treatment required in Section 5.2 of the BOR meets the Class III standards. If, as in this case, additional assurances are required, those assurances are met through implementation of the BOR Section 4.2.4.5. Finally, Florida Administrative Code Rule 62-40.110(2) provides that Rule Chapter 62-40 is "intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Also, Florida Administrative Code Rule 62- 40.110(4) states that "[t]his chapter, in and of itself, shall not constitute standards or criteria for decisions on individual permits. This chapter also does not constitute legislative authority to the Districts for the adoption of rules if such rules are not otherwise authorized by statute." Even if an eighty percent reduction standard applied, Collier has demonstrated that the project very likely will remove eighty percent or more of pollutants when additional low-impact development techniques, pollutant source reduction practices, and additional uncredited wet and dry detention capacity are considered. Based upon the evidence presented, Section 4.2.8 of the BOR regarding cumulative impacts for water quality is not applicable in this case. Collier's submittals provide reasonable assurances that the project will not be contributing to the water quality impairment of the Canal or contribute to any other water quality violation. Indeed, the information submitted indicates there will be an incremental improvement in the post-development condition as compared to existing. Since no contribution or impacts to water quality are expected, a cumulative impact analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, demonstrates that the 2006 Permit will not adversely affect the quality of receiving waters such that state water quality standards will be violated. Therefore, reasonable assurance has been given that Florida Administrative Code Rule 40E-4.301(1)(e) will be satisfied. Wetland Impacts Florida Administrative Code Rule 40E-4.301(1)(d) requires Collier to provide reasonable assurance that the modification of the SWMS "[w]ill not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." In determining whether this criterion has been satisfied, it is also necessary to determine whether any 2002 permitted impacts should be subject to a second review in this case. Mitigation is a method by which an applicant can propose to impact certain wetlands on the project site in exchange for providing compensation in the form of preserving, enhancing, restoring, or creating wetlands or uplands to offset those impacts. As noted earlier, there has been no change to the wetland impacts or mitigation proposal as it relates to the Northern Preserve. See Findings of Fact 27 and 28, supra. As a result of the modified SWMS, there has been some additional impact to wetlands within the development area of the project. An additional 40.18 acres will be impacted under the 2006 Permit mostly due to the modified SWMS system. However, 39.5 acres of those wetlands were already considered secondarily impacted under the 2002 Permit. In addition, the preserve areas were expanded by 13.32 acres in the 2006 design. Thus, a portion of the impacts to those wetlands was already factored into the mitigation plan that was developed and approved for the 2002 Permit. As a result, there are 26 acres for which mitigation is necessary under the 2006 Permit. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Collier has proposed an acceptable mitigation plan for the new wetland impacts that will result from the project due to the proposed modifications incorporated in the 2006 Permit. Except for the mitigation for the additional wetland impacts, the mitigation plan for the 2006 Permit remains essentially unchanged from the 2002 Permit, including the Grading and Planting Plan, Monitoring Plan, and Mitigation, Monitoring, and Maintenance Plan. The onsite mitigation proposal includes preservation and restoration of wetlands through the removal of melaleuca and other exotic plants and replanting in areas of dense exotic species coverage. Significantly, Collier has not proposed any modifications that would change the effectiveness of the Northern Preserve in providing mitigation for the wetland impacts proposed and approved in the 2002 Permit. While Petitioners claim that the wetlands in the Northern Preserve may be subject to some changes in the level and seasonality of inundation as a result of the SWMS modifications, the evidence does not support those assertions. The revised SWMS will continue to allow water to flow through the Northern Preserve in a manner consistent with existing conditions while providing some flood control protection for extreme rainfall events. Petitioners also suggest that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts of the modified SWMS on the wetlands. However, the more persuasive testimony indicates that the timing and levels within the wetlands will not be affected by the revised SWMS. The control elevations within the development area have not changed from the 2002 Permit, and these protect the onsite wetlands and ensure that those wetlands will function as expected. With respect to the internal wetlands within the development area, the control elevations have not changed from the 2002 Permit and the evidence establishes that the internal wetlands will continue to function and operate as contemplated in the 2002 Permit. There has been some relocation and reconfiguration of the internal wetland preserve areas that will actually enhance the value of the mitigation by connecting those wetland areas to other preserve areas. Petitioners further suggested that the wetland mitigation within the development area would not function as permitted in the 2002 Permit due to the spill over from the lakes to the wetlands. However, when the water reaches those internal wetland preserves, it has been treated to Class III water quality standards. Therefore, the mitigation values of those wetlands preserves will not be changed or affected due to water quality. Petitioners' objections to the wetland impacts and mitigation were primarily directed at the overall impacts rather than to the 2006 modifications. However, their witness was unaware of the values provided by the additional acres that will be impacted through the 2006 Permit. Therefore, a challenge to 2002 permitted wetlands impacts and mitigation is inappropriate in this proceeding. Functions To Fish and Wildlife and Listed Species Section 4.2.2 of the BOR implements Florida Administrative Code Rule 40E-4.301(1)(d) and provides that an applicant must provide reasonable assurances that a project will not cause adverse impact to the abundance and diversity of fish, wildlife, and listed species or their habitat. With respect to the 586.66 acres of wetland impacts permitted in the 2002 Permit, the 2006 Permit does not modify or affect the values that the wetlands provide to either the abundance or diversity of fish and wildlife. Review of the wetlands criteria as to those acres was finally determined in the 2002 Permit and should not be reopened. By relocating thirteen of the previously impacted acres so they are most closely connected to other wetlands, their value to fish and wildlife will increase. As explained by the District's witness Bain, if Collier had moved the preserve area and changed its functional value, the District would have been required to reevaluate the mitigation that had been accepted for the wetland impacts in the 2002 permit. In this case, however, because the Northern Preserve area did not change, the District's review is limited to the newly impacted wetlands internal to the development for which mitigation was not provided in the 2002 Permit. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the project's wetlands. The only wetland values assessed in the 2006 Permit were the additional wetland impacts that were not mitigated in the 2002 Permit. The evidence establishes that the current value of the wetlands is low due to the heavy melaleuca infestation, which is greater than fifty percent coverage in most locations and seventy-five percent or more in much of the area. Melaleuca has the effect of draining short hydroperiod wetlands. While Petitioners may disagree with how the wetlands were previously evaluated, nothing in the 2006 modification allows or requires a reassessment of their value. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod (the depth, duration, or frequency of inundation) of wetlands or other surface waters. Subsection (a) of this standard applies if the project is expected to reduce the hydroperiod in any of the project's wetlands. Conversely, subsection (b) applies if the project is expected to increase the hydroperiod through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Again, there is no basis for the District to reopen and reevaluate the wetlands for which mitigation has already been permitted. No evidence was presented to indicate that there would be any obstacles or problems to accomplishing the mitigation that was proposed and accepted in 2002. In any event, the engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Northern Preserve will occur from what was permitted in the 2002 Permit. By analyzing the various biological indicators onsite and setting the control elevations within the SWMS and the wetlands (both the Northern Preserve and onsite preserve wetlands) above the WSWT, the project ensures that the appropriate hydrology will be maintained. Though the fish and wildlife are not expected to be adversely affected by the 2006 Permit, Collier will be conducting monitoring of plants and animals on the site as an extra measure of assurance as contemplated under BOR Section 4.2.3.4(c). Focusing on just the changes from 2002 to 2006, Petitioners' two experts conceded that the hydrology in the Northern Preserve and its value to wildlife and listed species (including the wood stork) would be benefited in the 2006 Permit over that contemplated in the 2002 Permit due to the removal of the Flow-Way. Secondary Impacts to Water Resources Florida Administrative Code Rule 40E-4.301(1)(f) requires a demonstration that the proposed activities "[w]ill not cause adverse secondary impacts to the water resources." A similar demonstration is required by Sections 4.1.1(f) and 4.2.7 of the BOR. In this case, the secondary impacts considered by the District were potential impacts due to the relocation and expansion of the buffer preserve areas to the perimeter of the project site. In conducting a secondary impact analysis, BOR Section 4.2.7 requires that the District consider only those future projects or activities which would not occur "but for" the proposed system. Here, the evidence demonstrated that no wetlands or other surface waters will be secondarily impacted by the modifications to the SWMS as part of the 2006 Permit. The undersigned has rejected Petitioners' contention that a proposed extension of County Road 951 through the development site should be considered a secondary impact in evaluating this project. This extension has been proposed for at least fifteen years and its precise configuration is unclear. It is not required to be built as a result of the project and there are no firm plans or contracts in place to construct the road. Although the road is listed on the County's transportation plan, it remains speculative as to if and when it will be built. Additionally, there is no evidence the County has any ownership interest in property for a road in the area identified by Petitioners. Witness Bain testified that the District examined the Collier County Public Records and an easement had not been granted to the County to build the road. i. Elimination and Reduction Florida Administrative Code Rule 40E-4.301((3) provides in part that "the provisions for elimination or reduction of impacts contained in the [BOR] shall determine whether the reasonable assurances required by subsection 40E- 4.301(1) and Rule 40E-4.302, F.A.C., have been provided." Section 4.2.1.1 of the BOR implements that provision and provides that elimination and reduction of impacts is not required when: The ecological value of the function provided by the area of wetland or other surface water to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3 and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected; . . . In accordance with that section, Collier was not required to implement practicable design modifications to reduce or eliminate impacts. The District did a site-specific analysis of the quality of the 39.5 acres of adversely affected wetlands, taking into consideration the condition of the wetlands, hydrologic connection, uniqueness, location, and fish and wildlife utilization. The unrebutted testimony is that the quality of the 39.5 acres of wetlands to be impacted by the 2006 Permit is low and these wetlands were already previously authorized to be secondarily impacted. The low quality wetlands are melaleuca dominated making them not unique. The mitigation will provide greater long-term ecological value than the impacted wetlands. As noted on page 10 of the Staff Report, there will be a larger, contiguous mitigation area to offset direct impacts to previously preserved, but secondarily impacted wetlands and the preservation/enhancement of the external preserve area. The 2006 Permit provides that 5.68 credits are required to be purchased in the PIMB. Collier has advised the District that 27.68 credits are being purchased pursuant to its Corps permit. Thus, Collier will be purchasing more credits than required by the District. Witness Bain took this additional mitigation into account in determining whether the proposed mitigation will provide greater long term ecological value than the area impacted. While the Corps permit is an entirely separate permit action, Collier has agreed to include an additional 5.68 credits within the Basin beyond what is required in the Staff Report as a condition to this 2006 Permit. Therefore, the mitigation is clearly of greater long-term ecological value than the area impacted. Additional Requirements Florida Administrative Code Rule 40E-4.302 imposes additional requirements on an ERP applicant, including a cumulative impact assessment, if appropriate, and satisfaction of a public interest test. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant demonstrate the project "[w]ill not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the [BOR]." Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin, and a cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. See Florida Wildlife Federation et al. v. South Florida Water Management District et al., 2006 Fla. ENV LEXIS 49 at *49, DOAH Case Nos. 04-3064 and 04-3084 (DOAH Dec. 3, 2006, SFWMD Dec. 8, 2006). Also, Section 373.414(8)(a), Florida Statutes, requires the District to consider the cumulative impacts upon surface water and wetlands within the same drainage basin. Thus, the cumulative impact analysis applies only when mitigation is proposed outside of the drainage basin within which the impacts are to occur. Broward County v. Weiss et al., 2002 Fla. ENV LEXIS 298 at *29, DOAH Case No. 01-3373 (DOAH Aug. 27, 2002, SFWMD Nov. 14, 2002). In this case, all of the proposed mitigation associated with the 2006 Permit modifications is located within the West Collier Basin. The evidence shows that the mitigation will offset the impacts to wetlands proposed in the 2006 Permit. Therefore, since the mitigation will be performed in the same Basin as the impacts and will offset the adverse impacts, the District must "consider the regulated activity to meet the cumulative impact requirements" of Section 373.414(8)(a), Florida Statutes. A new cumulative impacts analysis based on removal of the Flow-Way is not necessary because the modification does not change the cumulative impacts analysis conducted in the 2002 Permit. Since the Flow-Way was not considered a wetland impact or contributing to the mitigation in the 2002 Permit, its removal does not affect the adequacy of the previously conducted cumulative impacts analysis or the mitigation. Accordingly, there is no need for a new cumulative impact analysis with regards to the Northern Preserve. Finally, contrary to Petitioners' assertion, there is no rule or BOR provision which requires Collier to mitigate for the alleged prior impacts of other projects. Public Interest Test In addition to complying with the above criteria, because the project is located in, on, or over wetlands or other surface waters, Collier must also address the criteria contained in the Public Interest Test in Florida Administrative Code Rule 40E-4.302(1) and Section 4.2.3 of the BOR by demonstrating that the project is not contrary to the public interest. See also § 373.414(1)(a), Fla. Stat. Since the project does not discharge into an OFW or significantly degrade an OFW, the higher standard of "clearly in the public interest" does not apply. In determining compliance with the test, Florida Administrative Code Rule 40E-4.302(1)(a) requires that the District do so by "balancing the [seven] criteria [in the rule]." Findings with respect to each of the seven criteria are set out below. (Except for pointing out that the District does not have an adopted rule which provides more specific detail on how to perform the balancing test than is now found in paragraph (1)(a), and a contention that witness Bain's testimony was insufficient to explain how the staff balanced those factors, Petitioners did not present any evidence at hearing or argument in their Proposed Recommended Order in support of their contention that the above rule, BOR section, or the associated statute have been applied by the District in an unconstitutional manner.) Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.) Collier provided reasonable assurances that the project will not cause any onsite or offsite flooding nor cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria. Also, the post- development peak rate of discharge does not exceed the allowable discharge rate. Further, the project will not cause any environmental hazards affecting public health, safety, or welfare. The project is considered neutral as to this factor. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.) For the direct wetland impacts under the 2006 Permit, Collier proposes mitigation which has not changed from the 2002 Permit. The mitigation proposed was previously determined to offset potential impacts to fish and wildlife and particularly wood stork habitats. The evidence indicates that the mitigation plan for the Northern Preserve will improve wood stork habitat from its current melaleuca infested condition. For the additional 40.18 acres of wetland impacts authorized in 2006, the mitigation is of greater long-term value. Thus, the project should be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.) The parties have stipulated that the project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the project's construction would result in harmful erosion or shoaling. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.) The project does not provide any fishing, recreational values, or marine productivity. Therefore, the project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.) It is undisputed that the project is permanent in nature. Even though the project is permanent, it is considered neutral as to this factor because mitigation will offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.) The parties have stipulated that no significant archeological or historical resources have been identified on this site. Therefore, the project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.) The current condition and relative value of functions being performed by the areas affected by the project is low due to the melaleuca infestation. Project mitigation will restore 940 acres of poor quality wetlands and uplands, greatly enhancing their function and value. Therefore, the project should be considered positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value. Summary of Public Interest Factors Overall, the project is no worse than neutral measured against any one of the criteria individually. Therefore, the project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting the application of I. M. Collier, J.V. for a modification to Environmental Resource Permit No. 11-02031P. DONE AND ENTERED this 24th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2007.
Findings Of Fact Application No. 76-00360 is for a new consumptive water use involving one well. The application seeks withdrawal of 1.29 million gallons per day average daily withdrawal and 2.59 million gallons per day maximum daily withdrawal. The water will be withdrawn from the Floridan Aquifer for the irrigation of tomatoes. The amount of water sought to be consumptively used will exceed the water crop as defined, by the district because approximately 25 percent of the water will be discharged off site. The land which is the subject of this application is being leased by the applicant for the purpose of growing tomatoes. Applicant's lease terminates in September, 1978 with an option to renew. Except as otherwise set forth above, the applied for consumptive use will not violate any of the conditions set forth in Subsections 16J-2.11(2), (3) or (4), F.A.C. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: The applicant reduce runoff to 4.6 percent of the amount pumped by January 1, 1978. The district be allowed to install flowmeters and be allowed to go on the property to read these meters. The permit shall terminate on September 30, 1978, unless permitee seeks an extension. That the applicant give written notice of his intention to renew the lease if he so intends.
Recommendation It is hereby RECOMMENDED that Application No. 76-00360 be granted subject to the conditions set forth in paragraph 5 above. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Ralph Williford Staff Attorney Glisson and Williford Farms, Inc. Southwest Florida Water Post Office Box 911 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for consumptive use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the owner of Lot 28, Hidden Bay Subdivision, Martin County, Florida. On July 19, 1990, Petitioner filed an application with the Respondent for a dredge and fill permit to construct on the wetland portion of his lot a single family dwelling on stilts, a garage, and a connecting driveway to an existing roadway. The application also seeks a permit to retain a roadway that was constructed on the property before the Respondent asserted jurisdiction over the property. The existing roadway is 25 feet wide and 510 feet long and remained in existence at the time of the formal hearing. The connecting driveway on the wetlands portion of the property would require 40 cubic yards of fill. The following, taken from the Notice of Permit Denial entered by Respondent, accurately describes the proposed project: The proposed project will entail the temporary placement of 500 cubit yards of clean fill in order to set piles for a proposed stilt house. Additional fill (40 cubic yards) is proposed for a driveway to access a proposed garage. Riprap is proposed along the east slope of the driveway and along the northwest slope under the proposed stilt house. In addition, 186 cubic yards of the existing unauthorized fill road is proposed to remain. Total acreage to be impacted by this project is .092 acres. Petitioner's lot fronts Bessey Creek and is located in Section 1, Township 38 South, Range 40 East, in Palm City. Petitioner's lot is located approximately 2,200 feet south of the C-23 Canal on Bessey Creek. Bessey Creek is designated a Class III water. Bessey Creek combines with other tributaries and ultimately discharges into the North Fork of the St. Lucie River, which is designated an Outstanding Florida Water. Petitioner's lot consists of 1.82 acres. Respondent has asserted jurisdiction over approximately 1.3 acres of Petitioner's lot on the grounds that it is a fresh water wetland. Petitioner does not challenge Respondent's asserted jurisdiction in this proceeding. The Respondent has jurisdiction over dredge and fill activities conducted on the portion of Petitioner's lot that is at issue in this proceeding. This project is not exempt from permitting procedures. A dredge and fill permit is required for the proposed construction. Prior to applying for this permit, Petitioner contacted James McElheny, a landscape architect, who assisted Petitioner in drawing up the plans for the house, the driveway, and the garage that Petitioner desired to construct on the property. Without being aware that a permit from the Respondent would be required, Petitioner constructed a driveway on a portion of his property that was within the permitting jurisdiction of Respondent. This driveway extended to the landward end of a boardwalk that terminated as a dock in Bessey Creek. After Petitioner became aware of the need for a permit, he removed the filled driveway to a point that Martin County and Respondent agreed was appropriate. A portion of the driveway remained on property within the permitting jurisdiction of the Respondent at the time of the formal hearing. The plan prepared by Mr. McElheny also depicted this existing, unauthorized roadway. Petitioner's application seeks, in part, a permit to retain this driveway. On June 10, 1991, Respondent issued its Notice of Permit Denial based on the Respondent's conclusion that the Petitioner had failed to provide the required assurances in Sections 403.918(1) and (2), Florida Statutes. The Notice of Permit Denial provided, in pertinent part, as follows: The Department hereby denies the permit for the following reasons: This project is expected to have both short and long term impacts to biological resources and water quality. The total acreage to be impacted by this project is .092 acres. In addition, the applicant has not provided reasonable assurance that the project is not contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. Pursuant to 403.919, F.S. which gives the Department the authority to examine secondary impacts, the Department has concerns about additional wetland resource and water quality impacts that may result from this project. Floodplain areas are essential to the river system and provide important functions for the environment. The floodplain serves as a buffer system in high tide and storm events. It also serves as a source of detrital input which supports the freshwater and estuarine food chains. In addition, these areas act to improve water quality by stabilizing sediment and filtering upland runoff. Long-term effects of the proposed project would include a decrease in the productivity of the system, as well as a decrease in the filtering and stabilizing capabilities of the system. Water quality degradation is also expected to occur with upland runoff from pesticides, fertilizers, sewerage and petroleum products. Floodplain wetlands also provide a habitat for a wide variety of reptiles, amphibians, birds, crustaceans and mammals. This would eliminate this wetland habitat. This project is expected to be in violation of the following Florida Statutes and Florida Administrative Code Rules: 403.918 Criteria for granting or denying permits 17-312.080 Standards for Issuance or Denial of Permit 17-312.300(3) Mitigation Intent 17-302.560 Criteria: Class III waters The Department has determined that the following changes to the project make the project permittable. Modify the project to reduce or eliminate adverse environmental impact by: Removing the unauthorized fill road from water of the state. Relocate the proposed house to utilize as much upland area on the property as possible. Relocate the garage and access driveway to an upland area [and] eliminate or modify the garage and access road to reduce impacts. Section 403.918, Florida Statutes, provides the following permitting criteria pertinent to this proceeding: A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. . . . A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. . . . (a) In determining whether the project will adversely affect the public health, safety, or welfare or the property of others . . . the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others. Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitat; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Respondent is entitled to consider the cumulative impact of the proposed project pursuant to Section 403.919, Florida Statutes, which provides as follows: The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider: The impact of the project for which the permit is sought. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought. The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations. The residence that Petitioner proposes to build on the wetland portion of the property will be constructed on pilings so that the underside of the house will be 12 feet above the ground. There will be a total of 12 pilings, with each piling being 10 inches square. The "footprint" of the house will be 1,654 square feet. If the project is permitted, best management practice will require that a silt screen be erected around the construction site during construction to prevent silt runoff. The proposed site for the house is located in a natural clearing that would require minimal clearing. If the project is to be permitted in this wetland, the site selected by Petitioner is the best site with the least impact on the wetland. Petitioner would be required to remove up to two laurel oaks and seven red maple trees. These are relatively small trees, and both species are common. Petitioner would also be required to remove shrub of no particular unique value. Petitioner proposes to mitigate the removal of the trees by replanting on the property trees that were removed in a 2-1 ratio, so that 6 laurel oaks and 14 red maples would be replanted. Petitioner also proposes to revegetate the area beneath the residence, with the exception of the area required by the pilings. There are invasive, exotic plants on the property, such as Brazilian pepper, that would be removed by Petitioner and replaced by native plants. Ms. Jacqueline Kelly, the environmental specialist who reviewed this project for Respondent, visited the property approximately four times for a total of eight hours. Ms. Kelly is of the opinion that no dredge and fill activity should be permitted on jurisdictional wetlands. Ms. Kelly testified that she observed several species of birds while she was on the property, including a wood stork, a great blue heron, a little blue heron, a tricolored heron, an osprey, bluejays, woodpeckers, and grackles. The wood stork is an endangered species and the little blue heron, the tricolored heron, and the osprey are species of special concern. These birds do not nest on the subject property, and they were not observed in the area of the wetland on which the proposed construction would occur. There was no testimony upon which it can be concluded that the proposed construction will stop these species from coming on to the property. Because of the slope of the terrain, the upland portion of the Petitioner's property drains away from the wetland while the portion on which the proposed construction would occur drains toward the wetland. At the formal hearing, Petitioner suggested that any concerns as to drainage from the roof of the proposed residence could be discharged onto the upland portion of the lot by gutters. In his post-hearing submittal, Petitioner proposes that a condition of the permit be that "[a] roof drainage system be installed that allows the roof to drain to the upland portion of the project." The permitting requirement contained in Section 403.918(6), Florida Statutes, pertaining to historical or archaeological resources was not at issue in this proceeding. Ms. Kelly concluded that Petitioner has not provided reasonable assurances required by Section 403.918(2), Florida Statutes, as to each of the remaining permitting criteria. The rationale given by Ms. Kelly for her conclusions is not persuasive. The greater weight of the evidence is that all reasonable assurances required by Section 403.918(2), Florida Statutes, that were at issue in this proceeding have been provided as it pertains to the construction of the residence. The existing roadway was filled using shell rock which has stabilized. The mere existence of the roadway on the wetland property was not shown to violate any permitting criteria since this roadway does not violate water quality standards and is not contrary to the public interest. Petitioner did not, however, provide reasonable assurances that the utilization of this existing roadway as either a driveway or a parking area would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that such use would not be contrary to the public interest or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. Petitioner did not provide reasonable assurances that the construction of the garage or the extension of the driveway on these wetlands would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. John Meyer was of the opinion that the project should be denied because of the possible precedent that the permitting of this project may establish for other owners of wetland properties. There was no factual or legal basis established for this opinion. The permitting of this project has no value as a precedent for other projects. There was no evidence that there were other permit applications pending for other projects in wetlands, and Mr. Meyer could only recall one or two such applications ever having been filed. The greater weight of the evidence establishes that speculative cumulative impacts of this project does not prohibit the permit pursuant to the provisions of Section 409.919(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which permits Petitioner to construct the residence on stilts with the following conditions: That silt screens be erected during the actual construction to prevent silt runoff from the construction from reaching Bessey Creek. That a roof drainage system be installed that allows the roof to drain to the upland portion of the project. That Petitioner be required to mitigate for the removal of laurel oaks and red maple by replanting on the property two laurel oaks for each laurel oak removed and by replanting on the property two red maples for each red maple removed. That Petitioner be required to revegetate with native plants the area under the house except for the areas required for the stilts. IT IS FURTHER RECOMMENDED that Respondent deny a permit to construct a garage or extend the existing roadway. IT IS FURTHER RECOMMENDED that Respondent permit Petitioner to retain the existing roadway on the condition that the roadway not be utilized as either a driveway or as a parking area for motor vehicles. DONE AND ENTERED this 12th day of January 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January 1994.
