The Issue The issue is whether Respondent Win-Suncoast, Ltd., is entitled to an individual environmental resource permit to construct a surface water management system to serve a proposed shopping center.
Findings Of Fact On April 25, 2006, Applicant filed with District an application for an individual ERP to construct a surface water management system on a parcel located in south Pasco County on the north side of State Road 54, about 1000 feet east of the right-of-way of the Suncoast Parkway. The proposed surface water management system would serve the commercial development of the now-vacant, 36.7-acre parcel. State Road 54 runs from State Road 19 near New Port Richey to Interstate 75; at the Suncoast Parkway, State Road 54 is six lanes wide. The Suncoast Parkway is a limited-access toll road that runs from Memorial Parkway in Tampa to U.S. Route 98 north of Brooksville. The subject parcel is about one mile north of Hillsborough County, four miles east of the terminus of Gunn Highway at State Road 54, and five miles west of State Road The vicinity of this intersection is experiencing rapid commercial development and escalating land values, mostly since the completion of the Suncoast Parkway in 2001. Three parcels adjoin the subject parcel. Immediately north of the subject parcel is the Ashley Glen parcel, which consists of 266.36 acres. Immediately west of the subject parcel and the Ashley Glen parcel is the parcel owned by Petitioner. Petitioner's parcel has about 700 feet of frontage on State Road 54 and runs the length of the western borders of the subject parcel and the Ashley Glen parcel. The northern border of Petitioner's parcel and the Ashley Glen parcel is an abandoned railroad grade. Immediately east of the subject parcel is a DOT-owned parcel, which serves as floodplain mitigation, probably in connection with the Suncoast Parkway or State Road 54. Petitioner challenged the issuance of an ERP in two administrative cases involving the Ashley Glen parcel. In the Blanco I final order, which is dated January 25, 2005, the District denied an ERP for a surface water management system to serve the development of a residential subdivision of over 400 lots. The ERP was denied due to the applicant's failure to conduct an appropriate wildlife survey and to account for the effect of a newly excavated 37-acre borrow pit/pond on a large forested wetland partly occupying a large area on the north end of Petitioner's property. After the developer submitted a revised application, Petitioner challenged the ERP that District proposed to issue. After an administrative hearing, District granted an ERP in the Blanco II final order, which is dated May 30, 2006. Significant differences in the second application were that the applicant had reduced the maximum depth of the borrow pit/pond from 25 feet to 12 feet, under most circumstances, and that the applicant had obtained an appropriate wildlife survey. The subject parcel is about 1.5 miles south of a large tract proposed for acquisition by District and known as the Masaryktown Canal area. This tract would join the smaller Starkey tract, which is also owned by District, with another somewhat smaller publicly owned tract to place much of central Pasco County, from Hillsborough County to Hernando County, in public ownership. Water from the subject parcel drains north toward central Pasco County and then into the Anclote River. The record is in conflict as to the drainage basin in which the subject parcel is located. According to BOR Appendix 6, which is dated May 2, 2006, the subject parcel is in the southern end of the Upper Coastal Drainage basin, which is a vast basin that stretches down the Gulf coast from north of Crystal River to the southern tip of Pinellas County. At points, this basin is not wide, such as at the southern tip of Pinellas County, where, just a few miles inland, the Tampa Bay Drainage basin begins. At other places, the Upper Coastal Drainage basin extends considerably inland, such as at the Pasco County--Hernando County line, where the basin extends about 25 miles east from the Gulf coast, ending only five miles west of the Withlacoochee River. According to District Exhibit 5, which is the District Land Acquisition Priorities Map issued in December 2004, the subject parcel is in the Tampa Bay/Anclote River Watershed. On this map, a large, unnamed watershed, corresponding roughly to the Upper Coastal Drainage basin in BOR Appendix 6, runs to the north of the subject parcel's watershed. At the hearing, District explained that the boundaries shown on District Exhibit 5 identify political subdivisions. The "basins," which are marked in green letters, appear to be political subdivisions, judging from their straight lines, which suggest political, not natural, boundaries. However, the "watersheds," which are marked in larger blue letters, are actual drainage basins. Applicant's ecologist initially believed that the subject parcel was in the Hillsborough watershed. Also, the basin map shown on the District website, District depicts the subject parcel's basin (here named the "Pinellas--Anclote River Basin") as that south of the large basin (here named the "Coastal Basin") encompassing almost the entire coast within the northern area of District's jurisdiction1. Factually, the stronger evidence places the subject parcel in a basin to the south of the large coastal basin described in the preceding paragraphs. However, for the reasons discussed in the Conclusions of Law, the basin depicted in BOR Appendix 6 governs. Although not yet constructed, an important feature of the subject parcel is a road to be known as Ashley Glen Road. This road will nearly bisect the property and will run north from State Road 54 through the Ashley Glen parcel. The road is likely to be developed because it has already been permitted, is subject to a co-developers' agreement, and has already been dedicated to Pasco County. The developer in Blanco I and Blanco II has since sold the Ashley Glen parcel to another developer, which has substantially changed the original plan of development. The new developer has obtained a Development of Regional Impact approval for the development of 1.8 million square feet of office, 450,000 square feet of retail, and 900 multifamily units. However, the new development will incorporate Ashley Glen Road. (For ease of reference, this recommended order continues to use the name, "Ashley Glen" to refer to the parcel, development, and road, although new names may attach to each.) At present, the subject parcel conveys stormwater from south to north. Running along the eastern edge of the parcel is a 20-foot-wide ditch that receives water, by way of a culvert under State Road 54, from the extensive wetland system known as the Hogan wetland, which lies to the south of State Road 54. The ditch was dredged (or re-dredged) about 50 years ago. From south to north, the ditch runs straight in a north-northwesterly direction to about midpoint on the subject parcel, at which point the ditch turns due north and runs in nearly a straight line into and along the eastern part of the Ashley Glen parcel to the north. The northern part of the Ashley Glen parcel widens in an easterly direction, so the ditch bisects this part of the Ashley Glen parcel, prior to turning to the northwest for a short run to the railroad grade. There are two wetlands presently on the subject parcel. In the southeast corner is an isolated wetland known as Wetland B12, which has been described above. The ERP approved in Blanco II authorizes the filling of this entire wetland, whose eastern third would be occupied by Ashley Glen Road. The Blanco II final order determines that Wetland B12 is a "low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species." (Recommended Order, paragraph 11.) The Ashley Glen developer originally intended to create on its property an 18-acre littoral shelf to mitigate wetland losses, including the loss of Wetland B12. However, the sale of the Ashley Glen parcel and adoption of a new development plan have delayed the creation of the littoral shelf. Applicant has thus proposed new mitigation in the form of a mitigation bank credit for the impact to Wetland B12. By this means, Applicant seeks permission to fill the wetland and proceed with development without waiting for the new Ashley Glen developer to create the mitigation for Wetland B12. Although the already-permitted loss of Wetland B12 is not an issue in this case, the mitigation for its loss is an issue. Because Applicant is proposing new mitigation for the loss of Wetland B12, it is necessary to determine whether Applicant, using the methodology adopted by District, has provided reasonable assurance that the functional gain from the proposed mitigation for Wetland B12 offsets the functional loss from its filling. The other wetland on the subject parcel is Wetland C12, which is a nine-acre contiguous wetland. The final order resulting from Blanco II authorizes no impact to Wetland C12, so its loss and the mitigation for the loss are issues in this case. The subject application proposes no impact to 4.5 acres of Wetland C12, permanent loss of 3.1 acres, and temporary loss of 1.4 acres (due to the realignment of part of the ditch, which is within Wetland C12). The part of Wetland C12 proposed to be destroyed is its southernmost one-third, which lies in the southern half of the subject parcel, immediately west of the west bank of the realigned ditch. Wetland C12 forms part of the conveyance, from south to north, of water from the Hogan wetland to the railroad grade at the northern boundary of the Ashley Glen parcel. Stormwater then accumulates against the railroad grade, runs west along the grade, backs up to contribute hydration to the large forested wetland at the northwest corner of the Ashley Glen parcel and the north half of Petitioner's parcel, and passes under the railroad grade by way of three culverts near the northwest corner of the Ashley Glen parcel. Wetland C12 has been disturbed by agricultural activities, mostly by the formation of the ditch. There is some testimony concerning a stream at this location, but the record does not support such a characterization. Based on the present record, prior to any disturbance, it is equally possible that water was conveyed by a stream, a slough, or sheetflow. For these reasons, the record does not permit a finding that the ditch is a restorable stream. Wetland C12 has little buffer from surrounding land cover and agricultural uses. According to Petitioner's testimony, which is credited, the dredging (or re-dredging) 50 years ago was the work of a nearby landowner who owned a dragline and used it to alleviate flooding near the Hogan wetland, presumably by deepening and widening the ditch. The hydrology of Wetland C12 has been altered, so that nuisance exotics and upland species are present at locations within the wetland, presumably including the portions of the banks hosting large spoil piles from past dredging. No listed species use Wetland C12, and its potential as habitat corridor is limited due to the extensive residential development that has taken place immediately to the west of Wetland C12, the extensive residential and commercial development taking place to the east of Wetland C12, and the barriers posed by the Suncoast Parkway and 280-foot right-of-way of State Road 54. Applicant has presented to District a plan to construct nine freestanding buildings with surface parking on the subject parcel. The plan is to construct, from north to south on the west side of Ashley Glen Road, a retail space of 5000 square feet and 75 parking spaces on 1.17 acres, a strip of nine retail spaces of 10,500 square feet and 61 parking spaces on 2.02 acres, a fast-food restaurant of 3800 square feet and 40 parking spaces on 1.02 acres, a convenience/retail store of 6000 square feet and 44 parking spaces on 1.66 acres, a fast-food restaurant of 3000 square feet and 44 parking spaces on 1.22 acres, and a bank of 4300 square feet and 38 parking spaces on 0.95 acres. On the east side of Ashley Glen Road, the plan is to construct, from south to north, a restaurant of 4700 square feet and 67 parking spaces on 1.19 acres, a bank of 4120 square feet and 43 parking spaces on 1.16 acres, and a supermarket complex. The supermarket complex comprises a supermarket, an attached strip identified as "Retail B," a restaurant abutting Retail B, an attached strip identified as "Retail C," and a restaurant abutting Retail C. The supermarket building is 237 feet by 205 feet and houses a 46,755 square-foot grocery store, and 1876 square-foot liquor store, and 1125 square-foot vestibule; the supermarket building is served by 243 spaces. Retail B comprises six retail spaces of 6500 square feet and 33 parking spaces; the restaurant is 3000 square feet and is allocated 34 parking spaces. Retail C comprises four retail spaces of 5600 square feet and 28 spaces; the restaurant is 3600 square feet and is allocated 40 parking spaces. The previously described bank and restaurant on the east side of Ashley Glen Road front State Road 54. Behind the drive-through lanes of the bank and parking of the restaurant are nearly all of the parking allocated to the supermarket complex. The supermarket faces State Road 54, although it is about 500 feet from the road and is located in the middle of the eastern half of the subject parcel. The liquor store is incorporated into the southwest corner of the supermarket building, which has a truck dock at the northwest corner. Running in a north-south direction, Retail B runs along the entire west side of the supermarket building. A strip of 40 parking spaces separates Retail B from Ashley Glen Road. Retail C is oriented perpendicular to Retail B and extends, in an east-west direction, off the southeast corner of the supermarket building. Wetland C12 would be occupied by the footprint of the eastern half to two-thirds of the supermarket building, half of the parking in front of the supermarket, half of Retail Strip C, and almost half of the restaurant fronting State Road 54 on the east side of Ashley Glen Road. In terms of area, the footprint of the supermarket and parking occupies about two-thirds of the 3.1 acres of Wetland C12 proposed to be permanently lost. Several components make up the proposed surface water management system, in addition to the rooftops and paving described above. Applicant proposes to realign a portion of the ditch running within Wetland C12, so that the southern half of the ditch will run on the extreme eastern edge of the subject parcel. For a short distance, two-thirds of the width of the proposed ditch is located off the subject parcel and on the parcel owned by DOT to the east. Applicant proposes to triple the width of the ditch to 60 feet and deepen it so that its bottom would be 20 feet wide. Applicant proposes impervious surface for the vast majority of the entire southern two-thirds of the parcel. A stormwater collector system would collect water and convey it north under Ashley Glen Road to the northwest corner of the subject parcel. The water would enter a 3.92-acre pond to be excavated at a depth to hold stormwater for 14 days from the design storm event, which is a 100-year, five-day storm. During this period, contaminants would be removed by evaporation, settlement, and skimming. A littoral shelf abutting the pond on the west will also permit the vegetative uptake of contaminants. Applicant has incorporated wet detention using the conservation design method, a design approved by District for improved stormwater treatment when compared to other wet-detention treatment designs. From the littoral shelf, stormwater will pass through an outflow structure and enter Mitigation Area B, which will be a created 1.4-acre cypress wetland at the very northwest corner of the subject parcel. Applicant will apply wetland topsoil from the dredged portions of Wetland C12 to Mitigation Area B to encourage the growth of wetland species. Stormwater will sheetflow through Mitigation Area B, which will enhance water quality treatment. Although District calculates mitigation credit for an area only up to the seasonal high water line, Applicant proposes, not merely to sod the slope ending at the seasonal high water line, as is the common practice, but instead to plant this area with native species, such as pines, palmettos, and wax myrtles. From Mitigation Area B, stormwater flows, by way of a culvert under Ashley Glen Road, to Mitigation Area A, which will be a created 2.5-acre cypress wetland directly across Ashley Glen Road from Mitigation Area A. Applicant will apply wetland topsoil to Mitigation Area A and plant native species on the upland slopes of the created wetland, which will also treat sheetflow prior to its passing east into the adjacent, undisturbed portion of Wetland C12. The vice-president of the managing partner of Applicant testified in the case. He has 20 years' experience in commercial construction sales and retail development. He has developed seven shopping centers anchored by a grocery store (Anchored Centers) and six shopping centers without a grocery- store anchor (Unanchored Centers). The corporate managing partner has developed 43 Anchored Centers and is developing five more. The site-selection process requires analysis of land costs, construction costs, prevailing market rents, outparcel values, zoning, title, environmental issues, and geotechnical issues. Analysis of the locational factors are especially important. These include traffic, residential development, and demographics. The intersection of the Suncoast Parkway and State Road 54 is ideal for the development of an Anchored Center. In the past seven years, 10,000 residential units have been developed in the State Road 54 corridor between State Road 41 and the Suncoast Parkway. The southeast quadrant of this intersection is being developed with mixed uses, including office and retail. A large parcel immediately east of the DOT parcel and Ashley Glen parcel is being developed with commercial uses. The southwest quadrant is being developed with a Super Target. Older residential areas exist to the east and southeast of the subject parcel. Applicant entered a contract to purchase the subject parcel in August 2002 and closed on the purchase in November 2003. It has a contract with Sweetbay Supermarket for the grocery store. The appeal of the Anchored Center is in the synergy between the anchor--the supermarket--and the outparcels. The proposed Anchored Center would be a one-stop destination for the consumer seeking the goods and services associated with a supermarket, bank, restaurant, and allied retail and may thus shorten or reduce the number of motor-vehicle trips. Raw land in the vicinity of the intersection of the Suncoast Parkway and State Road 54 has been appreciating at a monthly rate of about three percent during the past four or five years. Parcels in Anchored Centers command a considerable premium over similar parcels in Unanchored Centers, and substantially different business risks attach to each kind of development. One of the differences between the Anchored Center and Unanchored Center is the former's requirement of additional parking. Given this requirement, there was no design modification that would accommodate a shopping center and parking without destroying wetlands. Although Sweetbay Supermarket has a template for a smaller building than the one proposed on the subject site, the smaller building is typically reserved for urban settings, and nothing in the record suggests that even the smaller building, with surface parking, would spare the wetlands completely. In its site-planning exercises, Applicant tried to reduce wetland impacts by moving the supermarket to different locations on the subject parcel. The supermarket will not fit on the west side of Ashley Glen Road. On the east side, Applicant moved it as far west as it could to avoid as much wetland impact as possible given the location of the supermarket at the midpoint of the east side of the subject parcel. The present location represents the best accommodation of the Wetland C12 and the commercial development, at its proposed intensity, that Applicant could find after 8-10 reconfigurations of the site improvements. Given the shape of the subject parcel and Wetland C12, the proposed midpoint location impacts Wetland C12 less than any other location, except right at the northeast corner of the intersection of Ashley Glen Road and State Road 54. However, obvious marketing problems arise with this location. Sweetbay Supermarket understandably desires the supermarket to face State Road 54 to attract business. If the supermarket were located at the northeast corner of these two roads, there would be no parking in the front, requiring the customers to enter from the back, or the back of the supermarket would face State Road 54. In designing the site, Applicant reduced some retail space and associated parking to reduce wetland impacts. At the present midpoint location, the elimination of Retail B and Retail C would permit Applicant to move the building to the west, but this would only slightly reduce the wetland impacts because substantial wetland impacts would occur to the south under the footprint of the parking. Similarly, a parking garage would permit Applicant to avoid those substantial wetland impacts, but not the smaller, but still significant, area of wetland impacts under the footprint of the east side of the supermarket building and Retail C. Of course, Applicant could combine these two modifications--elimination of Retail B and Retail C with the relocation of the supermarket building to the west and the construction of an elevated parking garage on the western half of the proposed footprint of the parking area in front of the supermarket building. Applicant contends that these modifications are not economically practicable. Undoubtedly, parking garages are not typically associated with nonurban development. The vice-president of the managing partner admitted that he had not priced such structures, but estimated that each space in a parking deck would cost 10 times more than each space at grade. With somewhat more authority, he also testified that the loss of any more retail space would leave the development economically unfeasible. Sweetbay Supermarket's declared and presumed preferences also play a role in evaluating this substantial design modification. Sweetbay Supermarket prefers retail on both sides of the supermarket, and, given its need for visibility from State Road 54, it may be presumed not to favor the presence of a multi-story parking garage between its grocery store and State Road 54. Again, placing the parking garage behind the supermarket would gain visibility, but raise the prospect of the back of the supermarket facing State Road 54 or the customers entering the store from the back. These are all plainly unacceptable prospects, without regard to Applicant's notions of economic feasibility or return on investment. Similar considerations apply to the possible realignments of the ditch. In its present alignment, the ditch would be occupied by the footprint of the west half of Retail C, the northeast corner of the supermarket building, as well as parking and paved roadway associated with the supermarket and the restaurant fronting State Road 54 on the east side of Ashley Glen Road. Because the ditch does not extend nearly as far to the west as does Wetland C12, it would be possible to preserve the present ditch by eliminating Retail B and Retail C and shifting the supermarket building to the west with the "extra" parking gained by the elimination of the two retail strips probably offsetting the lost parking in front of the supermarket. But this is a lot to ask to preserve a conveyance that, on this record, does not rise above the homely level of a ditch with its attendant functional limitations, especially when the new ditch will probably relieve existing flooding around the Hogan wetland. Applicant's ecologist applied the Uniform Mitigation Assessment Method (UMAM) to assess Wetlands B12 and C12 and the mitigation areas. UMAM and its applicability to this case are discussed in the Conclusions of Law. Generally, UMAM provides a methodology to determine the functional loss of permanent and temporary wetland impacts and the functional gain of mitigation and ensure that the latter equal or exceed the former. For Wetland B12, Applicant's ecologist determined that its functional value, based on location and landscape support, was 5 out of 10 points due to the isolated nature of the wetland in a pasture, adjacent to a tree farm and absent any buffer. Invasives and exotics are in the adjacent community. Based on water environment, the ecologist scored Wetland B12 with 7 out of 10 points due to the presence of distinct water indicators, although the wetland appears to be dependent on rainfall and had suffered degradation from cattle. Based on community structure, the ecologist scored Wetland B12 with 6 out of 10 points due to its normal appearance for a cypress dome, but evident lack of natural recruitment, presence of nuisance exotics such as primrose willow and Brazilian pepper, and severe degradation from cattle and other agricultural uses. The ecologist's assessment of the permanent impact to 3.1 acres of Wetland C12 and temporary impact to 1.4 acres of the ditch within Wetland C12 followed the same approach, except that the temporary impact to the ditch required an additional step in the process. Applicant's ecologist scored the impacted area of Wetland C12, including the 1.4-acre ditch, with an average functional value of 6.67, based on scores of 7 for location and landscape support, 6 for water environment, and 7 for community structure. The location and landscape support are adversely impacted by the reduced complexity of surrounding uplands, but facilitated by the undeveloped state of the immediate vicinity that would allow use by small- to medium- sized wildlife. The ecologist noted the hydrological connection served by the ditch/wetland network and the narrow riparian corridor provided by this arrangement. The function of the water environment is heightened by the fact that most of the water environment is intact, but suffers from adverse impacts to the hydrology and water quality from the construction of the ditch and conversion of surrounding land cover to pasture and roadway. The community structure is facilitated by the presence of canopy vegetation of cypress, pop ash, and laurel oak, but adversely impacted by the presence of Brazilian pepper in the subcanopy. The additional step required in the analysis of the temporary impacts to 1.4 acres is the projected functional value of the relocated ditch. As compared to the present ditch, the re-created ditch scored one less point in location and landscape support due to the further reduction in adjacent uplands and resulting inhibition on use by medium-size wildlife that currently use the site, one less point in water environment due to some changes in microclimate, nutrient assimilation, and flow characteristics that may adversely affect current wildlife composition, and four fewer points in community structure due to removal of the canopy, subcanopy, and groundcover with the associated seed banks and vegetative growth that could recruit similar species to match existing composition and structure. Based on the foregoing, the ecologist concluded that the permanent functional loss to Wetland B12 was 0.35 units, the permanent functional loss to the 3.1 acres of Wetland C12 was 2.07 units, and the temporary functional loss to the 1.4 acres of Wetland C12/the ditch was 0.28 units, resulting in permanent functional losses of 2.42 units and temporary functional losses of 0.28 units, for a total functional loss of 2.70 units. For onsite mitigation of these functional losses, Applicant proposes Mitigation Areas A and B. Mitigation Area B, which is the 1.4-acre forested wetland to be created on the west side of Ashley Glen Road, received a score of zero in its present undeveloped state, and scores of 4 for location and landscape support, 7 for water environment, and 6 for community structure after it is created. The relatively low score for location and landscape recognizes the limited connectivity (through culverts) to other existing and proposed wetlands, although the lack of barriers for use by birds and aquatic species is a functional advantage. The relatively high score for water environment reflects the hydrological interdependence of Mitigation Area B with the stormwater collection system and created wetlands and the relative reliability of these sources of hydration. The score for community structure reflects the increases in microtopography resulting from the design of high and low wetland areas and the planting of species to create three vegetative strata within the created wetland. The ecologist assigned a time lag factor of 2.73 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(1)(d), this time lag factor correlates to a time lag of 36-40 years to establish the mitigative functions for which the mitigation site is given credit. The ecologist assigned a risk factor of 2 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(2), this risk factor correlates to a moderate risk of failure of attaining the functions predicted for the mitigation site. Applying the risk and time lag factors to Mitigation Area B, the ecologist calculated a functional gain of 0.15 units for this 1.4-acre mitigation site. The ecologist used the same methodology for Mitigation Area A, which is the 2.5-acre created wetland across Ashley Glen Road from Mitigation Area B. The ecologist assigned this created wetland a 6 for location and landscape support, a 7 for water environment, and a 7 for community structure. This wetland scored 2 points higher than Mitigation Area B for location and landscape support because it is not isolated by the road and culverts from the unimpacted area of Wetland C12 and offers more upland buffer for small wetland-dependent species. Mitigation Area A scored 1 point higher for community structure due to the likelihood of natural recruitment of seeds from the adjacent unimpacted wetland. For water environment, Mitigation Area A and Mitigation Area B received the same score due to their common characteristics. The ecologist applied the same time lag factor to Mitigation Area A as he did to Mitigation Area B. However, the risk factor was one increment less than moderate, probably due to the hydrological advantages that Mitigation Area A enjoys over Mitigation B due to its pre-existing hydric soils and proximity to the unimpacted wetlands of Wetland C12. Applying the risk and time lag factors to Mitigation Area A, the ecologist calculated a functional gain of 0.35 units for this 2.5-acre site. Applicant's ecologist then calculated the functional gain from the enhancement of the 1.4-acre Wetland C12/ditch. He found an increase of 0.13, as compared to the current value, based on a relatively strong score for the enhanced location and landscape support, average score for the enhanced water environment, and relatively weak score for the enhanced community structure. The enhanced system enjoys functional advantages from the planting of three strata of vegetation along the ditch and emergents in the channel. The ecologist applied a time lag factor of 2.18 (meaning 26-30 years) and a moderate risk factor of 2.0 to obtain a final score of 0.03 acres for this enhancement mitigation. The functional gains and losses for the onsite wetland impacts and mitigation, as determined by Applicant's ecologist, are supported by the record, and his analysis of these losses and gains from the onsite creation and enhancement mitigation is accurate. Next, Applicant purchased a conservation easement as offsite mitigation. This easement is on what is known as the Marr Parcel. The Marr Parcel is a 67.49-acre parcel that sits almost in the middle of a large publicly owned area that runs nearly 30 miles along the coast, from Weeki Wachee to the south to Crystal River to the north. Situated in the north-central part of this large area is the District-owned Chassahowitzka River and Coastal Swamps tract (Chassahowitzka Tract). The Marr Parcel is at the southern end of the Chassahowitzka Tract, about four miles from the Gulf of Mexico. The Marr Parcel is about 33 miles from the subject parcel. The Marr Parcel is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. At the end of Zebra Finch Road, the Marr Parcel is surrounded by pristine forested wetland habitat that forms part of an important travel corridor for numerous species, including the Florida black bear. This is a sustainable population of Florida black bears, so this habitat is of critical importance. The forested habitat is a combination of cypress and mixed hardwoods. The larger publicly owned area enveloping the Marr Parcel includes almost every significant habitat present in Florida. Other parcels preserved by similar means are directly north of the Marr Parcel. Applicant's ecologist raised the Marr Parcel's score by 1 point for location and landscape support and 1 point for community structure, as a result of the purchase of the conservation easement. The parcel's score for water environment was unchanged by the purchase of the conservation easement. Taking the modest gain from the purchase of the conservation easement, the ecologist applied the preservation adjustment factor of 0.60 to reduce this gain further and then applied a time lag factor of 1.0, indicative of a time lag of one year or less, and a risk factor of 1.25, indicative of the smallest incremental risk above no risk, to determine a functional gain of 2.16 units for the preservation mitigation involving the Marr Parcel. Petitioner contends that development of the Marr Parcel was unlikely, even without the conservation easement purchased by Applicant. Without detailed analysis of site characteristics and regulatory controls applicable to the Marr Parcel, it is impossible to evaluate this contention, except to note that the ecologist took very little credit for the transaction. The smallest credit is one point in all three categories; the ecologist took two points. The functional gain for this preservation mitigation, as determined by Applicant's ecologist, is supported by the record, and his analysis of this gain from the offsite preservation mitigation is accurate, provided District clarifies the ERP, which describes the Marr Parcel in detail, to require that Applicant purchase the conservation easement in the Marr Parcel as part of the required mitigation. Lastly, Applicant turned to the Upper Coastal Mitigation Bank (UCMB) to purchase 0.4 acres of forested- wetlands credit. This mitigation bank, which is administered by Earth Balance, pertains to property (UCMB Tract) that is just north of the Chassahowitzka Tract, immediately south of Homosassa Springs. A few months prior to the hearing, District permitted the UCMB for 47.64 functional gain units, for the purpose of providing mitigation bank credits to ERP applicants. District has approved UCMB for freshwater forested wetlands credits, among other types of credits. The UCMB Tract is about seven miles north of the Marr Parcel and, thus, about 40 miles north of the subject parcel. The UCMB Tract is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. Based on the foregoing, Applicant realized a functional gain of 0.52 units from the onsite creation and enhancement mitigation, 2.16 units from the offsite preservation mitigation from the Marr Parcel, and 0.40 units from the purchase of units from UCMB, for a total functional gain of 3.09 units. Pursuant to UMAM, the 2.70 functional loss units are exceeded by the 3.09 functional gain units, so Applicant has provided adequate mitigation. Applicant provided reasonable assurance that the proposed activity will not cause adverse impacts to the storage and conveyance capacity of surface waters. As noted above, Applicant proposes to expand the conveyance capacity of the ditch by substantially widening and deepening it, which will probably alleviate some of the longstanding flooding around the Hogan wetland. With respect to Petitioner's parcel, Applicant will place a liner on the west side of the pond, so as to prevent adverse impacts to Petitioner's parcel from base flow. Applicant will add a swale along the west side of the subject parcel to prevent adverse impacts to Petitioner's parcel from stormwater flow. The engineer's analysis in particular does not reveal flooding at the northwest corner of the Ashley Glen parcel, from where Petitioner's wetlands draw hydration. No testimony revealed whether Applicant's engineer performed pre- and post-development analysis of flows at the point at which the re-created ditch leaves the subject parcel at the DOT floodplain-mitigation site. Nothing in the record suggests that the proposed activities will cause flooding of this site, and DOT will likely perform its own analysis prior to granting Applicant a sufficient interest to dredge part of the realigned, enlarged ditch on DOT property. The proposed activities will fill 8.48 acre-feet of floodplain, but mitigate this loss with 10.02 acre-feet of excavation. Considered with the increased capacity of the drainage ditch, Applicant proposes to increase flood storage. Applicant has provided reasonable assurance that the proposed activities will not adversely impact water quality. The water-treatment components of the proposed surface water management system have been described above. Applicant provided reasonable assurance that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Some minor loss of use by small- and medium-size wildlife may be expected from the loss of 3.1 acres of Wetland C12, but the presence of State Road 54 and imminent development of the Ashley Glen parcel mean that Wetland C12 can provide no meaningful travel corridor. Degraded adjacent uplands further reduce the value of Wetland C12 as habitat for such wildlife. The created pond will provide habitat for certain birds, and the offsite mitigation will provide functional gain in terms of wildlife habitat. Changes in fish habitat from the relocation of part of the ditch and dredging of the ditch are also negligible, based on limited utilization of the present ditch and enhanced utilization potential of the new ditch in terms of a more suitable bank, which will be protected from erosion by matting, and the addition of appropriate vegetation, including emergents in the channel. For the reasons set forth above, Applicant has provided reasonable assurance that the proposed activities will not cause adverse secondary impacts to the water resources. Although the post-development wetlands are unbuffered, the secondary impacts of construction are addressed by the usual construction devices of turbidity curtains and hay bales, and the secondary impacts of the ultimate use of the Anchored Center are adequately addressed by the by the subject surface water management system, especially with respect to water quality treatment. District's senior environmental scientist disclaimed the existence of post-development secondary impacts, evidently reasoning that Wetlands B12 and C12 had already been impacted. As discussed in the Conclusions of Law, the secondary impacts are the activities closely linked to the construction of the project. In this case, the project is the surface water management system to serve the development of the Anchored Center, and the obvious secondary impact is motor vehicle traffic on the subject parcel. However, the water-quality analysis addresses this secondary impact. Subject to one exception, Applicant has provided reasonable assurance that the proposed surface water management system will perform effectively and will function as proposed and that an entity with the requisite financial, legal, and administrative capabilities will conduct the proposed activities. The exception is that District may not issue the ERP until Applicant obtains from DOT a legal instrument, in recordable form, granting Applicant and its assigns all rights necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT floodplain mitigation parcel. Based on the Conclusions of Law, which necessitate the acceptance of the basin depictions in BOR Appendix 6, Applicant has provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts upon wetlands and other surface waters. However, if the subject parcel were in the basin to the south of the large coastal basin, Applicant has not provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts because it has not undertaken any cumulative-impact analysis. Based on the foregoing and subject to the two conditions stated above, Applicant has provided reasonable assurance that the proposed activities in, on, or over wetlands or other surface waters are not contrary to the public interest.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District issue to Win-Suncoast, Ltd., the environmental resource permit, subject to the two conditions identified above. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2008.
The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of April, 2001.
The Issue The issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.
Findings Of Fact The Parties and Proposed Project Respondent, 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 the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.) Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This clearing and excavation was accomplished in the 1980’s for a project that was never completed. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood site and continues to flow south through ditches and culverts ultimately to the San Sebastian River. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1. Project Description As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development). The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. Wetland Impacts Onsite Wetlands Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians. The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would be conducive to use by woodstorks, birds and small mammals do not forage there. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland 4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland). A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland would not provide a significant food source for wading birds such as woodstorks. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots. Offsite Wetlands The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands. The seasonal high water (SHW) table in the area of DA- 1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater. The seasonal high water table in the area of DA-2 is 28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of 0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected. Reduction and Elimination of Impacts The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1. The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First, Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a. Secondary Impacts The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14). Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP. Proposed Mitigation The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant 72 trees, and monitor annually for 5 years to document success. Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP- A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case. See Finding 44, supra. The cost of the proposed mitigation will be approximately $15,000. Operation and Maintenance A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules. Water Quantity To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the site using today’s conditions as pre-project conditions. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square miles or more. The project is impounding water only for temporary storage purposes. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer. Tailwater Elevations First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation. Watershed Criticism The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem." Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post- development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive. Time of Concentration Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post- development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis. Groundwater Infiltration in DA-2 One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of 200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time. Water Quality Criteria Presumptive Water Quality The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of 31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6, #10). ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness. Those issues already have been addressed. See Findings 77-78, supra. Groundwater Contamination Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1. St. Johns County operated a landfill from the mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located. Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See § 403.852(12) and (13), Fla. Stat. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63 semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted. J. Fish and Wildlife Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented, Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his 29 years of experience with the USFWS in bald eagle and human interactions. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively. K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k) 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000 so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.) 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria. Public Interest Test in 40C-4.302 The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See Findings 61-67, supra. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site. Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest. Other 40C-4.302 Criteria The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact. The project is not located in or near Class II waters. The project does not contain seawalls and is not located in an estuary or lagoon. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004.
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
Findings Of Fact The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings; (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at 26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek; (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which evidence from the parties as well as public testimony was received. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of 9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the 96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods. Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park. Vanderipe Slough encompasses an area of approximately 500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately 2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689). DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 31 day of July, 1986. APPENDIX Rulings on Individual Petitioners' Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 30. Rejected since it is not based on competent substantial evidence. Adopted in Finding of Fact 22. Rejected since it is not based on competent substantial evidence. Rejected as irrelevant. Adopted in Finding of Fact 23. 8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Findings of Fact 18, 24, 25. Adopted in Finding of Fact 34. Adopted in Finding of Fact 27. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14. 20 Rejected since it is not based on competent substantial evidence. Rulings on Myakka's Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 3, 4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 1, 7. Adopted in Finding of Fact 7. 10-13 Adopted in Finding of Fact 19. 14-15 Rejected since they are not based on competent substantial evidence. Adopted in Finding of Fact 19. Adopted in Finding of Fact 7. 18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1. 23,24 Rejected as irrelevant and unnecessary. 25 Adopted in Finding of Fact 1. 26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33. 32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9. 37,38 Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. 51-56 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 27. Adopted in Finding of Fact 24. Rejected in Finding of Fact 2r 3. Rejected since it is not based on competent substantial evidence. 62,63 Rejected as irrelevant and unnecessary. 64 Adopted in part and rejected in part in Finding of Fact 17. 65,66 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Rejected as cumulative. Rejected as irrelevant and unnecessary. 74,75 Adopted in Finding of Fact 13. Rejected in Finding of Fact 26. Adopted in Finding of Fact 13. 78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 81 Adopted in Findings of Fact 11, 12. 82,83 Rejected as irrelevant and unnecessary. 84 Adopted in Finding of Fact-21. 85-87 Adopted in Finding of Fact 11. 88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative. 92-95 Adopted in Finding of Fact 17. 96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary. 98-99 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. 103-106 Adopted in Finding of Fact 27. Adopted in Finding of Fact 6. Adopted in Finding of Fact 27. 109,110 Rejected as irrelevant and not based on competent substantial evidence. 111 Adopted in part in Finding of Fact 17. 112-120 Adopted in Finding of Fact 27. 121-126 Rejected as unnecessary and cumulative. 127 Adopted in Finding of Fact 27. 128-130 Rejected as unnecessary. 131-168 Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 24. 172-174 Adopted in Finding of Fact 27. 176-179 Rejected as irrelevant, unnecessary, and cumulative. 180 Adopted in Finding of Fact 18. 181-184 Rejected as irrelevant, unnecessary, and cumulative. Rejected as unnecessary. Rejected in Finding of Fact 20. 187,188 Adopted in Finding of Fact 20. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. 192,193 Adopted in Finding of Fact 27. 194 Adopted in Finding of Fact 25. 195-198 Adopted in Finding of Fact 20. 199,200 Rejected as irrelevant and unnecessary. 201 Adopted in Finding of Fact 9. 202,203 Adopted in Finding of Fact 30. 204-206 Adopted in Finding of Fact 21. 207 Rejected as cumulative and unnecessary. 208-211 Adopted in Findings of Fact 21, 22, 27. 212,213 Adopted in Finding of Fact 23. 214 Rejected as irrelevant and cumulative. 215-218 Adopted in Findings of Fact 21. 22, 27. 219-223 Adopted in part in Finding of Fact 27, but otherwise rejected as unnecessary, cumulative and otherwise not based on competent substantial evidence. 224,225 Rejected as irrelevant and unnecessary. 226,227 Adopted in Finding of Fact 34. 228 Rejected as not based on competent substantial evidence. 229,230 Rejected as cumulative. 231-233 Rejected as not based on competent substantial evidence. 234,235 Adopted in Finding of Fact 28. 236 Adopted in Finding of Fact 30. 237-243 Adopted in part in Finding of Fact 28-30, but otherwise rejected as cumulative and not based on competent substantial evidence. 244-246 Rejected as cumulative and otherwise not based on competent substantial evidence. 247,248 Adopted in Finding of Fact 31. 249-259 Adopted in Findings of Fact 2-5, 32. 260-262 Adopted in Finding of Fact 32. 263 Adopted in Finding of Fact 29. 264 Adopted in Finding of Fact 32. 265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32. Adopted in Finding of Fact 25. Adopted in Finding of Fact 29. Adopted in Findings of Fact 25. 29, 32. Adopted in Finding of Fact 19. Adopted in Findings of Fact 19, 29. Adopted in Finding of Fact 29. 276,277 Adopted in Finding of Fact 25. Adopted in Finding of Fact 22. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 25. 281-283 Rejected as irrelevant and unnecessary. 284 Adopted in Finding of Fact 29. 285 Adopted in Findings of Fact 29, 32. 286 Adopted in Findings of Fact 19. 32. 287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence. 289-296 Rejected as irrelevant and unnecessary. Rulings on City's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 33. 5 Rejected as irrelevant and unnecessary. 6-11 Adopted in Finding of Fact 1. 12-14 Adopted in Finding of Fact 6. 15 Rejected as irrelevant. 16 Adopted in Finding of Fact 7. 17 Rejected as irrelevant. 18 Adopted in Findings of Fact 27, 33. 19-21 Adopted in Finding of Fact 27. 22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27. 31 Rejected as not based on competent substantial evidence. 32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6. 36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence. 45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary. 56-58 Adopted in Finding of Fact 8. 59 Rejected as irrelevant and unnecessary. 60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary. 65 Adopted in Finding of Fact 11. 66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence. 70-84 Adopted in Finding of Fact 13. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 13. 87-92 Adopted in Finding of Fact 27. Rejected as unclear. Adopted in Finding of Fact 27. 95-100 Adopted in Finding of Fact 14. 101 Rejected in Finding of Fact 14. 102-104 Adopted in Finding of Fact 14. Rejected as irrelevant. Adopted in Finding of Fact 15. Adopted in Finding of Fact 13. Adopted in Finding of Fact-16. Adopted in part and rejected in part in Finding of Fact 27. 110,111 Rejected in Finding of Fact 27. 112 Rejected as irrelevant. 113-118 Rejected in Finding of Fact 27. 119,120 Adopted substantially in Finding of Fact 11. Adopted in Finding of Fact 16. Adopted in Finding of Fact 2. Adopted in Finding of Fact 17. 124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant. 126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary. 131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary. 136-140 Rejected in Finding of Fact 17. Rejected in Findings of Fact 11, 17. Adopted in Finding of Fact 16. 143-148 Rejected in Finding of Fact 27 and otherwise unnecessary. 149 Adopted in Finding of Fact 27. 150,151 Rejected in Finding of Fact 27. Adopted in Findings of Fact 17, 18. Adopted in Finding of Fact 17. Adopted in part and rejected in part in Finding of Fact 18. 155,156 Rejected in Finding of Fact 17. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 13, 14. Rejected as irrelevant. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 26. Rejected as unnecessary and cumulative. 163-165 Rejected as not based on competent substantial evidence. 166-169 Adopted in Finding of Fact 20. 170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted in part and rejected in part in Finding of Fact 20. Adopted in Finding of Fact 23. Adopted in Finding of Fact 9. Rejected in Finding of Fact 27. 178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence. 189,190 Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 20. 193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence. 196 Adopted in Finding of Fact 9. 197-199 Adopted in Finding of Fact 21. 200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary. 207,208 Adopted in part in Finding of Fact 21. 209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 21. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 9. Rejected as cumulative and unnecessary. 222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary. 225 Rejected as unnecessary and not based on competent substantial evidence. 226 evidence. Rejected as not based on competent substantial 227,228 Rejected as irrelevant. 229-232 Adopted in Finding of Fact 3. 233 Rejected as irrelevant. 234,235 evidence. Rejected as not based on competent substantial 236 Adopted in Finding of Fact 3. 237,238 Adopted in Finding of Fact 5. 239 Adopted in Finding of Fact 3. 240-243 Rejected as irrelevant. 244-246 Adopted in Finding of Fact 31. 247-250 Adopted in Finding of Fact 4. 251 evidence. Rejected as not based on competent substantial 252,253 Adopted in Finding of Fact 5. 254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence. 256,257 Adopted in Finding of Fact 31. 258-260 Adopted in Finding of Fact 2. 261 Rejected as irrelevant. 262 Adopted in Finding of Fact 2. 263 Adopted in Finding of Fact 5. 264 Adopted in Findings of Fact 2, 11. 265-267 Rejected as irrelevant. 268 Adopted in Finding of Fact 5. 269-272 Rejected as irrelevant and unnecessary. 273,274 Adopted in Finding of Fact 31. 275-278 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 279-284 Rejected in Finding of Fact 32. Rulings on the Department's Proposed Findings of Fact. 1 Adopted in Finding of Fact 5. 2,3 Adopted in Findings of Fact 2. 3, 4. 4 Adopted in Finding of Fact 7. 5-8 Adopted in Finding of Fact 9. 9 Adopted in Finding of Fact 21. 10-12 Adopted in Finding of Fact 1. 13 Rejected as irrelevant and unnecessary. 14,15 Adopted in Finding of Fact 33. 16-23 Rejected as irrelevant and unnecessary. Rejected since this is a conclusion of law rather than a proposed finding of fact. Rejected as unclear. Adopted in Finding of Fact 14. 27-30 Adopted in Finding of Fact 13. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17. Rejected as speculative and not based on competent substantial evidence. Adopted in Finding of Fact 24. 35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11, 12. Rejected as unnecessary. Adopted in Finding of Fact 16. 47,48 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. 51,52 Adopted in Finding of Fact 17. 53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17. Rejected as unnecessary and cumulative. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. 63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. 76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22. Adopted in Finding of Fact 8. Rejected in Finding of Fact 8. Adopted in Finding of Fact 21._ Adopted in Finding of Fact 27. 87,88 Rejected as a conclusion of law rather than a proposed finding of fact. 89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary. 94 Adopted in part in Finding of Fact 21. 95,96 Adopted in part in Finding of Fact 22. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 21, 22. 99-103 Adopted in Finding of Fact 27. Adopted in Finding of Fact 22. Rejected as unclear. Adopted in Finding of Fact 22. 107,108 Adopted in Finding of Fact 27. 109 Adopted in Finding of Fact 22.. 110,111 Adopted in Finding of Fact 27. 112-114 Rejected as unnecessary and cumulative. 115-117 Adopted in Finding of Fact 11. 118 Rejected as cumulative. 119-121 Adopted in Finding of Fact 27. 122 Adopted in Finding of Fact 6. 123-136 Adopted in Finding of Fact 27. COPIES FURNISHED: Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Greg D. Sefton 5781 Old Ranch Road Sarasota, Florida 34241 Edward P. de la Parte, Jr. Attorney at Law 705 East Kennedy Boulevard Tampa, Florida 33602 Ralph A. Kehn Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241 Wyatt S. Bishop Route 1, Box 74-203 Sarasota, Florida 34241 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209 Sarasota, Florida 33577 Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241
Findings Of Fact Background Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project. Elimination of Natural Drainage The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER. Planned Roadway The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review. High Water Mark and the Setting of the DER Jurisdictional Line The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions. Fill Calculations The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements. De Novo Permit Review Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state. Balancing of Interests In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Area of Controversy All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur. Recommendation Regarding the Assessment of Attorneys Fees and Costs Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.
Recommendation Based upon the foregoing, it is recommended: That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose. RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035 Petitioners' proposed findings of fact are addressed as follows: Accepted. See HO #11. Rejected. Does not allow for change in seasons or conditions. See HO #11. Accepted. See HO #11. Accepted. See HO #15. Accepted. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding. Accepted. See HO #3. Respondent Telese's proposed findings of fact are addressed as follows: Accepted. See HO #1, #2 and #18. Accepted. See HO #1, #2, #20 and #23. Accepted. See HO #20 and #21. Accepted. See HO #21. Accepted. See HO #22 - #27. Accepted. See HO #13 and #16. Denied. Contrary to fact. See HO #4 - #17. DER's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1 and #2. 2. Accepted. See HO #1. 3. Accepted. See HO #1 - #3. 4. Accepted. See HO #2, #18 and #20. 5. Accepted. See HO #20, #21 and #24. 6. Accepted. 7. Accepted. 8. Accepted. 9. Accepted. 10. Accepted. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. 15. Accepted. 16. Accepted. 17. Accepted. See HO #19. 18. Accepted. 19. Accepted. See HO #19. 20. Accepted. See HO #21. 21. Accepted. See HO #18. COPIES FURNISHED: Ines D. Degnan 8410-144th Lane North Seminole, Florida 34636 David R. Chirington 8400-144th Lane North Seminole, Florida 34646 Alton Jeffcoat 8340-144th Lane North Seminole, Florida 34646 Carol B. Newton 8450-144th Lane North Seminole, Florida 34646 Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR RUPPEL & BURNS, P.A. 911 Chestnut Street Clearwater, Florida 34616 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issue to be determined is whether Consumptive Use Permit No. 2-083-91926-3, and Environmental Resource Permit No. IND-083-130588-4 should be issued as proposed in the respective proposed agency actions issued by the St. Johns River Water Management District.
Findings Of Fact The Parties Sierra Club, Inc., is a national organization, the mission of which is to explore, enjoy, and advocate for the environment. A substantial number of Sierra Club’s 28,000 Florida members utilize the Silver River, Silver Springs, the Ocklawaha River, and the St. Johns River for water-based recreational activities, which uses include kayaking, swimming, fishing, boating, canoeing, nature photography, and bird watching. St. Johns Riverkeeper, Inc., is one of 280 members of the worldwide Waterkeepers Alliance. Its mission is to protect, restore, and promote healthy waters of the St. Johns River, its tributaries, springs, and wetlands -- including Silver Springs, the Silver River, and the Ocklawaha River -- through citizen- based advocacy. A substantial number of St. Johns Riverkeeper’s more than 1,000 members use and enjoy the St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities. Karen Ahlers is a native of Putnam County, Florida, and lives approximately 15 miles from the Applicant’s property on which the permitted uses will be conducted. Ms. Ahlers currently uses the Ocklawaha River for canoeing, kayaking, and swimming, and enjoys birding and nature photography on and around the Silver River. Over the years, Ms. Ahlers has advocated for the restoration and protection of the Ocklawaha River, as an individual and as a past-president of the Putnam County Environmental Council. Jeri Baldwin lives on a parcel of property in the northeast corner of Marion County, approximately one mile from the Applicant’s property on which the permitted uses will be conducted. Ms. Baldwin, who was raised in the area, and whose family and she used the resources extensively in earlier years, currently uses the Ocklawaha River for boating. Florida Defenders of the Environment (FDE) is a Florida corporation, the mission of which is to conserve and protect and restore Florida's natural resources and to conduct environmental education projects. A substantial number of FDE’s 186 members, of which 29 reside in Marion County, Florida, use and enjoy Silver Springs, the Silver River, and the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, fishing, wildlife observation, and other water-based recreational activities. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the East Tract and the North Tract on which the activities authorized by the permits are proposed. St. Johns River Water Management District (SJRWMD or District) is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The Consumptive Use Permit The CUP is a modification and consolidation of two existing CUP permits, CUP No. 2-083-3011-7 and CUP No. 2-083- 91926-2, which authorize the withdrawal of 1.46 mgd from wells located on the East Tract. Although the existing CUP permits authorize an allocation of 1.46 mgd, actual use has historically been far less, and rarely exceeded 0.3 mgd. The proposed CUP modification will convert the authorized use of water from irrigation of 1,010 acres of sod grass on the East Tract, to supplemental irrigation of improved pasture for grass and other forage crops (approximately 97 percent of the proposed withdrawals) and cattle watering (approximately three percent of the proposed withdrawals) on the North Tract and the East Tract. An additional very small amount will be used in conjunction with the application of agricultural chemicals. CUP No. 2-083-3011-7 is due to expire in 2021. CUP No. 2-083-91926-2 is due to expire in 2024. In addition to the consolidation of the withdrawals into a single permit, the proposed agency action would extend the term of the consolidated permit to 20 years from issuance, with the submission of a compliance report due 10 years from issuance. Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production, based on the expected demand in a 2-in-10 drought year. That calculation is consistent with that established in CUP Applicant’s Handbook (CUP A.H.) section 12.5.1. The calculated amount exceeds the authorized average allocation of 1.46 mgd. Mr. Jenkins testified as to the District’s understanding that the requested amount would be sufficient, since the proposed use was a “scaleable-type project,” with adjustments to cattle numbers made as necessary to meet the availability of feed. Regardless of demand, the proposed permit establishes the enforceable withdrawal limits applicable to the property. With regard to the East Tract, the proposed agency action reduces the existing 1.46 mgd allocation for that tract to a maximum allocation of 0.464 mgd, and authorizes the irrigation of 611 acres of pasture grass using existing extraction wells and six existing pivots. With regard to the North Tract, the proposed agency action authorizes the irrigation of 1,620 acres of pasture and forage grain crops using 15 center pivot systems. Extraction wells to serve the North Tract pivots will be constructed on the North Tract. The proposed North Tract withdrawal wells are further from Silver Springs than the current withdrawal locations. The proposed CUP allows Sleepy Creek to apply the allocated water as it believes to be appropriate to the management of the cattle operation. Although the East Tract is limited to a maximum of 0.464 mgd, there is no limitation on the North Tract. Thus, Sleepy Creek could choose to apply all of the 1.46 mgd on the North Tract. For that reason, the analysis of impacts from the irrigation of the North Tract has generally been based on the full 1.46 mgd allocation being drawn from and applied to the North Tract. The Environmental Resource Permit As initially proposed, the CUP had no elements that would require issuance of an ERP. However, in order to control the potential for increased runoff and nutrient loading resulting from the irrigation of the pastures, Sleepy Creek proposes to construct a stormwater management system to capture runoff from the irrigated pastures, consisting of a series of vegetated upland buffers, retention berms and redistribution swales between the pastures and downgradient wetland features. Because the retention berm and swale system triggered the permitting thresholds in rule 62-330.020(2)(d) (“a total project area of more than one acre”) and rule 62-330.020(2)(e) (“a capability of impounding more than 40 acre-feet of water”), Sleepy Creek was required to obtain an Environmental Resource Permit for its construction. Regional Geologic Features To the west of the North Tract is a geologic feature known as the Ocala Uplift or Ocala Platform, in which the limestone that comprises the Floridan aquifer system exists at or very near the land surface. Karst features, including subterranean conduits and voids that can manifest at the land surface as sinkholes, are common in the Ocala Uplift due in large part to the lack of consolidated or confining material overlaying the limestone. Water falling on the surface of such areas tends to infiltrate rapidly through the soil into the Floridan aquifer, occasionally through direct connections such as sinkholes. The lack of confinement in the Ocala Uplift results in few if any surface-water features such as wetlands, creeks, and streams. As one moves east from the Ocala Uplift, a geologic feature known as the Cody Escarpment becomes more prominent. In the Cody Escarpment, the limestone becomes increasingly overlain by sands, shell, silt, clays, and other less permeable sediments of the Hawthorn Group. The North Tract and the East Tract lie to the east of the point at which the Cody Escarpment becomes apparent. As a result, water tends to flow overland to wetlands and other surface water features. The Property The North and East Tracts are located in northern Marion County near the community of Fort McCoy. East Tract Topography and Historic Use The East Tract is located in the Daisy Creek Basin, and includes the headwaters of a small creek that drains directly to the Ocklawaha River. The historic use of the East Tract has been as a cleared 1,010-acre sod farm. The production of sod included irrigation, fertilization, and pest control. Little change in the topography, use, and appearance of the property will be apparent as a result of the permits at issue, but for the addition of grazing cattle. The current CUPs that are subject to modification in this proceeding authorize groundwater withdrawals for irrigation of the East Tract at the rate of 1.46 mgd. Since the proposed agency action has the result of reducing the maximum withdrawal from wells on the East Tract to 0.464 mgd, thus proportionately reducing the proposed impacts, there was little evidence offered to counter Sleepy Creek’s prima facie case that reasonable assurance was provided that the proposed East Tract groundwater withdrawal allocation will meet applicable CUP standards. There are no stormwater management structures to be constructed on the East Tract. Therefore, the ERP permit discussed herein is not applicable to the East Tract. North Tract Topography and Historic Use The North Tract has a generally flat topography, with elevations ranging from 45 feet to 75 feet above sea level. The land elevation is highest at the center of the North Tract, with the land sloping towards the Ocklawaha River to the east, and to several large wet prairie systems to the west. Surface water features on the North Tract include isolated, prairie, and slough-type wetlands on approximately 28 percent of the North Tract, and a network of creeks, streams, and ditches, including the headwaters of Mill Creek, a contributing tributary of the Ocklawaha River. A seasonal high groundwater elevation on the North Tract is estimated at 6 to 14 inches below ground surface. The existence of defined creeks and surface water features supports a finding that the North Tract is underlain by a relatively impermeable confining layer that impedes the flow of water from the surface and the shallow surficial aquifer to the upper Floridan and lower Floridan aquifers. If there was no confining unit, water going onto the surface of the property, either in the form of rain or irrigation water, would percolate unimpeded to the lower aquifers. Areas in the Ocala Uplift to the west of the North Tract, where the confining layer is thinner and discontiguous, contain few streams or runoff features. Historically, the North Tract was used for timber production, with limited pasture and crop lands. At the time the 7,207-acre North Tract was purchased by Sleepy Creek, land use consisted of 4,061 acres of planted pine, 1,998 acres of wetlands, 750 acres of improved pasture, 286 acres of crops, 78 acres of non-forested uplands, 20 acres of native forest, 10 acres of open water, and 4 acres of roads and facilities. Prior to the submission of the CUP and ERP applications, much of the planted pine was harvested, and the land converted to improved pasture. Areas converted to improved pasture include those proposed for irrigation, which have been developed in the circular configuration necessary for future use with center irrigation pivots. As a result of the harvesting of planted pine, and the conversion of about 345 acres of cropland and non-forested uplands to pasture and incidental uses, total acreage in pasture on the North Tract increased from 750 acres to 3,938 acres. Other improvements were constructed on the North Tract, including the cattle processing facility. Aerial photographs suggest that the conversion of the North Tract to improved pasture and infrastructure to support a cattle ranch is substantially complete. The act of converting the North Tract from a property dominated by planted pine to one dominated by improved pasture, and the change in use of the East Tract from sod farm to pasture, were agricultural activities that did not require a permit from the District. As such, there is no impropriety in considering the actual, legal use of the property in its current configuration as the existing use for which baseline conditions are to be measured. Petitioners argue that the baseline conditions should be measured against the use of the property as planted pine plantation, and that Sleepy Creek should not be allowed to “cattle-up” before submitting its permit applications, thereby allowing the baseline to be established as a higher impact use. However, the applicable rules and statutes provide no retrospective time-period for establishing the nature of a parcel of property other than that lawfully existing when the application is made. See West Coast Reg’l Water Supply Auth. v. SW Fla. Water Mgmt. Dist., Case No. 95-1520 et seq., ¶ 301 (Fla. DOAH May 29, 1997; SFWMD ) (“The baseline against which projected impacts conditions [sic] are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications.”). The evidence and testimony in this case focused on the effects of the water allocation on the Floridan aquifer, Silver Springs, and the Silver River, and on the effects of the irrigation on water and nutrient transport from the properties. It was not directed at establishing a violation of chapter 373, the rules of the SJRWMD, or the CUP Applicant’s Handbook with regard to the use and management of the agriculturally-exempt unirrigated pastures, nor did it do so. Soil Types Soils are subject to classifications developed by the Soil Conservation Service based on their hydrologic characteristics, and are grouped into Group A, Group B, Group C, or Group D. Factors applied to determine the appropriate hydrologic soil group on a site-specific basis include depth to seasonal high saturation, the permeability rate of the most restrictive layer within a certain depth, and the depth to any impermeable layers. Group A includes the most well-drained soils, and Group D includes the most poorly-drained soils. Group D soils are those with seasonal high saturation within 24 inches of the soil surface and a higher runoff potential. The primary information used to determine the hydrologic soil groups on the North Tract was the depth to seasonal-high saturation, defined as the highest expected annual elevation of saturation in the soil. Depth to seasonal-high saturation was measured through a series of seven hand-dug and augered soil borings completed at various locations proposed for irrigation across the North Tract. In determining depth to seasonal-high saturation, the extracted soils were examined based on depth, color, texture, and other relevant characteristics. In six of the seven locations at which soil borings were conducted, a restrictive layer was identified within 36 inches of the soil surface. At one location at the northeastern corner of the North Tract, the auger hole ended at a depth of 48 inches -- the length of the auger -- at which depth there was an observable increase in clay content but not a full restrictive layer. However, while the soil assessment was ongoing, a back-hoe was in operation approximately one hundred yards north of the boring location. Observations of that excavation revealed a heavy clay layer at a depth of approximately 5 feet. In each of the locations, the depth to seasonal-high saturation was within 14 inches of the soil surface. Based on the consistent observation of seasonal-high saturation at each of the sampled locations, as well as the flat topography of the property with surface water features, the soils throughout the property, with the exception of a small area in the vicinity of Pivot 6, were determined to be in hydrologic soil Group D. Hydrogeologic Features There are generally five hydrogeologic units underlying the North Tract, those units being the surficial aquifer system, the intermediate confining unit, the upper Floridan aquifer, the middle confining unit, and the lower Floridan aquifer. In areas in which a confining layer is present, water falling on the surface of the land flows over the surface of the land or across the top of the confining layer. A surficial aquifer, with a relatively high perched water table, is created by the confinement and separation of surface waters from the upper strata of the Floridan aquifer. Surface waters are also collected in or conveyed by various surface water features, including perched wetlands, creeks, and streams. The preponderance of the evidence adduced at the final hearing demonstrates that the surficial aquifer exists on the property to a depth of up to 20 feet below the land surface (bls). Beneath the surficial aquifer is an intermediate confining unit of dense clay interspersed with beds of sand and calcareous clays that exists to a depth of up to 100 feet bls. The clay material observed on the North Tract is known as massive or structureless. Such clays are restrictive with very low levels of hydraulic conductivity, and are not conducive to development of preferential flow paths to the surficial or lower aquifers. The intermediate confining unit beneath the North Tract restricts the exchange of groundwater from the surficial aquifer to the upper Floridan aquifer. The upper Floridan aquifer begins at a depth of approximately 100 feet bls, and extends to a depth of approximately 340 feet bls. At about 340 feet bls, the upper Floridan aquifer transitions to the middle confining unit, which consists of finely grained, denser material that separates the interchange of water between the upper Floridan aquifer and the lower Floridan aquifer. Karst Features Karst features form as a result of water moving through rock that comprises the aquifer, primarily limestone, dissolving and forming conduits in the rock. Karst areas present a challenging environment to simulate through modeling. Models assume the subsurface to be a relatively uniform “sand box” through which it is easier to simulate groundwater flow. However, if the subsurface contains conduits, it becomes more difficult to simulate the preferential flows and their effect on groundwater flow paths and travel times. The District has designated parts of western Alachua County and western Marion County as a Sensitive Karst Area Basin. A Sensitive Karst Area is a location in which the porous limestone of the Floridan aquifer occurs within 20 feet of the land surface, and in which there is 10 to 20 inches of annual recharge to the Floridan aquifer. The designation of an area as being within the Sensitive Karst Area Basin does not demonstrate that it does, or does not, have subsurface features that are karstic in nature, or that would provide a connection between the surficial aquifer and the Floridan aquifer. The western portion of the North Tract is within the Sensitive Karst Area Basin. The two intensive-use areas on the North Tract that have associated stormwater facilities -- the cattle unloading area and the processing facility -- are outside of the Sensitive Karst Area Basin. The evidence was persuasive that karst features are more prominent to the west of the North Tract. In order to evaluate the presence of karst features on the North Tract, Mr. Andreyev performed a “desktop-type evaluation,” with a minimal field survey. The desktop review included a review of aerial photographs and an investigation of available data, including the Florida Geological Survey database of sinkhole occurrence in the area. The aerial photographs showed circular depressions suggestive of karst activity west and southwest of the North Tract, but no such depressions on the North Tract. Soil borings taken on the North Tract indicated the presence of layers of clayey sand, clays, and silts at a depth of 70 to 80 feet. Well-drilling logs taken during the development of the wells used for an aquifer performance test on the North Tract showed the limestone of the Floridan aquifer starting at a depth below ground surface of 70 to 80 feet. Other boring data generated on the North Tract suggests that there is greater than 100 feet of clay and sandy clay overburden above the Floridan aquifer on and in the vicinity of the North Tract. Regardless of site-specific differences, the observed confining layer separating the surficial aquifer from the Floridan aquifer is substantial, and not indicative of a karst environment. Aquifer performance tests performed on the North Tract were consistent in showing that drawdown in the surficial aquifer from the tests was minimal to non-detectable, which is strong evidence of an intact and low-permeability confining layer. The presence of well-developed drainage features on the North Tract is further evidence of a unit of confinement that is restricting water from going deeper into the subsurface, and forcing it to runoff to low-lying surface water features. Petitioners’ witnesses did not perform any site- specific analysis of karst features on or around the Sleepy Creek property. Their understanding of the nature of the karst systems in the region was described as “hypothetical or [] conceptual.” Dr. Kincaid admitted that he knew of no conduits on or adjacent to the North Tract. As a result of the data collected from the North Tract, Mr. Hearn opined that the potential for karst features on the property that provide an opening to the upper Floridan aquifer “is extremely remote.” Mr. Hearn’s opinion is consistent with the preponderance of the evidence in this case, and is accepted. In the event a surface karst feature were to manifest itself, Sleepy Creek has proposed that the surface feature be filled and plugged to reestablish the integrity of the confining layer. More to the point, the development of a surficial karst feature in an area influenced by irrigation would be sufficient grounds for the SJRWMD to reevaluate and modify the CUP to account for any changed conditions affecting the assumptions and bases for issuance of the CUP. Silver Springs, the Silver River, and the Ocklawaha River The primary, almost exclusive concern of Petitioners was the effect of the modified CUP and the nutrients from the proposed cattle ranch on Silver Springs, the Silver River, and the Ocklawaha River. Silver Springs Silver Springs has long been a well-known attraction in Florida. It is located just to the east of Ocala, Florida. Many of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal clear waters through famous glass-bottomed boats. For most of its recorded history, Silver Springs was the largest spring by volume in Florida. Beginning in the 1970s, it began to lose its advantage, and by the year 2000, Rainbow Springs, located in southwestern Marion County, surpassed Silver Springs as the state’s largest spring. Silver Springs exists at the top of the potentiometric surface of the Floridan aquifer. Being at the “top of the mountain,” when water levels in the Floridan aquifer decline, groundwater flow favors the lower elevation springs. Thus, surrounding springshed boundaries expand to take more water to maintain their baseflows, at the expense of the Silver Springs springshed, which contracts. Rainbow Springs shares an overlapping springshed with Silver Springs. The analogy used by Dr. Knight was of the aquifer as a bucket with holes at different levels, and with the Silver Springs “hole” near the top of the bucket. When the water level in the bucket is high, water will flow from the top hole. As the water level drops below that hole, it will preferentially flow from the lower holes. Rainbow Springs has a vent or outlet from the aquifer, that is 10 feet lower in elevation than that of Silver Springs. Coastal springs are lower still. Thus, as groundwater levels decline, the lower springs “pirate flow” from the upper springs. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. The water clarity, though still high as compared to other springs, has been reduced by 10 to 15 percent. Since the 1950s, macrophytic plants, i.e., rooted plants with seeds and flowers, have declined in population, while epiphytic and benthic algae have increased. Those plants are sensitive to increases in nitrogen in the water. Thus, Dr. Knight’s opinion that increases in nitrogen emerging from Silver Springs, calculated to have risen from just over 0.4 mg/l in the 1950s, to 1.1 mg/l in 2004, and to up to 1.5 mg/l at present,1/ have caused the observed vegetative changes is accepted. Silver River Silver Springs forms the headwaters for the Silver River, a spring run 5 1/2 miles in length, at which point it becomes a primary input to the Ocklawaha River. Issues of water clarity and alteration of the vegetative regime that exist at Silver Springs are also evident in the Silver River. In addition, the reduction in flow allows for more tannic water to enter the river, further reducing clarity. Dr. Dunn recognized the vegetative changes in the river, and opined that the “hydraulic roughness” caused by the increase in vegetation is likely creating a spring pool backwater at Silver Springs, thereby suppressing some of the flow from the spring. The Silver River has been designated as an Outstanding Florida Water. There are currently no Minimum Flows and Levels established by the District for the Silver River. Ocklawaha River The Ocklawaha River originates near Leesburg, Florida, at the Harris Chain of Lakes, and runs northward past Silver Springs. The Silver River is a major contributor to the flow of the Ocklawaha River. Due to the contribution of the Silver River and other spring-fed tributaries, the Ocklawaha River can take on the appearance of a spring run during periods of low rainfall. Historically, the Ocklawaha River flowed unimpeded to its confluence with the St. Johns River in the vicinity of Palatka, Florida. In the 1960s, as part of the Cross-Florida Barge Canal project, the Rodman Dam was constructed across the Ocklawaha River north of the Sleepy Creek property, creating a large reservoir known as the Rodman Pool. Dr. Knight testified convincingly that the Rodman Dam and Pool have altered the Ocklawaha River ecosystem, precipitating a decline in migratory fish populations and an increase in filamentous algae. At the point at which the Ocklawaha River flows past the Sleepy Creek property, it retains its free-flowing characteristics. Mill Creek, which has its headwaters on the North Tract, is a tributary of the Ocklawaha River. The Ocklawaha River, from the Eureka Dam south, has been designated as an Outstanding Florida Water. However, the Ocklawaha River at the point at which Mill Creek or other potential surface water discharges from the Sleepy Creek property might enter the river are not included in the Outstanding Florida Water designation. There are currently no Minimum Flows and Levels established by the District for the Ocklawaha River. The Silver Springs Springshed A springshed is that area from which a spring draws water. Unlike a surface watershed boundary, which is fixed based on land features, contours, and elevations, a springshed boundary is flexible, and changes depending on a number of factors, including rainfall. As to Silver Springs, its springshed is largest during periods of more abundant rainfall when the aquifer is replenished, and smaller during drier periods when groundwater levels are down, and water moves preferentially to springs and discharge points that are lower in elevation. The evidence in this case was conflicting as to whether the North Tract is in or out of the Silver Springs springshed boundary. Dr. Kincaid indicated that under some of the springshed delineations, part of the North Tract was out of the springshed, but over the total period of record, it is within the springshed. Thus, it was Dr. Kincaid’s opinion that withdrawals anywhere within the region will preferentially impact Silver Springs, though he admitted that he did not have the ability to quantify his opinion. Dr. Knight testified that the North Tract is within the Silver Springs “maximum extent” springshed at least part of the time, if not all the time. He did not opine as to the period of time in which the Silver Springs springshed was at its maximum extent. Dr. Bottcher testified that the North Tract is not within the Silver Springs springshed because there is a piezometric rise between North Tract and Silver Springs. Thus, in his opinion, withdrawals at the North Tract would not be withdrawing water going to Silver Springs. Dr. Dunn agreed that the North Tract is on the groundwater divide for Silver Springs. In his view, the North Tract is sometimes in, and sometimes out of the springshed depending on the potentiometric surface. In his opinion, the greater probability is that the North Tract is more often outside of the Silver Springs springshed, with seasonal and year—to—year variation. Dr. Dunn’s opinion provides the most credible explanation of the extent to which the North Tract sits atop that portion of the lower Floridan aquifer that feeds to Silver Springs. Thus, it is found that the groundwater divide exists to the south of the North Tract for a majority of the time, and water entering the Floridan aquifer from the North Tract will, more often than not, flow away from Silver Springs. Silver Springs Flow Volume The Silver Springs daily water discharge has been monitored and recorded since 1932. Over the longest part of the period of record, up to the 1960s, flows at Silver Springs averaged about 800 cubic feet per second (cfs). Through 1989, there was a reasonable regression between rainfall and springflow, based on average rainfalls. The long-term average rainfall in Ocala was around 50 inches per year, and long-term springflow was about 800 cfs, with deviations from average generally consistent with one another. Between 1990 and 1999, the relationship between rainfall and springflow declined by about 80 cubic feet per second. Thus, with average rainfall of 50 inches per year, the average springflow was reduced to about 720 cfs. From 2000 to 2009, there was an additional decline, such that the total cumulative decline for the 20-year period through 2009 was 250 cfs. Dr. Dunn agreed with Dr. Knight that after 2000, there was an abrupt and persistent reduction in flow of about 165 cfs. However, Dr. Dunn did not believe the post-2000 flow reduction could be explained by rainfall directly, although average rainfall was less than normal. Likewise, groundwater withdrawals did not offer an adequate explanation. Dr. Dunn described a natural 30-year cycle of wetter and drier periods known as the Atlantic Multidecadal Oscillation (AMO) that has manifested itself over the area for the period of record. From the 1940s up through 1970, the area experienced an AMO wet cycle with generally higher than normal rainfall at the Ocala rain station. For the next 30-year period, from 1970 up to 2000, the Ocala area ranged from a little bit drier to some years in which it was very, very dry. Dr. Dunn attributed the 80 cfs decline in Silver Springs flow recorded in the 1990s to that lower rainfall cycle. After 2000, when the next AMO cycle would be expected to build up, as it did post—1940, it did not happen. Rather, there was a particularly dry period around 2000 that Dr. Dunn believes to have had a dramatic effect on the lack of recovery in the post-2000 flows in the Silver River. According to Mr. Jenkins, that period of deficient rainfall extended through 2010. Around the year 2001, the relationship between rainfall and flow changed such that for a given amount of rainfall, there was less flow in the Silver River, with flow dropping to as low as 535 cfs after 2001. It is that reduction in flow that Dr. Knight has attributed to groundwater withdrawals. It should be noted that the observed flow of Silver Springs that formed the 1995 baseline conditions for the North Central Florida groundwater model that will be discussed herein was approximately 706 cfs. At the time of the final hearing in August 2014, flow at Silver Springs was 675 cfs. The reason offered for the apparent partial recovery was higher levels of rainfall, though the issue was not explored in depth. For the ten-year period centered on the year 2000, local water use within Marion and Alachua County, closer to Silver Springs, changed little -- around one percent per year. From a regional perspective, groundwater use declined at about one percent per year for the period from 1990 to 2010. The figures prepared by Dr. Knight demonstrate that the Sleepy Creek project area is in an area that has a very low density of consumptive use permits as compared to areas adjacent to Silver Springs and more clearly in the Silver Springs springshed. In Dr. Dunn’s opinion, there were no significant changes in groundwater use either locally or regionally that would account for the flow reduction in Silver Springs from 1990 to 2010. In that regard, the environmental report prepared by Dr. Dunn and submitted with the CUP modification application estimated that groundwater withdrawals accounted for a reduction in flow at Silver Springs of approximately 20 cfs as measured against the period of record up to the year 2000, with most of that reduction attributable to population growth in Marion County. In the March 2014, environmental impacts report, Dr. Dunn described reductions in the stream flow of not only the Silver River, but of other tributaries of the lower Ocklawaha River, including the upper Ocklawaha River at Moss Bluff and Orange Creek. However, an evaluation of the Ocklawaha River water balance revealed there to be additional flow of approximately 50 cfs coming into the Ocklawaha River at other stations. Dr. Dunn suggested that changes to the vent characteristics of Silver Springs, and the backwater effects of increased vegetation in the Silver River, have resulted in a redistribution of pressure to other smaller springs that discharge to the Ocklawaha River, accounting for a portion of the diminished flow at Silver Springs. The Proposed Cattle Operation Virtually all beef cattle raised in Florida, upon reaching a weight of approximately 875 pounds, are shipped to Texas or Kansas to be fattened on grain to the final body weight of approximately 1,150 pounds, whereupon they are slaughtered and processed. The United States Department of Agriculture has a certification for grass—fed beef which requires that, after an animal is weaned, it can only be fed on green forage crops, including grasses, and on corn and grains that are cut green and before they set seed. The forage crops may be grazed or put into hay or silage and fed when grass and forage is dormant. The benefit of grass feeding is that a higher quality meat is produced, with a corresponding higher market value. Sleepy Creek plans to develop the property as a grass- fed beef production ranch, with pastures and related loading/unloading and slaughter/processing facilities where calves can be fattened on grass and green grain crops to a standard slaughter weight, and then slaughtered and processed locally. By so doing, Sleepy Creek expects to save the transportation and energy costs of shipping calves to the Midwest, and to generate jobs and revenues by employing local people to manage, finish, and process the cattle. As they currently exist, pastures proposed for irrigation have been cleared and seeded, and have “fairly good grass production.” The purpose of the irrigation is to enhance the production and quality of the grass in order to maintain the quality and reliability of feed necessary for the production of grass-fed beef. East Tract Cattle Operation The East Tract is 1,242 acres in size, substantially all of which was previously cleared, irrigated, and used for sod production. The proposed CUP permit authorizes the irrigation of 611 acres of pasture under six existing center pivots. The remaining 631 acres will be used as improved, but unirrigated, pasture. Under the proposed permit, a maximum of 1,207 cattle would be managed on the East Tract. Of that number, 707 cattle would be grazed on the irrigated paddocks, and 500 cattle would be grazed on the unirrigated improved pastures. If the decision is made to forego irrigation on the East Tract, with the water allocation being used on the North Tract or not at all, the number of cattle grazed on the six center pivot pastures would be decreased from 707 cattle to 484 cattle. The historic use of the East Tract as a sod farm resulted in high phosphorus levels in the soil from fertilization, which has made its way to Daisy Creek. Sleepy Creek has proposed a cattle density substantially below that allowed by application of the formulae in the Nutrient Management Plan in order to “mine” the phosphorus levels in the soil over time. North Tract Cattle Operation The larger North Tract includes most of the “new” ranch activities, having no previous irrigation, and having been put to primarily silvicultural use with limited pasture prior to its acquisition by Sleepy Creek. The ranch’s more intensive uses, i.e., the unloading corrals and the slaughter house, are located on the North Tract. The North Tract is 7,207 acres in size. Of that, 1,656 acres are proposed for irrigation by means of 15 center- pivot irrigation systems. In addition to the proposed irrigated pastures, the North Tract includes 2,382 acres of unirrigated improved pasture, of which approximately 10 percent is wooded. Under the proposed permit, a maximum of 6,371 cattle would be managed on the North Tract. Of that number, 3,497 cattle would be grazed on the irrigated paddocks (roughly 2.2 head of cattle per acre), and 2,374 cattle would graze on the improved pastures (up to 1.1 head of cattle per acre). The higher cattle density in the irrigated pastures can be maintained due to the higher quality grass produced as a result of irrigation. The remaining 500 cattle would be held temporarily in high-concentration corrals, either after offloading or while awaiting slaughter. On average, there will be fewer than 250 head of cattle staged in those high-concentration corrals at any one time. In the absence of irrigation, the improved pasture on the North Tract could sustain about 4,585 cattle. Nutrient Management Plan, Water Conservation Plan, and BMPs The CUP and ERP applications find much of their support in the implementation of the Nutrient Management Plan (NMP), the Water Conservation Plan, and Best Management Practices (BMPs). The NMP sets forth information designed to govern the day to day operations of the ranch. Those elements of the NMP that were the subject of substantive testimony and evidence at the hearing are discussed herein. Those elements not discussed herein are found to have been supported by Sleepy Creek’s prima facie case, without a preponderance of competent and substantial evidence to the contrary. The NMP includes a herd management plan, which describes rotational grazing and the movement of cattle from paddock to paddock, and establishes animal densities designed to maintain a balance of nutrients on the paddocks, and to prevent overgrazing. The NMP establishes fertilization practices, with the application of fertilizer based on crop tissue analysis to determine need and amount. Thus, the application of nitrogen- based fertilizer is restricted to that capable of ready uptake by the grasses and forage crops, limiting the amount of excess nitrogen that might run off of the pastures or infiltrate past the root zone. The NMP establishes operation and maintenance plans that incorporate maintenance and calibration of equipment, and management of high-use areas. The NMP requires that records be kept of, among other things, soil testing, nutrient application, herd rotation, application of irrigation water, and laboratory testing. The irrigation plan describes the manner and schedule for the application of water during each irrigation cycle. Irrigation schedules for grazed and cropped scenarios vary from pivot to pivot based primarily on soil type. The center pivots proposed for use employ high-efficiency drop irrigation heads, resulting in an 85 percent system efficiency factor, meaning that there is an expected evaporative loss of 15 percent of the water before it becomes available as water in the soil. That level of efficiency is greater than the system efficiency factor of 80 percent established in CUP A.H. section 12.5.2. Other features of the irrigation plan include the employment of an irrigation manager, installation of an on-site weather station, and cumulative tracking of rain and evapotranspiration with periodic verification of soil moisture conditions. The purpose of the water conservation practices is to avoid over application of water, limiting over-saturation and runoff from the irrigated pastures. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2/ Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule 5M-11.003 (“implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.”). Rotational Grazing Rotational grazing is a practice by which cattle are allowed to graze a pasture for a limited period of time, after which they are “rotated” to a different pasture. The 1,656 acres proposed for irrigation on the North Tract are to be divided into 15 center-pivot pastures. Each individual pasture will have 10 fenced paddocks. The 611 acres of irrigated pasture on the East Tract are divided into 6 center-pivot pastures. The outer fence for each irrigated pasture is to be a permanent “hard” fence. Separating the internal paddocks will be electric fences that can be lowered to allow cattle to move from paddock to paddock, and then raised after they have moved to the new paddock. The NMP for the North Tract provides that cattle are to be brought into individual irrigated pastures as a single herd of approximately 190 cattle and placed into one of the ten paddocks. They will be moved every one to three days to a new paddock, based upon growing conditions and the reduction in grass height resulting from grazing. In this way, the cattle are rotated within the irrigated pasture, with each paddock being used for one to three days, and then rested until each of the other paddocks have been used, whereupon it will again be used in the rotation. The East Tract NMP generally provides for rotation based on the height of the pasture grasses, but is designed to provide a uniform average of cattle per acre per year. Due to the desire to “mine” phosphorus deposited during the years of operation of the East Tract as a sod farm, the density of cattle on the irrigated East Tract pastures is about 30 percent less than that proposed for the North Tract. The East Tract NMP calls for a routine pasture rest period of 15 to 30 days. Unlike dairy farm pastures, where dairy cows traverse a fixed path to the milking barn several times a day, there will be minimal “travel lanes” within the pastures or between paddocks. There will be no travel lanes through wetlands. If nitrogen-based fertilizer is needed, based upon tissue analysis of the grass, fertilizer is proposed for application immediately after a paddock is vacated by the herd. By so doing, the grass within each paddock will have a sufficient period to grow and “flush up” without grazing or traffic, which results in a high—quality grass when the cattle come back around to feed. Sleepy Creek proposes that rotational grazing is to be practiced on improved pastures and irrigated pastures alike. The rotational practices on the improved East Tract and North Tract pastures are generally similar to those practiced on the irrigated pastures. The paddocks will have permanent watering troughs, with one trough serving two adjacent paddocks. The troughs will be raised to prevent “boggy areas” from forming around the trough. Since the area around the troughs will be of a higher use, Sleepy Creek proposes to periodically remove accumulated manure, and re-grade if necessary. Other cattle support items, including feed bunkers and shade structures are portable and can be moved as conditions demand. Forage Crop Production The primary forage crop on the irrigated pastures is to be Bermuda grass. Bermuda grass or other grass types tolerant of drier conditions will be used in unirrigated pastures. During the winter, when Bermuda grass stops growing, Sleepy Creek will overseed the North Tract pastures with ryegrass or other winter crops. Due to the limitation on irrigation water, the East Tract NMP calls for no over-seeding for production of winter crops. Crops do not grow uniformly during the course of a year. Rather, there are periods during which there are excess crops, and periods during which the crops are not growing enough to keep up with the needs of the cattle. During periods of excess, Sleepy Creek will cut those crops and store them as haylage to be fed to the cattle during lower growth periods. The North Tract management plan allows Sleepy Creek to dedicate one or more irrigated pastures for the exclusive production of haylage. If that option is used, cattle numbers will be reduced in proportion to the number of pastures dedicated to haylage production. As a result of the limit on irrigation, the East Tract NMP does not recommend growing supplemental feed on dedicated irrigation pivot pastures. Direct Wetland Impacts Approximately 100 acres proposed for irrigation are wetlands or wetland buffer. Those areas are predominantly isolated wetlands, though some have surface water connections to Mill Creek, a water of the state. Trees will be cut in the wetlands to allow the pivot to pass overhead. Tree cutting is an exempt agricultural activity that does not require a permit. There was no persuasive evidence that cutting trees will alter the fundamental benefit of the wetlands or damage water resources of the District. The wetlands and wetland buffer will be subject to the same watering and fertigation regimen as the irrigated pastures. The application of water to wetlands, done concurrently with the application of water to the pastures, will occur during periods in which the pasture soils are dry. The incidental application of water to the wetlands during dry periods will serve to maintain hydration of the wetlands, which is considered to be a benefit. Fertilizers will be applied through the irrigation arms, a process known as fertigation. Petitioners asserted that the application of fertilizer onto the wetlands beneath the pivot arms could result in some adverse effects to the wetlands. However, Petitioners did not quantify to what extent the wetlands might be affected, or otherwise describe the potential effects. Fertigation of the wetlands will promote the growth of wetland plants. Nitrogen applied through fertigation will be taken up by plants, or will be subject to denitrification -- a process discussed in greater detail herein -- in the anaerobic wetland soils. The preponderance of the evidence indicated that enhanced wetland plant growth would not rise to a level of concern. Since most of the affected wetlands are isolated wetlands, there is expected to be little or no discharge of nutrients from the wetlands. Even as to those wetlands that have a surface water connection, most, if not all of the additional nitrogen applied through fertigation will be accounted for by the combined effect of plant uptake and denitrification. Larger wetland areas within an irrigated pasture will be fenced at the buffer line to prevent cattle from entering. The NMP provided a blow-up of the proposed fencing related to a larger wetland on Pivot 8. Although other figures are not to the same scale, it appears that larger wetlands associated with Pivots 1, 2, 3, and 12 will be similarly fenced. Cattle would be allowed to go into the smaller, isolated wetlands. Cattle going into wetlands do not necessarily damage the wetlands. Any damage that may occur is a function of density, duration, and the number of cattle. The only direct evidence of potential damage to wetlands was the statement that “[i]f you have 6,371 [cattle] go into a wetland, there may be impacts.” The NMP provides that pasture use will be limited to herds of approximately 190 cattle, which will be rotated from paddock to paddock every two to three days, and which will allow for “rest” periods of approximately 20 days. There will be no travel lanes through any wetland. Thus, there is no evidence to support a finding that the cattle at the density, duration, and number proposed will cause direct adverse effects to wetlands on the property. High Concentration Areas Cattle brought to the facility are to be unloaded from trucks and temporarily corralled for inspection. For that period, the cattle will be tightly confined. Cattle that have reached their slaughter weight will be temporarily held in corrals associated with the processing plant. The stormwater retention ponds used to capture and store runoff from the offloading corral and the processing plant holding corral are part of a normal and customary agricultural activity, and are not part of the applications and approvals that are at issue in this proceeding. The retention ponds associated with the high-intensity areas do not require permits because they do not exceed one acre in size or impound more than 40 acre-feet of water. Nonetheless, issues related to the retention ponds were addressed by Petitioners and Sleepy Creek, and warrant discussion here. The retention ponds are designed to capture 100 percent of the runoff and entrained nutrients from the high concentration areas for a minimum of a 24—hour/25—year storm event. If rainfall occurs in excess of the designed storm, the design is such that upon reaching capacity, only new surface water coming to the retention pond will be discharged, and not that containing high concentrations of nutrients from the initial flush of stormwater runoff. Unlike the stormwater retention berms for the pastures, which are to be constructed from the first nine inches of permeable topsoil on the property, the corral retention ponds are to be excavated to a depth of six feet which, based on soil borings in the vicinity, will leave a minimum of two to four feet of clay beneath the retention ponds. In short, the excavation will penetrate into the clay layer underlying the pond sites, but will not penetrate through that layer. The excavated clay will be used to form the side slopes of the ponds, lining the permeable surficial layer and generally making the ponds impermeable. Organic materials entering the retention ponds will form an additional seal. An organic seal is important in areas in which retention ponds are constructed in sandy soil conditions. Organic sealing is less important in this case, where clay forms the barrier preventing nutrients from entering the surficial aquifer. Although the organic material is subject to periodic removal, the clay layer will remain to provide the impermeable barrier necessary to prevent leakage from the ponds. Dr. Bottcher testified that if, during excavation of the ponds, it was found that the remaining in-situ clay layer was too thin, Sleepy Creek would implement the standard practice of bringing additional clay to the site to ensure adequate thickness of the liner. Nutrient Balance The goal of the NMP is to create a balance of nutrients being applied to and taken up from the property. Nitrogen and phosphorus are the nutrients of primary concern, and are those for which specific management standards are proposed. Nutrient inputs to the NMP consist generally of deposition of cattle manure (which includes solid manure and urine), recycling of plant material and roots from the previous growing season, and application of supplemental fertilizer. Nutrient outputs to the NMP consist generally of volatization of ammonia to the atmosphere, uptake and utilization of the nutrients by the grass and crops, weight gain of the cattle, and absorption and denitrification of the nutrients in the soil. The NMP, and the various models discussed herein, average the grass and forage crop uptake and the manure deposition to match that of a 1,013 pound animal. That average weight takes into account the fact that cattle on the property will range from calf weight of approximately 850 pounds, to slaughter weight of 1150 pounds. Nutrients that are not accounted for in the balance, e.g., those that become entrained in stormwater or that pass through the plant root zone without being taken up, are subject to runoff to surface waters or discharge to groundwater. Generally, phosphorus not taken up by crops remains immobile in the soil. Unless there is a potential for runoff to surface waters, the nutrient balance is limited by the amount of nitrogen that can be taken up by the crops. Due to the composition of the soils on the property, the high water table, and the relatively shallow confining layer, there is a potential for surface runoff. Thus, the NMP was developed using phosphorus as the limiting nutrient, which results in nutrient application being limited by the “P-index.” A total of 108 pounds of phosphorus per acre/per year can be taken up and used by the irrigated pasture grasses and forage crops. Therefore, the total number of cattle that can be supported on the irrigated pastures is that which, as a herd, will deposit an average of 108 pounds of phosphorus per year over the irrigated acreage. Therefore, Sleepy Creek has proposed a herd size and density based on calculations demonstrating that the total phosphorus contained in the waste excreted by the cattle equals the amount taken up by the crops. A herd producing 108 pounds per acre per year of phosphorus is calculated to produce 147 pounds of nitrogen per acre per year. The Bermuda grass and forage crops proposed for the irrigated fields require 420 pounds of nitrogen per acre per year. As a result of the nitrogen deficiency, additional nitrogen-based fertilizer to make up the shortfall is required to maintain the crops. Since phosphorus needs are accounted for by animal deposition, the fertilizer will have no phosphorus. The NMP requires routine soil and plant tissue tests to determine the amount of nitrogen fertilizer needed. By basing the application of nitrogen on measured rather than calculated needs, variations in inputs, including plant decomposition and atmospheric deposition, and outputs, including those affected by weather, can be accounted for, bringing the full nutrient balance into consideration. The numeric values for crop uptakes, manure deposition, and other estimates upon which the NMP was developed were based upon literature, values, and research performed and published by the University of Florida and the Natural Resource Conservation Service. Dr. Bottcher testified convincingly that the use of such values is a proven and reliable method of developing a balance for the operation of similar agricultural operations. A primary criticism of the NMP was its expressed intent to “reduce” or “minimize” the transport of nutrients to surface waters and groundwater, rather than to “negate” or “prevent” such transport. Petitioners argue that complete prevention of the transport of nutrients from the property is necessary to meet the standards necessary for issuance of the CUP and ERP. Mr. Drummond went into some detail regarding the total mass of nutrients expected to be deposited onto the ground from the cattle, exclusive of fertilizer application. In the course of his testimony, he suggested that the majority of the nutrients deposited on the land surface “are going to make it to the surficial aquifer and then be carried either to the Floridan or laterally with the groundwater flow.” However, Mr. Drummond performed no analysis on the fate of nitrogen through uptake by crops, volatization, or soil treatment, and did not quantify the infiltration of nitrogen to groundwater. Furthermore, he was not able to provide any quantifiable estimate on any effect of nutrients on Mill Creek, the Ocklawaha River, or Silver Springs. In light of the effectiveness of the nutrient balance and other elements of the NMP, along with the retention berm system that will be discussed herein, Mr. Drummond’s assessment of the nutrients that might be expected to impact water resources of the District is contrary to the greater weight of the evidence. Mr. Drummond’s testimony also runs counter to that of Dr. Kincaid, who performed a particle track analysis of the fate of water recharge from the North Tract. In short, Dr. Kincaid calculated that of the water that makes it as recharge from the North Tract to the surficial aquifer, less than one percent is expected to make its way to the upper Floridan aquifer, with that portion originating from the vicinity of Pivot 6. Recharge from the other 14 irrigated pastures was ultimately accounted for by evapotranspiration or emerged at the surface and found its way to Mill Creek. The preponderance of the competent, substantial evidence adduced at the final hearing supports the effectiveness of the NMPs for the North Tract and East Tract at managing the application and use of nutrients on the property, and minimizing the transport of nutrients to surface water and groundwater resources of the District. North Central Florida Model All of the experts involved in this proceeding agreed that the use of groundwater models is necessary to simulate what might occur below the surface of the ground. Models represent complex systems by applying data from known conditions and impacts measured over a period of years to simulate the effects of new conditions. Models are imperfect, but are the best means of predicting the effects of stresses on complex and unseen subsurface systems. The North Central Florida (NCF) model is used to simulate impacts of water withdrawals on local and regional groundwater levels and flows. The NCF model simulates the surficial aquifer, the upper Floridan aquifer, and the lower Floridan aquifer. Those aquifers are separated from one another by relatively impervious confining units. The intermediate confining unit separates the surficial aquifer from the upper Floridan aquifer. The intermediate confining unit is not present in all locations simulated by the NCF model. However, the evidence is persuasive that the intermediate confining unit is continuous at the North Tract, and serves to effectively isolate the surficial aquifer from the upper Floridan aquifer. The NCF model is not a perfect depiction of what exists under the land surface of the North Tract or elsewhere. It was, however, acknowledged by the testifying experts in this case, despite disagreements as to the extent of error inherent in the model, to be the best available tool for calculating the effects of withdrawals of water within the boundary of the model. The NCF model was developed and calibrated over a period of years, is updated routinely as data becomes available, and has undergone peer review. Aquifer Performance Tests In order to gather site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, a series of three aquifer performance tests (APTs) was conducted on the North Tract. The first two tests were performed by Sleepy Creek, and the third by the District. An APT serves to induce stress on the aquifer by pumping from a well at a high rate. By observing changes in groundwater levels in observation wells, which can be at varying distances from the extraction well, one can extrapolate the nature of the subsurface. In addition, well-completion reports for the various withdrawal and observation wells provide actual data regarding the composition of subsurface soils, clays, and features of the property. The APT is particularly useful in evaluating the ability of the aquifer to produce water, and in calculating the transmissivity of the aquifer. Transmissivity is a measure of the rate at which a substance passes through a medium and, as relevant to this case, measures how groundwater flows through an aquifer. The APTs demonstrated that the Floridan aquifer is capable of producing water at the rate requested. The APT drawdown contour measured in the upper Floridan aquifer was greater than that predicted from a simple run of the NCF model, but the lateral extent of the drawdown was less than predicted. The most reasonable conclusion to be drawn from the combination of greater than expected drawdown in the upper Floridan aquifer with less than expected extent is that the transmissivity of the aquifer beneath the North Tract is lower than the NCF model assumptions. The conclusion that the transmissivity of the aquifer at the North Tract is lower than previously estimated means that impacts from groundwater extraction would tend to be more vertical than horizontal, i.e., the drawdown would be greater, but would be more localized. As such, for areas of lower than estimated transmissivity, modeling would over-estimate off-site impacts from the extraction. NCF Modeling Scenarios The initial NCF modeling runs were based on an assumed withdrawal of 2.39 mgd, an earlier -- though withdrawn - - proposal. The evidence suggests that the simulated well placement for the 2.39 mgd model run was entirely on the North Tract. Thus, the results of the model based on that withdrawal have some limited relevance, especially given that the proposed CUP allows for all of the requested 1.46 mgd of water to be withdrawn from North Tract wells at the option of Sleepy Creek, but will over-predict impacts from the permitted rate of withdrawal. A factor that was suggested as causing a further over-prediction of drawdown in the 2.39 mgd model run was the decision, made at the request of the District, to exclude the input of data of additional recharge to the surficial aquifer, wetlands and surface waters from the irrigation, and the resulting diminution in soil storage capacity. Although there is some merit to the suggestion that omitting recharge made the model results “excessively conservative,” the addition of recharge to the model would not substantially alter the predicted impacts. A model run was subsequently performed based on a presumed withdrawal of 1.54 mgd, a rate that remains slightly more than, but still representative of, the requested amount of 1.46 mgd. The 1.54 mgd model run included an input for irrigation recharge. The simulated extraction points were placed on the East Tract and North Tract in the general configuration as requested in the CUP application. The NCF is designed to model the impacts of a withdrawal based upon various scenarios, identified at the hearing as Scenarios A, B, C, and D. Scenario A is the baseline condition for the NCF model, and represents the impacts of all legal users of water at their estimated actual flow rates as they existed in 1995. Scenario B is all existing users, not including the applicant, at end-of-permit allocations. Scenario C is all existing users, including the applicant, at current end-of-permit allocations. Scenario D is all permittees at full allocation, except the applicant which is modeled at the requested (i.e., new or modified) end-of-permit allocation. To simulate the effects of the CUP modification, simulations were performed on scenarios A, C, and D. In order to measure the specific impact of the modification of the CUP, the Scenario C impacts to the surficial, upper Floridan, and lower Floridan aquifers were compared with the Scenario D impacts to those aquifers. In order to measure the cumulative impact of the CUP, the Scenario A actual-use baseline condition was compared to the Scenario D condition which predicts the impacts of all permitted users, including the applicant, pumping at full end-of-permit allocations. The results of the NCF modeling indicate the following: 2.39 mgd - Specific Impact The surficial aquifer drawdown from the simulated 2.39 mgd withdrawal was less than 0.05 feet on-site and off- site, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The upper Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at between 0.30 and 0.12 feet on-site, and between 0.30 and 0.01 feet off-site. The higher off-site figures are immediately proximate to the property. The lower Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at less than 0.05 feet at all locations, and at or less than 0.02 feet within six miles of the North Tract. 2.39 mgd - Cumulative Impact The cumulative impact to the surficial aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, was less than 0.05 feet on-site, and off-site to the north and east, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The cumulative impact to the upper Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 0.4 feet to 0.8 feet over all pertinent locations. The cumulative impact to the lower Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 1.0 to 1.9 feet over all pertinent locations. The conclusion drawn by Mr. Andreyev that the predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals is supported by the evidence and accepted. 1.54 mgd - Specific Impact The NCF model runs based on the more representative 1.54 mgd withdrawal predicted a surficial aquifer drawdown of less than 0.01 feet (i.e., no drawdown contour shown) on the North Tract, and a 0.01 to 0.02 foot drawdown at the location of the East Tract. The drawdown of the upper Floridan aquifer from the CUP modification was predicted at up to 0.07 feet on the property, and generally less than 0.05 feet off-site. There were no drawdown contours at the minimum 0.01 foot level that came within 9 miles of Silver Springs. The lower Floridan aquifer drawdown from the CUP modification was predicted at less than 0.01 feet (i.e., no drawdown contour shown) at all locations. 1.54 mgd - Cumulative Impact A comparison of the cumulative drawdown contours for the 2.36 mgd model and 1.54 mgd model show there to be a significant decrease in predicted drawdowns to the surficial and upper Floridan aquifers, with the decrease in the upper Floridan aquifer drawdown being relatively substantial, i.e., from 0.5 to 0.8 feet on-site predicted for the 2.36 mgd withdrawal, to 0.4 to 0.5 feet on-site for the 1.54 mgd model. Given the small predicted individual impact of the CUP on the upper Floridan aquifer, the evidence is persuasive that the cumulative impacts are the result of other end-of-permit user withdrawals. The drawdown contour for the lower Floridan aquifer predicted by the 1.54 mgd model is almost identical to that of the 2.36 mgd model, thus supporting the conclusion that predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals. Modeled Effect on Silver Springs As a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs. The net cumulative impact in spring flow as measured from 1995 conditions to the scenario in which all legal users, including Sleepy Creek, are pumping at full capacity at their end-of-permit rates for one year3/ is roughly 35.4 cfs, which is approximately 5 percent of Silver Springs’ current flow. However, as a result of the redistribution of the Sleepy Creek withdrawal, which is, in its current iteration, a legal and permitted use, the cumulative effect of the CUP modification at issue is an increase in flow of 0.l5 cfs. Dr. Kincaid agreed that there is more of an impact to Silver Springs when the pumping allowed by the CUP is located on the East Tract than there is on the North Tract, but that the degree of difference is very small. Dr. Knight testified that effect on the flow of Silver Springs from relocating the 1.46 mgd withdrawal from the East Tract to the North Tract would be “zero.” The predicted increase of 0.15 cfs is admittedly miniscule when compared to the current Silver Springs springflow of approximately 675 cfs. However, as small as the modeled increase may be -- perhaps smaller than its “level of certainty” -- it remains the best evidence that the impact of the CUP modification to the flow of Silver Springs will be insignificant at worst, and beneficial at best. Opposition to the NCF Model Petitioners submitted considerable evidence designed to call the results generated by the District’s and Sleepy Creek’s NCF modeling into question. Karst Features A primary criticism of the validity of the NCF model was its purported inability to account for the presence of karst features, including conduits, and their effect on the results. It was Dr. Kincaid’s opinion that the NCF model assigned transmissivity values that were too high, which he attributed to the presence of karst features that are collecting flow and delivering it to springs. He asserted that, instead of assuming the presence of karst features, the model was adjusted to raise the overall capacity of the porous medium to transmit water, and thereby match the observed flows. In his opinion, the transmissivity values of the equivalent porous media were raised so much that the model can no longer be used to predict drawdowns. That alleged deficiency in the model is insufficient for two reasons. First, as previously discussed in greater detail, the preponderance of the evidence in this case supports a finding that there are no karst features in the vicinity of the North Tract that would provide preferential pathways for water flow so as to skew the results of the NCF model. Second, Dr. Kincaid, while acknowledging that the NCF model is the best available tool for predicting impacts from groundwater extraction on the aquifer, suggested that a hybrid porous media and conduit model would be a better means of predicting impacts, the development of which would take two years or more. There is no basis for the establishment of a de facto moratorium on CUP permitting while waiting for the development of a different and, in this case, unnecessary model. For the reasons set forth herein, it is found that the NCF model is sufficient to accurately and adequately predict the effects of the Sleepy Creek groundwater withdrawals on the aquifers underlying the property, and to provide reasonable assurance that the standards for such withdrawals have been met. Recharge to the Aquifer Petitioners argued that the modeling results showing little significant drawdown were dependent on the application of unrealistic values for recharge or return flow from irrigation. In a groundwater model, as in the physical world, some portion of the water extracted from the aquifer is predicted to be returned to the aquifer as recharge. If more water is applied to the land surface than is being accounted for by evaporation, plant uptake and evapotranspiration, surface runoff, and other processes, that excess water may seep down into the aquifer as recharge. Recharge serves to replenish the aquifer and offset the effects of the groundwater withdrawal. Dr. Kincaid opined that the NCF modeling performed for the CUP application assigned too much water from recharge, offsetting the model's prediction of impacts to other features. It is reasonable to assume that there is some recharge associated with both agricultural and public supply uses. However, the evidence suggests that the impact of recharge on the overall NCF model results is insignificant on the predicted impacts to Silver Springs, the issue of primary concern. Mr. Hearn ran a simulation using the NCF model in which all variables were held constant, except for recharge. The difference between the “with recharge” and “without recharge" simulations at Silver Springs was 0.002 cfs. That difference is not significant, and is not suggestive of adverse impacts on Silver Springs from the CUP modification. Dr. Kincaid testified that “the recharge offset on the property is mostly impacting the surficial aquifer,” and that “the addition of recharge in this case didn't have much of an impact on the upper Floridan aquifer system.” As such, the effect of adding recharge to the model would be as to the effect of groundwater withdrawal on wetlands or surface water bodies, and not on springs. As previously detailed, the drawdown of the surficial aquifer simulated for the 2.39 mgd “no recharge” scenario were less than 0.05 feet on-site and off-site, except for a predicted 0.07 foot drawdown to the west of the North Tract. The predicted drawdown of the surficial aquifer for the 1.54 mgd “with recharge” scenario was 0.02 feet or less. The preponderance of the evidence supports a finding that drawdowns of either degree are less than that at which adverse impacts to wetlands or surface waters would occur. Thus, issues related to the recharge or return flows from irrigation are insufficient to support a finding or conclusion that the NCF model failed to provide reasonable assurance that the standards for issuance of the CUP modification were met. External Boundaries The boundaries of the NCF model are not isolated from the rest of the physical world. Rather, groundwater flows into the modeled area from multiple directions, and out of the modeled area in multiple directions. Inflows to the model area are comprised of recharge, which is an assigned value, and includes water infiltrating and recharging the aquifer from surface waters; injection wells; upward and downward leakage from lower aquifers; and flow across the external horizontal boundaries. Outflows from the model area include evapotranspiration; discharge to surface waters, including springs and rivers; extraction from wells; upward and downward leakage from lower aquifers; and flow against the external model boundaries. Dr. Kincaid testified that flow across the external model boundary is an unknown and unverifiable quantity which increases the uncertainty in the model. He asserted that in the calibrated version of the model, there is no way to check those flows against data. His conclusion was that the inability of the NCF model to accurately account for external boundary flow made the margin of error so great as to make the model an unreliable tool with which to assess whether the withdrawal approved by the proposed CUP modification will increase or decrease drawdown at Silver Springs. The District correlates the NCF model boundaries with a much larger model developed by the United States Geological Survey, the Peninsula of Florida Model, more commonly referred to as the Mega Model, which encompasses most of the State of Florida and part of Southeast Georgia. The Mega Model provides a means to acknowledge that there are stresses outside the NCF model, and to adjust boundary conditions to account for those stresses. The NCF is one of several models that are subsets of the Mega Model, with the grids of the two models being “nested” together. The 1995 base year of the NCF model is sufficiently similar to the 1993-1994 base year of the Mega Model as to allow for a comparison of simulated drawdowns calculated by each of the models. By running a Mega Model simulation of future water use, and applying the change in that use from 1993 base year conditions, the District was able to come to a representative prediction of specific boundary conditions for the 1995 NCF base year, which were then used as the baseline for simulations of subsequent conditions. In its review of the CUP modification, the District conducted a model validation simulation to measure the accuracy of the NCF model against observed conditions, with the conditions of interest being the water flow at Silver Springs. The District ran a simulation using the best information available as to water use in the year 2010, the calculated boundary conditions, irrigation, pumping, recharge, climatic conditions, and generally “everything that we think constitutes that year.” The discharge of water at Silver Springs in 2010 was measured at 580 cfs. The discharge simulated by the NCF model was 545 cfs. Thus, the discharge predicted by the NCF model simulation was within six percent of the observed discharge. Such a result is generally considered in the modeling community to be “a home run.” Petitioners’ objections to the calculation of boundary conditions for the NCF model are insufficient to support a finding that the NCF model is not an appropriate and accurate tool for determining that reasonable assurance has been provided that the standards for issuance of the CUP modification were met. Cumulative Impact Error As part of the District’s efforts to continually refine the NCF, and in conjunction with a draft minimum flows and levels report for Silver Springs and the Silver River, the cumulative NCF model results for the period of baseline to 2010 were compared with the simulated results from the Northern District Model (NDF), a larger model that overlapped the NCF. As a result of the comparison, which yielded different results, it was discovered that the modeler had “turned off” not only the withdrawal pumps, but inputs to the aquifer from drainage wells and sinkholes as well. When those inputs were put back into the model run, and effects calculated only from withdrawals between the “pumps-off” condition and 2010 pumping conditions, the cumulative effect of the withdrawals was adjusted from a reduction in the flow at Silver Springs of 29 cfs to a reduction of between 45 and 50 cfs, an effect described as “counterintuitive.” Although that result has not undergone peer review, and remains subject to further review and comparison with the Mega Model, it was accepted by the District representative, Mr. Bartol. Petitioners seized upon the results of the comparison model run as evidence of the inaccuracy and unreliability of the NCF model. However, the error in the NCF model run was not the result of deficiencies in the model, but was a data input error. Despite the error in the estimate of the cumulative effect of all users at 2010 levels, the evidence in this case does not support a finding that the more recent estimates of specific impact from the CUP at issue were in error. NCF Model Conclusion As has been discussed herein, a model is generally the best means by which to calculate conditions and effects that cannot be directly observed. The NCF model is recognized as being the best tool available for determining the subsurface conditions of the model domain, having been calibrated over a period of years and subject to peer review. It should be recognized that the simulations run using the NCF model represent the worst—case scenario, with all permittees simultaneously drawing at their full end-of-permit allocations. There is merit to the description of that occurrence as being “very remote.” Thus, the results of the modeling represent a conservative estimate of potential drawdown and impacts. While the NCF model is subject to uncertainty, as is any method of predicting the effects of conditions that cannot be seen, the model provides reasonable assurance that the conditions simulated are representative of the conditions that will occur as a result of the withdrawals authorized by the CUP modification. Environmental Resource Permit The irrigation proposed by the CUP will result in runoff from the North Tract irrigated pastures in excess of that expected from the improved pastures, due in large measure to the diminished storage capacity of the soil. Irrigation water will be applied when the soils are dry, and capable of absorbing water not subject to evaporation or plant uptake. The irrigation water will fill the storage space that would exist without irrigation. With irrigation water taking up the capacity of the soil to hold water, soils beneath the irrigation pivots will be less capable of retaining additional moisture during storm events. Thus, there is an increased likelihood of runoff from the irrigated pastures over that expected with dry soils. The increase in runoff is expected to be relatively small, since there should be little or no irrigation needed during the normal summer wet season. The additional runoff may have increased nutrient levels due to the increased cattle density made possible by the irrigation of the pastures. The CUP has a no—impact requirement for water quality resulting from the irrigation of the improved pasture. Thus, nutrients leaving the irrigated pastures may not exceed those calculated to be leaving the existing pre-development use as improved pastures. Retention Berms The additional runoff and nutrient load is proposed to be addressed by constructing a system of retention berms, approximately 50,0004/ feet in length, which is intended to intercept, retain, and provide treatment for runoff from the irrigated pasture. The goal of the system is to ensure that post—development nutrient loading from the proposed irrigated pastures will not exceed the pre—development nutrient loading from the existing improved pastures. An ERP permit is required for the construction of the berm system, since the area needed for the construction of the berms is greater than the one acre in size, and since the berms have the capability of impounding more than 40 acre-feet of water. The berms are to be constructed by excavating the top nine inches of sandy, permeable topsoil and using that permeable soil to create the berms, which will be 1 to 2 feet in height. The water storage areas created by the excavation will have flat or horizontal bottoms, and will be very shallow with the capacity to retain approximately a foot of water. The berms will be planted with pasture grasses after construction to provide vegetative cover. The retention berm system is proposed to be built in segments, with the segment designed to capture runoff from a particular center pivot pasture to be constructed prior to the commencement of irrigation from that center pivot. A continuous clay layer underlies the areas in which the berms are to be constructed. The clay layer varies from 18 to 36 inches below the ground surface, with at least one location being as much as five feet below the ground surface. As such, after nine inches of soil is scraped away to create the water retention area and construct the berm, there will remain a layer of permeable sandy material above the clay. The berms are to be constructed at least 25 feet landward of any jurisdictional wetland, creating a “safe upland line.” Thus, the construction, operation, and maintenance of the retention berms and redistribution swales will result in no direct impacts to jurisdictional wetlands or other surface waters. There will be no agricultural activities, e.g., tilling, planting, or mowing, within the 25-foot buffers, and the buffers will be allowed to establish with native vegetation to provide additional protection for downgradient wetlands. As stormwater runoff flows from the irrigated pastures, it may, in places, create concentrated flow ways. Redistribution swales will be built in those areas to spread any remaining overland flow of water and reestablish sheet flow to the retention berm system. At any point at which water may overtop a berm, the berm will be hardened with rip—rap to insure its integrity. The berms are designed to intercept and collect overland flow from the pastures and temporarily store it behind the berms, regaining the soil storage volume lost through irrigation. A portion of the runoff intercepted by the berm system will evaporate. The majority will infiltrate either through the berm, or vertically into the subsurface soils beneath it. When the surficial soils become saturated, further vertical movement will be stopped by the impermeable clay layer underlying the site. The runoff water will then move horizontally until it reemerges into downstream wetland systems. Thus, the berm system is not expected to have a measurable impact on the hydroperiod of the wetlands on the North Tract. Phosphorus Removal Phosphorus tends to get “tied up” in soil as it moves through it. Phosphorus reduction occurs easily in permeable soil systems because it is removed from the water through a chemical absorption process that is not dependent on the environment of the soil. As the soils in the retention areas and berms go through drying cycles, the absorption capacity is regenerated. Thus, the retention system will effectively account for any increase in phosphorus resulting from the increased cattle density allowed by the irrigation such that there is expected to be no increase in phosphorus levels beyond the berm. Nitrogen Removal When manure is deposited on the ground, primarily as high pH urine, the urea is quickly converted to ammonia, which experiences a loss of 40 to 50 percent of the nitrogen to volatization. Soil conditions during dry weather conditions are generally aerobic. Remaining ammonia in the manure is converted by aerobic bacteria in the soil to nitrates and nitrites. Converted nitrates and nitrites from manure, along with nitrogen from fertilizer, is readily available for uptake as food by plants, including grasses and forage crops. Nitrates and nitrites are mobile in water. Therefore, during rain events of sufficient intensity to create runoff, the nitrogen can be transported downstream towards wetlands and other receiving waters, or percolate downward through the soil until blocked by an impervious barrier. During storm events, the soils above the clay confining layer and the lower parts of the pervious berms become saturated. Those saturated soils are drained of oxygen and become anaerobic. When nitrates and nitrites encounter saturated conditions, they provide food for anaerobic bacteria that exist in those conditions. The bacteria convert nitrates and nitrites to elemental nitrogen, which has no adverse impact on surface waters or groundwater. That process, known as denitrification, is enhanced in the presence of organic material. The soils from which the berms are constructed have a considerable organic component. In addition to the denitrification that occurs in the saturated conditions in and underlying the berms, remaining nitrogen compounds that reemerge into the downstream wetlands are likely to encounter organic wetland-type soil conditions. Organic wetland soils are anaerobic in nature, and will result in further, almost immediate denitrification of the nitrates and nitrites in the emerging water. Calculation of Volume - BMPTRAINS Model The calculation of the volume necessary to capture and store excess runoff from the irrigated pastures was performed by Dr. Wanielista using the BMPTRAINS model. BMPTRAINS is a simple, easy to use spreadsheet model. Its ease of use does not suggest that it is less than reliable. The model has been used as a method of calculating storage volumes in many conditions over a period of more than 40 years. The model was used to calculate the storage volumes necessary to provide storage and treatment of runoff from fifteen “basins” that had a control or a Best Management Practice associated with them. All of the basins were calculated as being underlain by soils in poorly-drained hydrologic soil Group D, except for the basin in the vicinity of Pivot 6, which is underlain by the more well-drained soil Group A. The model assumed about percent of the property to have soil Group A soils, an assumption that is supported by the evidence. Soil moisture conditions on the property were calculated by application of data regarding rainfall events and times, the irrigation schedule, and the amount of irrigation water projected for use over a year. The soil moisture condition was used to determine the amount of water that could be stored in the on-site soils, known as the storage coefficient. Once the storage coefficient was determined, that data was used to calculate the amount of water that would be expected to run off of the North Tract, known as the curve number. The curve number is adjusted by the extent to which the storage within a soil column is filled by the application of irrigation water, making it unable to store additional rainfall. As soil storage goes down, the curve number goes up. Thus, a curve number that approaches 100 means that more water is predicted to run off. Conversely, a lower curve number means that less water is predicted to run off. The pre-development curve number for the North Tract was based on the property being an unirrigated, poor grass area. A post-development curve number was assigned to the property that reflected a wet condition representative of the irrigated soils beneath the pivots. In calculating the storage volume necessary to handle runoff from the basins, the wet condition curve number was adjusted based on the fact that there is a mixture of irrigated and unirrigated general pasture within each basin to be served by a segment of the retention berm system, and by the estimated 15 percent of the time that the irrigation areas would be in a drier condition. In addition, the number was adjusted to reflect the 8 to 10 inches of additional evapotranspiration that occurs as a result of irrigation. The BMPTRAINS model was based on average annual nutrient-loading conditions, with water quality data collected at a suitable point within Reach 22, the receiving waterbody. The effects of nutrients from the irrigated pastures on receiving waterbodies is, in terms of the model, best represented by average annual conditions, rather than a single highest-observed nutrient value. Pre-development loading figures were based on the existing use of the property as unirrigated general pasture. The pre-development phosphorus loading figure was calculated at an average event mean concentration (EMC) of 0.421 milligrams per liter (mg/l). The post—condition phosphorus loading figure was calculated at an EMC of 0.621 mg/l. Therefore, in order to achieve pre-development levels of phosphorus, treatment to achieve a reduction in phosphorus of approximately 36 percent was determined to be necessary. The pre-development nitrogen loading figure was calculated at an EMC of 2.6 mg/l. The post—condition nitrogen loading figure was calculated at an EMC of 3.3 mg/l. Therefore, in order to achieve pre-development levels of nitrogen, treatment to achieve a reduction in nitrogen of approximately 25 percent was determined to be necessary. The limiting value for the design of the retention berms is phosphorus. To achieve post-development concentrations that are equal to or less than pre-development concentrations, the treatment volume of the berm system must be sufficient to allow for the removal of 36 percent of the nutrients in water being retained and treated behind the berms, which represents the necessary percentage of phosphorus. In order to achieve the 36 percent reduction required for phosphorus, the retention berm system must be capable of retaining approximately 38 acre—feet of water from the 15 basins. In order to achieve that retention volume, a berm length of approximately 50,000 linear feet was determined to be necessary, with an average depth of retention behind the berms of one foot. The proposed length of the berms is sufficient to retain the requisite volume of water to achieve a reduction in phosphorus of 36 percent. Thus, the post-development/irrigation levels of phosphorus from runoff are expected to be no greater than pre-development/general pasture levels of phosphorus from runoff. By basing the berm length and volume on that necessary for the treatment of phosphorus, there will be storage volume that is greater than required for a 25 percent reduction in nitrogen. Thus, the post-development/irrigation levels of nitrogen from runoff are expected to be less than pre- development/general pasture levels of nitrogen from runoff. Mr. Drummond admitted that the design of the retention berms “shows there is some reduction, potentially, but it's not going to totally clean up the nutrients.” Such a total clean-up is not required. Rather, it is sufficient that there is nutrient removal to pre-development levels, so that there is no additional pollutant loading from the permitted activities. Reasonable assurance that such additional loading is not expected to occur was provided. Despite Mr. Drummond’s criticism of the BMPTRAINS model, he did not quantify nutrient loading on the North Tract, and was unable to determine whether post-development concentrations of nutrients would increase over pre-development levels. As such, there was insufficient evidence to counter the results of the BMPTRAINS modeling. Watershed Assessment Model In order to further assess potential water quantity and water quality impacts to surface water bodies, and to confirm stormwater retention area and volume necessary to meet pre-development conditions, Sleepy Creek utilized the Watershed Assessment Model (WAM). The WAM is a peer-reviewed model that is widely accepted by national, state, and local regulatory entities. The WAM was designed to simulate water balance and nutrient impacts of varying land uses. It was used in this case to simulate and provide a quantitative measure of the anticipated impacts of irrigation on receiving water bodies, including Mill Creek, Daisy Creek, the Ocklawaha River, and Silver Springs. Inputs to the model include land conditions, soil conditions, rain and climate conditions, and water conveyance systems found on the property. In order to calculate the extent to which nutrients applied to the land surface might affect receiving waters, a time series of surface water and groundwater flow is “routed” through the modeled watershed and to the various outlets from the system, all of which have assimilation algorithms that represent the types of nutrient uptakes expected to occur as water goes through the system. Simulations were performed on the North Tract in its condition prior to acquisition by Sleepy Creek, in its current “exempted improved pasture condition,” and in its proposed “post—development” pivot-irrigation condition. The simulations assessed impacts of the site conditions on surface waters at the point at which they leave the property and discharge to Mill Creek, and at the point where Mill Creek merges into the Ocklawaha River. The baseline condition for measuring changes in nutrient concentrations was determined to be that lawfully existing at the time the application was made. Had there been any suggestion of illegality or impropriety in Sleepy Creek’s actions in clearing the timber and creating improved pasture, a different baseline might be warranted. However, no such illegality or impropriety was shown, and the SJRWMD rules create no procedure for “looking back” to previous land uses and conditions that were legally changed. Thus, the “exempted improved pasture condition” nutrient levels are appropriate for comparison with irrigated pasture nutrient levels. The WAM simulations indicated that nitrogen resulting from the irrigation of the North Tract pastures would be reduced at the outflow to Mill Creek at the Reach 22 stream segment from improved pasture levels by 1.7 percent in pounds per year, and by 0.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 1.3 percent in pounds per year, and 0.5 percent in milligrams per liter of water. These levels are small, but nonetheless support a finding that the berm system is effective in reducing nitrogen from the North Tract. Furthermore, the WAM simulations showed levels of nitrogen from the irrigated pasture after the construction of the retention berms to be reduced from that present in the pre- development condition, a conclusion consistent with that derived from the BMPTRAINS model. The WAM simulations indicated that phosphorus from the irrigated North Tract pastures, measured at the outflow to Mill Creek at the Reach 22 stream segment, would be reduced from improved pasture levels by 3.7 percent in pounds per year, and by 2.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 2.5 percent in pounds per year, and 1.6 percent in milligrams per liter of water. Those levels are, again, small, but supportive of a finding of no impact from the permitted activities. The WAM simulations showed phosphorus in the Ocklawaha River at the Eureka Station after the construction of the retention berms to be slightly greater than those simulated for the pre-development condition (0.00008 mg/l) -- the only calculated increase. That level is beyond miniscule, with impacts properly characterized as “non- measurable” and “non-detectable.” In any event, total phosphorus remains well below Florida’s nutrient standards. The WAM simulations were conducted based on all of the 15 pivots operating simultaneously at full capacity. That amount is greater than what is allowed under the permit. Thus, according to Dr. Bottcher, the predicted loads are higher than those that would be generated by the permitted allocation, making his estimates “very conservative.” Dr. Bottcher’s testimony is credited. During the course of the final hearing, the accuracy of the model results was questioned based on inaccuracies in rainfall inputs due to the five-mile distance of the property from the nearest rain station. Dr. Bottcher admitted that given the dynamics of summer convection storms, confidence that the rain station rainfall measurements represent specific conditions on the North Tract is limited. However, it remains the best data available. Furthermore, Dr. Bottcher testified that even if specific data points simulated by the model differ from that recorded at the rain station, that same error carries through each of the various scenarios. Thus, for the comparative purpose of the model, the errors get “washed out.” Other testimony regarding purported inaccuracies in the WAM simulations and report were explained as being the result of errors in the parameters used to run alternative simulations or analyze Sleepy Creek’s simulations, including use of soil types that are not representative of the North Tract, and a misunderstanding of dry weight/wet weight loading rates. There was agreement among witnesses that the WAM is regarded, among individuals with expertise in modeling, as an effective tool, and was the appropriate model for use in the ERP application that is the subject of this proceeding. As a result, the undersigned accepts the WAM simulations as being representative of comparative nutrient impacts on receiving surface water bodies resulting from irrigation of the North Tract. The WAM confirmed that the proposed retention berm system will be sufficient to treat additional nutrients that may result from irrigation of the pastures, and supports a finding of reasonable assurance that water quality criteria will be met. With regard to the East Tract, the WAM simulations showed that there would be reductions in nitrogen and phosphorus loading to Daisy Creek from the conversion of the property to irrigated pasture. Those simulations were also conservative because they assumed the maximum number of cattle allowed by the nutrient balance, and did not assume the 30 percent reduction in the number of cattle under the NMP so as to allow existing elevated levels of phosphorus in the soil from the sod farm to be “mined” by vegetation. Pivot 6 The evidence in this case suggests that, unlike the majority of the North Tract, a small area on the western side of the North Tract drains to the west and north. Irrigation Pivot is within that area. Dr. Harper noted that there are some soils in hydrologic soil Group A in the vicinity of Pivot 6 that reflect soils with a deeper water table where rainfall would be expected to infiltrate into the ground. Dr. Kincaid’s particle track analysis suggested that recharge to the surficial aquifer ultimately discharges to Mill Creek, except for recharge at Pivot 11, which is accounted for by evapotranspiration, and recharge at Pivot 6. Dr. Kincaid concluded that approximately 1 percent of the recharge to the surficial aquifer beneath the North Tract found its way into the upper Floridan aquifer. Those particle tracks originated only on the far western side of the property, and implicated only Pivot 6, which is indicative of the flow divide in the Floridan aquifer. Of the 1 percent of particle tracks entering the Floridan aquifer, some ultimately discharged at the St. John’s River, the Ocklawaha River, or Mill Creek. Dr. Kincaid opined, however, that most ultimately found their way to Silver Springs. Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs. Dr. Bottcher generally agreed that some small percentage of the water from the North Tract may make it to the upper Floridan aquifer, but that amount will be very small. Furthermore, that water reaching the upper Floridan aquifer would have been subject to the protection and treatment afforded by the NMP and the ERP berms. The evidence regarding the somewhat less restrictive confinement of the aquifer around Pivot 6 is not sufficient to rebut the prima facie case that the CUP modification, coupled with the ERP, will meet the District’s permitting standards. Public Interest The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is “consistent with the public interest” is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production. Sleepy Creek could raise cattle on the property using the agriculturally-exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation. Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order: approving the issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Permit Application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report; and approving the issuance of Environmental Resource Permit No. IND-083-130588-4 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Joint Application for Individual and Conceptual Environmental Resource Permit and the Individual Environmental Resource Permit Technical Staff Report. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue The issue is whether Respondent, John Jozsa, should have a $6,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly dredging 0.91 acres of wetlands and filling 0.52 acres of wetlands without a permit on his property located in unincorporated Sumter County, Florida, as alleged in a Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by Petitioner, Department of Environmental Protection (Department), on March 13, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The charges Respondent owns an approximate 4.5-acre parcel of land located at 1978 County Road 652A in unincorporated Sumter County, Florida. The parcel identification number is N29A003. The property is generally located east of Interstate 75, west of U.S. Highway 301, and just south of the City of Bushnell. According to aerial photographs, County Road 652A appears to begin at U.S Highway 301 and runs in a westerly direction where it forms the southern boundary of Respondent's parcel and terminates a short distance later. Southwest 80th Street also runs west from U.S. Highway 301 and forms the northern boundary of the property, while Southwest 20th Terrace runs in a north- south direction adjacent to its western boundary. Respondent purchased the parcel on September 27, 1993, and constructed a home on the site several years later. The property is contiguous to Mud Lake, a Class III waterbody lying to the southeast of Respondent's property. According to Respondent's Exhibit 2.b., at least a portion of the property is in the Federal Emergency Management Agency's (FEMA's) 100-year flood zone. While conducting a site inspection near Respondent's property on September 27, 2006, Brian Brown, an Environmental Specialist III in the Department's Tampa District Office, heard "heavy equipment" operating nearby and drove to Respondent's home. There he observed a "tracked vehicle" resembling a bulldozer "knocking down trees" and grading an area that appeared to be wetlands. Mr. Brown took photographs of the cleared land and the tracked vehicle to confirm his observations. See Department's Exhibits 2a. through d. At hearing, Respondent acknowledged that he had borrowed the equipment from a friend, Leo, to "level and smooth" the "uplands" and "other areas." After returning to his office, Mr. Brown first confirmed through information from the Sumter County Appraiser's Office that Respondent owned the property in question. He then reviewed aerial photographs of Respondent's property taken in 1993, 1997, 2002, and 2006 to determine the condition of the property in earlier years. These photographs reflected that before 2006, the parcel had no large cleared area like the one that he had observed on the northern half of the property. Mr. Brown also studied a soil survey of the area to determine the type of soils on Respondent's property, and he reviewed the Florida Wetlands Delineation Manual which is used to determine if property is wetlands or uplands. Finally, information in the Department's database revealed that Respondent had not applied for a permit to conduct the observed activities. Based on this preliminary information, Mr. Brown generated a request for a formal inspection of Respondent's property by filling out a complaint form. (Respondent continues to believe that Mr. Brown was not conducting a "routine" inspection in the area but rather was in the area because a neighbor had filed a complaint; however, the complaint was triggered by Mr. Brown, who filed a complaint form himself based on the observations he made on September 27, 2006.) Mr. Brown then contacted Respondent by letter to set up a date on which the property could be formally inspected to verify "that Wetlands and or Surface Waters of the State are not being impacted." In response to Mr. Brown's letter, Respondent advised the Department that it could inspect his property. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee W. Hughes, another Department employee, inspected Respondent's property to determine whether Respondent's activities were conducted within wetlands and to what extent wetlands were impacted. Respondent was present during the inspection. The employees' observations are memorialized in photographs received in evidence as Department's Exhibits 11A through 11N. The two observed a "large" area north of Respondent's home that had been totally cleared and deforested. The center of the cleared property had been dredged or scraped to create a pond-like area several feet lower than the adjoining land, while the soils removed from the pond-like area had been used to create sculptured white side-casting perhaps ten inches high on the edges of the pond, filling additional wetlands. However, the pond was empty because of drought conditions. The Department's inspection revealed that the cleared area was wetlands because of the presence of various plant species which are indicative of wetlands, including Swamp Tupelo, Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush, Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush, Smartweed, and Dayflower. Also, there were hydrologic indicators such as water stain lines, elevated lichen lines, and hypertrophied lenticels. Finally, there were hydric soils found on the property. This was confirmed by ground-truthing (an on- site evaluation of the wetlands and their parameters to verify the on-site conditions), which revealed dark top soil at least four inches thick and the presence of muck. Collectively, these indicators are sufficient to make a finding that the impacted area was wetlands. See Fla. Admin. Code R. 62-340.200 and Department's Exhibit 9. The fact that the "home-site ha[d] [not] been delineated [as wetlands] by any other governmental agency," as asserted by Respondent in his Proposed Recommended Order, is not dispositive of the issue. Respondent's assertion that no dredged materials were taken off-site, and no fill was brought onto the property, was not challenged. A second inspection was conducted by Mr. Brown and Lindsay L. Brock, then a Department employee, on December 19, 2006, for the purpose of mapping the actual size of the impacted area with Global Positioning Satellite (GPS) equipment.6 The second inspection was necessary since the Department's GPS equipment was inoperative during the first inspection. Based on Ms. Brock's GPS calculations, which have been received in evidence as Department's Exhibit 19, the Department determined that the total area dredged was 0.91 acres, while the filled area was 0.52 acres. The total impacted area was 1.4 acres of wetlands. This amount was calculated by measuring the size of the pond, 0.91 acres, with the side-casting accounting for the remaining 0.52 acres. During the inspection, the area was also photographed a second time, and these photographs have been received in evidence as Department's Exhibits 12A through 12K. An Enforcement Inspection Report (Report) was later prepared by Mr. Brown summarizing the findings of the two inspections. That Report has been received in evidence as Department's Exhibit 10 and Respondent's Exhibit 1.e. At hearing, Mr. Brown reaffirmed that the findings in the Report were correct. Specifically, the wetlands in the disturbed area were characterized as having a dominance of Obligate and Facultative Wet species and numerous hydrologic indicators, as well as soils typically found in wetlands. A jurisdictional determination established that the impacted property was wetlands; that there were adverse impacts caused by the violations, i.e., impacts described in Sections 3.2.3.2, 3.2.3.3, 3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest Florida Water Management District; and that there were cumulative and secondary impacts associated with the violations, i.e., the actual loss of 1.4 acres of forested hardwood wetlands (Gum Swamp-613), habitat loss, the alteration in the normal flow of detrital material to Mud Lake, and the reduction in the system's ability to cycle and control nutrient and pollutant levels. Because the impacted lands were wetlands, a permit is required in order to perform any dredging and filling. See Fla. Admin. Code 62-343.050. The Report recommended that a Notice be issued. On February 13, 2007, the Department's Tampa District Office sent Respondent a Warning Letter advising him "of possible violations of law for which [he] may be responsible, and to seek [his] cooperation in resolving the matter." Department's Exhibit 22 and Respondent's Exhibit 1.h. The letter also requested that Respondent meet with Mr. Brown to discuss the alleged violations. A meeting was held at the District Office on March 12, 2007, but efforts to resolve the matter were unsuccessful. During the informal discussions between the parties, and prior to the issuance of a Notice, Respondent requested an exemption under Section 373.406(1) and (6), Florida Statutes.7 The first subsection provides that no Department rule, regulation, or order affects the right of any person to capture, discharge, and use water "for purposes permitted by law." The second subsection provides that the Department may exempt "those activities that the . . . department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district." At hearing, Mr. Brown indicated that he did not respond to the exemption request because Respondent did not qualify. This is because dredging and filling of wetlands is not "permitted by law" without first obtaining a permit, and because, for the reasons cited in its Report, the Department construed the activities as having more than "minimal or insignificant" impacts. Given these circumstances, the statutory exemptions do not apply. The Notice was not issued until a year later on March 13, 2008. The reason for the delay is not of record. Besides contending that Mr. Brown's testimony was not credible, through examination of witnesses and the submission of various exhibits, Respondent raised numerous points to support his contentions that (a) the property is not wetlands, (b) no dredging or filling occurred, and (c) the activities are exempt from Department permitting requirements under several statutes.8 He also argued that the Department's decision to initiate an enforcement action against him was flawed or biased. The latter argument has been considered and rejected. Respondent first asserts that the wetlands on his property were already stressed and in bad condition, and that clearing the area and replanting vegetation in and around the pond area created a healthier environment for the vegetation and plants. While Mr. Brown conceded that the wetlands may have been stressed, that in itself does not cause the impacted property to lose its wetlands character, and a permit to dredge and fill the site is still required. Respondent also pointed out that the impacted area was dry before and after the activities occurred, and therefore the wetlands determination was incorrect. He further points out that the Department's representatives agreed that no water or moisture on the ground surface were observed during their two inspections. Given the number of wetland indicators found on the site even during drought conditions, the argument that the property is not wetlands has been rejected. See Finding of Fact 6, supra. Respondent also argued that an authoritative source (Hydric Soils of Florida Handbook) indicates that the soils in that area of the County are not the type typically found on wetlands. Specifically, the predominant soil on his property is identified as "Kanapaha sand, bouldery subsurface (25)," which is not considered a hydric soil. Mr. Brown explained, however, that notwithstanding what another source may state, it is necessary to verify the type of soil by performing field tests at the site. Ground-truthing performed during the first inspection confirmed the presence of soils typically found in wetlands. See Finding of Fact 7, supra. Respondent also questioned the accuracy of the Department's Exhibit 18, which is an aerial of Respondent's property created by Mr. Brown in February 2008 depicting a pond filled with water in the middle of the cleared area. Respondent contended that the map could not be accurate since the pond area was dry in February 2008 due to drought conditions. In response to this criticism, Mr. Brown noted that the map was not supposed to represent an actual aerial photograph taken in 2008. Rather, it was created for the purpose of superimposing on the property the pond-like area (with water added) observed during the 2006 inspections and was intended only to demonstrate the pond's size in relation to the size of the entire parcel. The exhibit was not tendered for the purpose of proving that the dredging and filling had occurred. Through examination of Mr. Brown, Respondent attempted to show that he qualified for a stormwater exemption under Section 403.813(2)(q), Florida Statutes, on the theory that his activities fell within the purview of that law. The statute exempts from permitting requirements the construction, operation, and maintenance of a stormwater management facility which is designed to "serve single-family residential projects, including duplexes, triplexes, and quadruplexes, if they are less than 10 acres total land and have less than 2 acres of impervious surface and if the facilities" satisfy three conditions. One condition is that the facility must "discharge into a stormwater discharge facility exempted or permitted by the department under this chapter which has sufficient capacity and treatment capability as specified in this chapter and is owned, maintained, or operated by a city, county, special district with drainage responsibility, or water management district . . . ." Id. Therefore, even if the pond-like area could be characterized as a stormwater facility, Respondent still does not meet the requirements of the statute since his "facility" does not discharge into another exempt or permitted facility as defined in the statute. In this case, the waters eventually discharge into Mud Lake, which was not shown to be an exempt or permitted stormwater facility. Respondent also questioned the manner in which the Department calculated the size of the impacted area for purposes of assessing an administrative penalty. See Department's Exhibit 21 and Respondent's Exhibit 1.j., in which penalties are assessed based on the dredged and filled areas each being "greater than one-half acre but less than or equal to one acre." Specifically, he argues that the combined dredged and filled areas exceed one acre in size, and under the terms of Section 403.121(3)(c), Florida Statutes, the administrative penalty schedule in the cited statute does not apply. To support this contention, Respondent noted that in responding to discovery, the Department acknowledged that the total impacted area was 1.4 acres. Section 403.121(3)(c), Florida Statutes, provides in relevant part that "the administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre." In assessing penalties under the statute, the Department considers the dredging and filling as two separate violations. See Counts I and II, Notice. Therefore, it did not combine the two impacted areas for purposes of calculating a penalty under the administrative penalty schedule. While the statute is inartfully drawn and is arguably susceptible to more than one interpretation, the Department's interpretation is a reasonable and permissible one, and its computation is hereby accepted. (If Respondent's construction of the statute was approved, and the two impacted areas were combined, this would not mean that the Department could not assess a penalty. Rather, it appears the Department would then have the choice of (a) filing an action in circuit court seeking the imposition of civil (rather than administrative) penalties, or (b) assessing an administrative penalty under Section 403.121(9), Florida Statutes, which did not exceed $5,000.00 per violation or $10,000.00 for all violations.) Respondent also contended that he was simply performing landscaping and gardening activities with a tracked vehicle, and that no "excavation" within the meaning of Section 373.403(13), Florida Statutes, occurred. That statute defines dredging as "excavation, by any means, in surface waters or wetlands."9 On the other hand, "filling" is defined in Section 373.403(14), Florida Statutes, as "the deposition, by any means, of materials in surface waters or wetlands." On this issue, the evidence shows that Respondent used a tracked vehicle to remove, scrape, and/or push soils from the wetlands to create the pond-like area and then deposited those materials in other wetlands around the sides of the pond to create the side casting. This activity constituted dredging and filling, as defined above. The remaining arguments of Respondent have been carefully considered and rejected. The preponderance of the evidence supports a finding that Respondent engaged in dredging and filling in wetlands without a permit, as alleged in the Notice, and that the charges have been sustained. Mitigation In its Proposed Final Order, the Department contends that Respondent presented no mitigation and therefore the administrative penalties should not be reduced. Mitigating circumstances include, among other things, "good faith efforts [by the violator] to comply prior to or after discovery of the violations by the department." § 403.121(10), Fla. Stat. After the area was dredged and filled, Respondent replanted some trees and plants while landscaping his back yard. Also, prior to hearing, he engaged the services of two experts to prepare an evaluation of the charges in the Notice, inspect the property, and submit suggested corrective actions for restoring the impacted area to its original condition. Although the two experts did not appear at hearing, they did render reports which contained proposed corrective actions, and their work should arguably be construed as a good faith effort by Respondent to comply with the Department's requirement that the property be restored to its original condition. Corrective Actions The Department has proposed extremely lengthy and detailed corrective actions which are contained in paragraphs 17 through 31 of the Notice and are designed to restore the property to its original condition. (Presumably, these are standard corrective actions imposed in cases such as this for restoring dredged and filled wetlands.) At hearing, Mr. Brown described the nature and purpose of these conditions, which can generally be summarized as (a) requiring that the entire 1.43-acre area be filled and/or regraded to its original contour elevation so that the replanting efforts will be successful, and (b) requiring a rigorous replanting and five-year monitoring schedule. Paragraphs 17 through 31 are set forth below: Respondents [sic] shall forthwith comply with all Department rules regarding dredging and filling within a surface water or wetland. Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapter 62-343 and 62-340. Within 30 days of the effective date of this Notice of Violation, the Respondent shall attend a pre-construction conference with a representative of the Department's Environmental Resources staff to review the work authorized by this Notice of Violation. Prior to the commencement of any earthmoving authorized in this Notice of Violation, the Respondent shall properly install and maintain Erosion and Sedimentation Control devices around the impacted area to prevent siltation and turbid discharge in to adjacent wetlands and surface waters (See Figure 2 attached hereto and incorporated herein). The Erosion and Sedimentation Control devices (i.e. staked silt screen) shall be installed no further than one-foot from the toe of the impacted area and shall remain in place until the restoration actions are completed to the Department's satisfaction. The Respondent shall re-grade the approximate 1.43 acres of impacted wetland to a grade consistent with the adjacent, unaltered wetlands, as illustrated in Figures 1 and 2 attached hereto and incorporated herein. (a) Only fill material excavated from the impacted area shall be used in the restoration of the site. If it is determined that there is an insufficient amount of the fill to obtain the required grade, the Respondent shall cease all work and notify the Department so an alternative restoration plan can be developed, if necessary. During and after re-grading, Respondent shall stabilize all side slopes as soon as possible to prevent erosion, siltation, or turbid run-off into waters of the State, but, in any event, no later than 72 hours after attaining final grade. Any re-grading or filling of the restoration areas shall be conducted so as not to affect wetlands and surface waters outside the restoration area. Within 30 days of completing the requirements outlined in paragraph 20 above and prior to planting, the Respondent shall submit a certified topographic survey of the 1.43 acres of restored wetlands to the Department for review and approval. The Department shall notify the Respondent if the re-grading is acceptable and whether the re- grading is at the correct elevation to ensure that the restoration area will function as a wetland as defined in Chapter 62-340, Florida Administrative Codes (sic). If the re- grading is unacceptable to the Department, Respondent shall have 21 days in which to correct the problems identified by the Department and shall submit a new survey upon completion of the required work. The survey shall include the following information for the restoration area: The boundary lines of the Respondent's property. Restoration area on the Respondent's Property (in total square footage or acres of restored wetlands)[.] Topographic survey of the restoration area completed by a certified land surveyor. The survey shall illustrate one-foot interval on 25 foot transects throughout the restoration area. The transects shall commence and terminate 30 feet beyond the limits of the restoration area. Once grading has been approved by the Department, the Respondent shall plant 270 of the following species in any combination throughout the 1.43-acres of restored wetlands: Swamp Tupelo (Nyssa syvatica), Red Maples (Acer rubrum), American Elm (Ulmus Americana L.), Swamp Dogwood (Cornus amomum Mill.), [and] Dahoon Holly (Ilex cassine L.). The tree species shall be planted on 15 foot- centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery grown stock. Within 30 days of completion of the planting outlined in paragraph 24 above, the Respondent shall submit a "Time Zero" Monitoring Report, which includes the following information: Respondent's name, address, and OGC Case number; Date the Corrective Actions were completed; Enough color photographs to accurately depict the completion of the wetland restoration actions outlined in paragraphs 20 through 24 above. The photographs shall be taken from fixed reference points shown on a plan-view drawing; Nursery receipts for all plants used in the Restoration Action; Number, size and spacing of each species planted; and Description of any exotic vegetation removal or control conducted to date including the acreage of exotic vegetation removal and how vegetation removal or control was conducted. Subsequent monitoring reports shall be submitted for a period of 5 years following completion of the Corrective Actions: semi- annually for the first year and annually for year two through five. The purpose of the monitoring shall be to determine the "success of the restoration." The monitoring reports shall include the following information: Respondent's name, address, and OGC Case number; Date the inspection was completed; Color photographs taken from the same fixed reference points previously established during the Time-Zero monitoring report so Department personnel can observe the current site conditions and evaluate the success of the restoration plan; The percentage of each planted tree species within the restoration area that has survived; The average height of the planted tree species; The percent canopy cover by planted tree species within the restoration area; a tree shall be defined as a woody species that has a diameter at breast height (DBH) of at least 1.5 inches and a vertical height of 10 feet as measured from the substrate; The percent cover within the restoration area by planted and naturally recruiting native, "non-nuisance," wetland species, as defined in Chapter 62-340, Florida Administrative Code; The percent cover of Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana) and other nuisance species including those species listed or not listed in Chapter 62-340, Florida Administrative Code; and A written summary describing the success of the restoration area including steps needed and/or taken to promote future success such as replanting and/or nuisance or exotic species removal. Description should also include water levels observed within the restoration area. "Success of the Restoration" means at the end of the monitoring schedule the following success criteria are met in the restoration area: The total percent cover within the restoration area by native wetland vegetation exceeds 85 percent; Average height of the planted tree species exceeds 10-feet; The total percent canopy cover by planted and naturally recruited native wetland trees exceeds 30 percent; The total contribution to percent cover by nuisance, non-wetland or species not listed in Rule 62-340, Florida Administrative Code is less than 10 percent; and The Department has inspected the restoration area and the Department has informed the Respondent in writing that the restoration area meets the definition of a wetland as defined in Rule 62-340.200, Florida Administrative Code. If it is determined by the Department, based on visual inspection and/or review of the monitoring reports, that the restoration area is not meeting the above specified success criteria, an alternative Restoration Plan shall be submitted to the Southwest District Office and shall meet the following requirements: Shall submit the plan within 30 days of notification by the Department of failure to meet the success criteria. Shall implement the alternative plan no later than 90 days after receiving Department approval. Shall restart monitoring and maintenance program. Should the property be sold during the monitoring period, the Respondent shall remain responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the monitoring and maintenance until the Department has determined that the success criteria has been met. The Respondent shall notify the new owner(s) of this in writing and shall provide the Department with a copy of the notification document within 15 days of the sale of the property. Prior to the submittal of each required monitoring report, the Respondent shall remove all exotic and nuisance vegetation from the restored wetland area. Nuisance and exotic vegetation removal shall include but not be limited to Brazilian Pepper (Schinus terebinthifolius) and Water Primrose (Ludwigia peruviana). All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and will not cause ruts in the wetland soils, which will impede or divert the flow of surface waters. More than any other aspect of this case, Respondent questions the nature and extent of the corrective actions being proposed by the Department on the ground they are too extensive, complex, and unnecessary and will cost tens of thousands of dollars. When asked to quantify or estimate the cost of the corrective actions, Mr. Brown could not. It is fair to infer, however, that the cost of the restoration work will be expensive and probably far exceed the amount of the proposed penalties. The two experts' reports, which are hearsay and cannot be used as a basis for a finding of fact, essentially corroborate Respondent's argument that the corrective actions may be onerous and too far-reaching. The difficulty, however, in evaluating Respondent's claim is that the record is limited to Mr. Brown's testimony justifying the conditions, the hearsay reports of the two experts, and a few exhibits tendered by Respondent. A precise description of the impacted area before the work was undertaken is not a part of the record at hearing. Therefore, the original condition is not known. Through the submission of exhibits and the questioning of Mr. Brown, Respondent contended that a natural depression existed in the area where the pond now sits, that he was merely leveling off the depression while removing dead trees and plants, and that very little soil was actually removed from the pond area. Given these circumstances, he contends that there are insufficient fill materials on site to bring the pond to grade. In his Exhibit 3, Respondent estimates that just to fill the pond area and bring it to the grade of the surrounding land, he would be required to haul in approximately 4,200 cubic yards of sand or fill material. Also, Respondent's Exhibit 2.c. purports to be a copy of an elevation survey of the property containing elevations at different points on the property. The handwritten numbers on the exhibit, which Respondent represents were taken from a certified survey (which is not otherwise identified), reflect the property (presumably before the work was undertaken) gradually sloping from a higher elevation on the southern boundary (around 67 feet) to the road on the northern boundary (around 66 feet), with a lower elevation of around 64 feet in the middle of the parcel, indicating a slightly lower elevation in the middle of the property. Also, a part of the property lies within the FEMA 100- year flood zone. Thus, it is fair to infer that the pond area replaced an area with a slight depression and on which water would accumulate during heavy storm events. This circumstance would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Therefore, in implementing the corrective actions, the Department should give consideration, in the manner it deems appropriate, to the fact that the area contained a natural depression before the illicit activities occurred. The evidence supports a finding that the proposed corrective actions, although extensive and costly, should be approved. To the extent Respondent has replanted the impacted area with trees and plants that fit within the Department's restoration scheme, he should also be credited for this work. Reasonable costs and expenses The Department established at hearing that its Tampa District Office employees incurred expenses of more than $500.00 while investigating this matter. This is based upon the number of hours devoted to the case times the hourly salary rate of the employees. Therefore, the Department is entitled to be reimbursed in the amount of $500.00 for reasonable investigative expenses and costs. Respondent has not disputed the amount of time expended by the employees or their hourly compensation but contends in his Proposed Recommended Order that the matter could have been cleared up by a "simple phone call and a few minutes of effort." Respondent's argument is hereby rejected.
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
