Findings Of Fact Respondent is a water management district established pursuant to Chapter 373, Florida Statutes. Respondent purchased certain properties located in the St. Johns River Basin between State Road 46 and State Road 50 known as "Seminole Ranch" ("the property") in 1981, in part with moneys provided by the Water Management Lands Trust Fund pursuant to Section 373.59, Florida Statutes. The property is composed of approximately 28,000 acres abutting the St. Johns River. Petitioner, Friends of the St. Johns, Inc., is an incorporated organization dedicated to the restoration and preservation of the ecology of the St. Johns River system. Membership in the organization numbers between three and four thousand, including group members, over half of whom use the river for recreational and other purposes. Many of the members of the group also own property fronting on the St. Johns River. Petitioner, Chester Brown, is a member of Friends of the St. Johns, Inc., and is also a landowner whose property is located north of Seminole Ranch bordering on the river. The St. Johns River in that location runs from south to north. Contrary to its own staff's recommendation, the Respondent's governing board on March 10, 1982, voted to approve the execution of a cattle-grazing lease, leasing the property to C. W. Mann Bailey. The lease was executed on May 12, 1982, for a term of one year, commencing August 30, 1982, and expiring August 29, 1983. The Upper St. Johns River Basin, in which the property is located, is a highly stressed marsh system that has historically sustained environmental degradation due to floodplain encroachment and agricultural impacts. From approximately 1938 until the time of the district's purchase of the property in 1981, the property had been used continuously for the grazing of cattle. At the time the property was purchased by the district, approximately 2,500 head of cattle were being grazed on the land. In addition, controlled burning to encourage the growth of forage material was utilized as a land management tool in both the upland and marshy portions of the property. The hydrology of the Upper St. Johns River Basin renders it susceptible to numerous unquantifiable sources of pollution. The predominant portion of the nutrient loading to the river system in the area of the property" occurs upstream of the property. Significant nutrient impacts are also attributable to the convergence of the Econlockhatchee River with the St. Johns River system downstream of the property. Recent water quality analyses conducted during high flow conditions reveal no increase in the concentration of nutrients in the area of the property between State Road 46, located to the south, and State Road 50 to the north. The lease in dispute in this proceeding contains certain mitigating covenants which require the lessee, at his expense, to: restrict the number of cattle on the property to a 1,500-head daily average in order to better protect the ecosystem on the property; construct and maintain an access around the property perimeter for use as a fire break; repair and maintain all existing roadways on the property; abstain from timber removal except with district consent; maintain the premises in good repair; assist in protecting historic and archaeological sites on the property; guard against and report all fires and limit all controlled burns to the uplands, and then only with permission of the Florida Division of Forestry; protect threatened biota and species as designated by statute; report all violations of game laws to proper authorities; protect the property against trespassers and vandalism; and provide a resident manager to ensure compliance with these contractual covenants. In addition, the lessee is required under the terms of the lease to pay an annual rental to the district of $50,000. These mitigating covenants are particularly important in light of the short span of time in which the property was offered for purchase to the district and the decision to purchase, all of which occurred at a time when the district had little or no budgeted capacity to adequately manage the land. The disputed lease represents but one component of an interim land management plan, the benefits, including income to compensate for management expenses, surveillance, and maintenance, provide the district with a Provisional management option until a comprehensive, fiscally feasible, land management plan is developed and implemented. The district has, apparently, determined that upon expiration of the current lease, the property will not again be leased for cattle grazing. The record in this proceeding clearly establishes that long-term use of property abutting the St. Johns River for cattle grazing has had adverse water quality impacts on the receiving waters. This fact is due both to deposition of fecal material into the water column, both directly and through runoff, and by cattle cropping marsh vegetation thereby adversely affecting both primary productivity and repropogation of plant species. However, the record also establishes that most damage attributable to cattle raising is not irreversible, and that, once cattle are removed the marsh will recover. In addition, the record in this cause is completely devoid of any evidence quantifying the impact of cattle grazing on the property on the adjacent marsh and river systems as indicated above, cattle grazing has been continuously conducted on the property since approximately 1938. As a result, it cannot be found on the basis of this record that cattle-grazing activities conducted on the property in any way violate water quality criteria contained in Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code, or have any quantifiable affect at all on the surrounding ecosystem. The record in this cause clearly establishes that the governing board of the district was faced with a decision requiring weighing the continued effect of cattle grazing on the property against its present ability to effectively manage the property on a short-term basis. In resolving this dilemma the governing board chose a middle ground whereby mitigating covenants were placed in the lease to lessen the prior impact of cattle grazing on the property and its surrounding area, and at the same time allow effective management of the property over the short term until a comprehensive land management plan could be developed. This decision has ample factual support in the record, and is a rational and reasoned response to the board's dilemma.
Conclusions Pursuant to notice, the Division of Administrative Hearings (DOA), by its duly designated administrative law judge, the Honorable Donald R. Alexander, held a formal administrative hearing in the above-styled case on October 20 and 21, and November 6, 1997, in Gainesville, Florida. A. APPEARANCES For Petitioners, GREENSPACE PRESERVATION ASSOCIATION, INC.; FRANK WARD; SAL LOCASCIO; FREDERICK P. PETERKIN; AND HAROLD M. STAHMER.:: Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 For Respondent, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT (District staff): Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 For Respondent, CITY OF GAINESVILLE. (the City): Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110 On December 19, 1997, Judge Alexander submitted to the St. Johns River Water Management District, and all other parties to this proceeding, a Recommended Order, a copy of which is attached hereto as Exhibit "A." District staff filed exceptions to the Recommended Order. This matter then came before the Governing Board on January 14, 1996, for final agency action. B. STATEMENT OF THE ISSUE The issue in this case is whether the City’s applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved. C. RULINGS ON EXCEPTIONS RESPONDENT DISTRICT STAFF’S EXCEPTIONS 1. Exception 1 District staff take exception to conclusion of law 60 and assert that the Administrative Law Judge’s conclusion the City provided reasonable assurances that its notice general permit application meets the requirements of Rule 40C-400.475(2), Florida Administrative Code (F.A.C.), is not complete in that the Judge should have also cited Rule 40C400.475(1), F.A.C. The Governing Board may reject or modify conclusions of law and interpretation of administrative mules over which it has substantive jurisdiction. §120.57(1)G), Fla. Stat. (1997). Rule 40C-400.475(1), F.A.C., sets forth certain size thresholds which a project must be below to qualify for this noticed general environmental resource permit, A project must both be below these size thresholds and meet the conditidns of Rule 40C-400.475(2), F.A.C., to be authorized by this noticed general environmental resource permit. , In this case, the Administrative Law Judge found that the activity for which this noticed general environmental resource permit is sought involves piling supported structures. (Finding of Fact 39) The Administrative Law Judge found that the total area of the proposed bridge and boardwalk over surface waters or wetlands is approximately 481 square feet. (Finding of Fact 41). The Administrative Law Judge determined that the affected waters, Hogtown and Possum Creeks are designated Class HI waters. (Finding of Fact 41)” Since the City’s application for this noticed general environmental resource permit involves piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters, District staff's exception number one is accepted, and Conclusion of Law 60 is modified to read that the District’s requirements applicable to the City’s noticed general environmental resource permit application are found in Rule 40C-400.475(1) and (2), F.A.C., and that the City has provided reasonable assurances that the project meets these requirements. 2. Exception 2 In its exception 2, District staff takes exception to the Administrative Hearing Officer’s ultimate recommendation of approving the subject applications. District staff asserts that in his recommendation, the Administrative Hearing Officer did not set forth the relevant conditions which are to be a part of the recommended permits. District staff asserts that these conditions were implicitly accepted by the Administrative Law Judge in making his recommendation. "As to the application for the stormwater permit, we note that Rule 40C-42.032, F.A.C., provides that, unless waived or modified by the Board, certain limiting conditions are placed on every permit issued by the District under Chapter 40C-42, F.A.C. These conditions are set forth in Rule 40C-43.032(2)(a), F.A.C. These same conditions are set forth in District staff's Exhibit 3A which was admitted. (See Preliminary Statement portion of Recommended Order) The record does not indicate that any party objected to these conditions, or that the Administrative Law Judge otherwise thought they should be changed or waived. No party has objected to the District staff's exception on this point. Thus, District staff's Exception 2 is accepted as to the standard conditions in Rule 40C- 43.032(2)(a), F.A.C., and these standard conditions shall be a part of the City’s stormwater permit. District staff’s Exception 2 also asserts that Special ERP conditions 1, 7, 8, 9, and 28, and Other Conditions 1, 2, and 3, should be attached to the stormwater permit. Special ERP conditions 1, 7, 8, 9, and 28 were set forth in District staff's Exhibit 3B which was admitted. (See Preliminary Statement portion of Recommended Order). Other conditions 1 and 2 were set forth in the City’s Exhibit 19 (consisting of the District staff s technical staff report for the stormwater permit) which was admitted. Other condition 3 was set forth in District staff’s Exhibit 4 which was admitted. The record does not indicate that any party objected to any of these conditions. Moreover, the Administrative Law J udge’s findings of fact reflect the requirements of these conditions. For example, other condition number 3 is referred to in Finding of Fact 17, special condition 7 is referred to in Finding of Fact 24, and the monthly sinkhole monitoring requirements of special condition 8 is reflected in Finding of Fact 33. Thus, it appears the Administrative Law Judge assumed the application of these special conditions in determining that reasonable assurances were provided. Therefore, District staff's Exception 2 is accepted on this point, and these conditions shall be a part of the City’s stormwater permit. As to the application for the noticed general permit, Rule 40C-400.215, F.A.C., requires several standard conditions, set forth in that tule, to be applied to all noticed general environmental resource permits. This conditions were also set forth in the City’s Exhibit 20 which was admitted. There is nothing in the record or the Administrative Law Judge’s findings of fact that indicates that these conditions should not be applied to this noticed general environmental resource permit. Therefore, District staff's Exception 2 is accepted on this point, and the conditions of Rule 40C-400.215, F.A.C., shall be a part of the City’s noticed general environmental resource permit. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated December 19, 1997, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (rulings on District staff’s Exceptions 1 and 2). The City of Gainesvilles’ applications numbered 42-001-0789AIG-ERP and 400-001- 0309AIG-ERP for a stormwater environmental resource permit and noticed general environmental resource permit, respectively, are hereby granted under the terms and conditions provided herein. . DONE AND ORDERED this A ay of January 1998, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Sea DAN ROACH RENDERED this 79 day ‘leary CHAIRMAN Z. PATRICIA C. SCHUL DISTRICT CLERK copies to: DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building = 77" > > 1230 Apalachee Parkway Tallahassee, Florida 32399-1550; Jennifer B. Springfield, Esquire Mary Jane Angelo St. Johns River Water management District Post Office Box 1429 Palatka, FL 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110
