The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Collier Development Corporation, Naples, Florida, owns a triangular tract of land consisting of approximately 16 acres in Naples, Florida. In 1958, the Trustees of the Internal Improvement Fund conveyed by quitclaim deed to Collier Development Corporation all its interests in the property. A 1958 affidavit of Collier's surveyor who prepared the legal description of the land was filed in the Collier County public records and states that the land conveyed by the quitclaim deed was "high land" erroneously shown as bay bottom land according to the original government survey, and that the deed was executed in exchange for the conveyance of certain parcels of bay bottom land in Naples Bay to the Trustees. (Exhibits 1-2) In 1976, Petitioner executed an option agreement with Collier Development Corporation to purchase the land in question, contingent upon certain conditions including a requirement to obtain any required fill permits. On December 27, 1976, Petitioner assigned the option agreement to Michael S. Spiegel and himself as joint tenants. On March 14, 1977, a "short form" application was filed by Petitioner, as authorized by Collier Development Corporation, with Respondent to fill the land above the mean high water line to building grade for future residential, multi-family, or commercial uses. The application reflected that 400 cubic yards of rock riprap would be placed at least five feet upland of the designated mean high water line along the boundary of the property that faced the Gordon River and Rock Creek. The riprap revetment is designed to provide a method of containing upland fill material. The application contemplates that a fabric-like material "Mirafi" will be placed on the ground and wrapped over the riprap barrier. The application further provides that approximately 90,000 pounds of fill material will be trucked into the site and placed behind the riprap material to fill the land to a minimum elevation of four feet. It is also proposed to slope the fill material behind the riprap and plant grass seed thereon. In October, 1977, Petitioner filed a "long form" application which merely amplified the original application. The mean high water line was established by a survey performed under standard procedures and which utilized the existing bulkhead line as a point of reference. The survey was conducted in 1977 and 1978, and the procedures used were approved by and the survey filed in the Department of Natural Resources on June 26, 1978. (Testimony of Park, Lawson, Exhibits 4, 6, 8, 11) By letter dated January 26, 1978, Respondent provided notice of its intent to deny the permit application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500. The reasons stated for the proposed denial generally were that filling the land would destroy mangrove vegetation which provides a major input of organic material to estuarine tropic webs, and filters and assimilates pollutants from upland runoff. It was stated that the proposed project would eliminate approximately 15 acres of submerged lands and transition zones, as defined in Chapter 17-4, Florida Administrative Code, which would reduce the quality and quantity of the state's marine resources adjacent to Class II waters and "tend to cause degradation of water quality conditions." Thereafter, on January 25, 1978, Petitioner submitted a petition for hearing wherein the jurisdiction of the Respondent in the matter and its grounds for the proposed denial were challenged. (Exhibit 5) The land in question is located south and adjacent to the confluence of the Gordon River and Rock Creek along the north side of U.S. Highway 41. The Gordon River and Rock Creek are tributaries of Naples Bay and all are Class II waters. The area is vegetated by red mangroves with a lesser number of white and black mangroves. A pond of about one-half acre surrounded by red mangroves is located in the southern section of the tract which occasionally overflows into a ditch running parallel to U.S. 41 located within the highway right-of- way. There is a berm alongside the ditch designed to prevent highway runoff from flowing onto Petitioner's land. During high tides, most of the land is inundated to varied depths ranging from two to eight inches. Certain marine vegetational species are present on portions of the land, such as sea grape, sea purslane, sea daisy, and button wood. Certain marine animal life is present in the mangrove area, including coffee bean snails, ribbed mussels, marsh clams, mangrove crabs, fiddler crabs, and mosquito fish. Other marine species, such as common oysters, scorched mussels, and barnacles inhabit the Rock Creek shore line. There is sparse bird population on Petitioner's land that may in part be due to the proximity of Naples Airport. (Testimony of Lawson, Park, Carroll, Fields, M. Spiegel, Exhibits 3, 7, 10) The quality of water in the Gordon River and Rock Creek is adversely effected to some degree by receipt of sewage plant effluent, discharge from nearby canals and runoff from residential and commercial areas. As a result of high bacterial count in these waters, shell fishing and swimming is not permitted. The mangrove forest on Petitioner's property is in a stressed condition as evidenced by the thinness of the canopy. It is probable that this condition was caused primarily by the introduction of fresh water from canals into the surrounding waters. (Testimony of Carroll, Fields, Erwin, Yokel) Mangrove wetlands are an important component of the estuarine ecosystem which provide nutrient stabilization and transformation in the supply of an organic base to the estuarine food chain, filtration of upland runoff, and storage of storm waters. They are a nursery for fish and invertebrate species, and a fish and wildlife habitat. The mangrove system on Petitioner's property is productive and contributing to the needs of marine life in the Naples Bay area. In this respect, most of the detritus produced by the mangrove system occurs below the mean high water line. However, the tidal flow during storm conditions at certain times of the year can release accumulated organic matter from the higher areas. This generally occurs in late summer and early fall when feeding demands of organisms are high. (Testimony of Erwin, Yokel) Although no system for containing surface water runoff was set forth in Petitioner's permit application, it is planned that such runoff will be retained on the site by a site drainage plan that would be accomplished by grading and the use of the existing pond or other means of retention, in addition to the natural percolation into the sandy fill material. (Testimony of Park) The application did not specify the precise distance from the mean high water line at which fill would be placed, but Petitioner clarified this point at the hearing. Fill material will not be placed closer than 100 feet upland of the mean high water line. The mangrove area left intact below that point will enable the ecological system to survive. However, due to the fact that the Naples Bay area does not produce sufficient organic matter to fully support animal life in the area, the loss of a substantial portion of mangroves will impact on the detrital food chain to some extent. (Testimony of Carroll, Yokel)
Recommendation That Respondent issue the requested permit to Petitioner, subject to the modification thereto made at the hearing with regard to the 100' setback as set forth in paragraph 8 of the foregoing Findings of Fact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Howard Horowitz, Esquire 3550 Biscayne Boulevard Suite 402 Miami, Florida 33137 William Blackwell, Esquire 3003 North Miami Trail Naples, Florida
Findings Of Fact Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact Counsel for the respective parties stipulated to the following facts: Quayside Associates, Ltd., is a Florida limited partnership whose address is 10670 N.E. Quay Plaza, North Miami, Florida 33134. Respondent is the Department of Environmental Regulation, an agency of the State of Florida as defined in Section 120.52(1), Florida Statutes. This Petition relates to the Department's File No. DF13-28371-6E. Petitioner was the applicant for the subject permit and will, as applicant, be directly affected by a denial thereof. On February 28, 1980, Petitioner applied to the Department for approval of its Phase II Docking Facility which included an elevated walkway with wave break panels, nineteen (19) new wet slips and twenty-five (25) davits. (Exhibit "1") On March 6, 1980, a completeness review form was sent to the applicant's representative by the Department. (Exhibit "2") On March 6, 1980, the applicant's representative responded to the comments of the Department and completeness summary by letter from J. Frederic Blitstein to the Department's Subdistrict Office. (Exhibit "3") As shown by the Department letter of May 29, 1980, response to the completeness summary were received by the Department from the applicant on March 7 and 11, 1980, with final Department of Natural Resources clearance, as requested by the completeness summary, received by the Department of March 14, 1980 (see Exhibit 4). The response of the Depart- ment of Natural Resources is attached hereto as Exhibit "5". On March 20, 1980, the representative of the Department made an on-site visit to the site as shown by the Departmental Summary Permit Processing Worksheet attached as Exhibit "6". On April 9, 1980, the Department received the comments and recommendations of the Dade County Department of Environmental Resources Management which indicated that it had "no objection to the issuance of the Permit" subject to certain stipulations and conditions. (Exhibit "7") On June 25, 1980, the Department held its scheduled Biscayne Bay Aquatic Preserve Hearing in Miami, Dade County, Florida. On July 2, 1980, the Department issued a completion notice to the applicant indicating completion of the application on June 25, 1980. (Exhibit "8") On September 9, 1980, the Department issued its Letter of Intent to Deny which gives rise to the subject proceeding. (Exhibit "9") This Petition ensued and was filed with the Department on September 24, 1980. The State of Florida, Division of Administrative Hearings has jurisdiction over this matter and has jurisdiction to make an Interlocutory Ruling regarding same. This Stipulation may be utilized for interlocutory purposes or for all subsequent purposes.
Findings Of Fact Seminole County adopted amendments to its land development regulations on February 14, 1989, and to its comprehensive plan on February 28, 1989. As amended, the Seminole County comprehensive plan shall be referred to as the "Plan." As required by the Wekiva River Protection Act, Chapter 369, Part II, Florida Statutes (1989) (the "Act"), Seminole County submitted the Plan to the Department of Community Affairs ("DCA") for review and a determination of compliance under the Act. DCA received the amendments on March 9, 1989. On April 7, 1989, DCA filed a petition with the Florida Land and Water Adjudicatory Commission (the "Commission"). The petition requests the Commission to confirm DCA's determination that the amendments are in compliance with the Act with one exception. The exception concerns five acres of undeveloped land designated Commercial on the Future Land Use Map. The land includes a 1.55-acre parcel located on the southwest corner of State Road 46 and Longwood-Markham Road owned by Miller Enterprises, Inc. ("Miller" and "Miller Parcel") and a 1.5-acre parcel located on the southeast corner of State Road 46 and Longwood-Markham Road owned by Messrs. Katz and Brechner ("Katz" and "Katz Parcel"). A third parcel of about two acres abuts the Miller Parcel and is owned by Rainbow Construction Company of Central Florida, Inc. However, this parcel has been included in land that has already been platted as part of an adjacent residential subdivision and would not likely be reassembled with the Miller Parcel for commercial purposes. Although the land adjoining the Katz Parcel is under common ownership, the land is designated Suburban Estates and could, as discussed in Paragraph 13 below, be reassembled for only limited nonresidential uses without an amendment to the Plan. DCA's petition requests the Commission to order Seminole County to amend the Plan to change the designation of the Katz and Miller Parcels from Commercial to Suburban Estates, General Rural, Conservation, or other low- density compatible designation. The Plan designates land for various uses throughout the County. Relevant designations are Commercial, Low Density Residential, Suburban Estates, General Rural, and Conservation. The specific uses permitted within each land use area are set forth in the Seminole County Land Development Code ("Code"). The Plan incorporates the zoning districts contained in the Code. The Commercial designation permits the following commercial uses (CN, CS, C-1, and C-2): artist studio, barber shop, newsstand, clinic (except animal), ice cream store, dance or music studio, drug store, fire station, florist, gift shop, hobby shop, interior decorating, jewelry store, laundry pick-up location, library, locksmith, luggage shop, business or professional office, photography studio, physical fitness studio, retail paint store, post office, retail sporting goods, school, shoe repair shop, tailoring shop, tobacco shop, toy store, watch repair, clothing store, convenience market with self- service gasoline pumps, delicatessen, grocery store, self-service laundry, amusement and commercial within an enclosed building, appliance store, bakery, bank, church, day-care center, employment agency, funeral home, furniture store, hardware store, laundromat, pet store, plant nursery, private club, quick print shop, broadcasting studio without tower, electronics store, restaurant, theater, building and plumbing supplies, car wash, furniture warehouse, hotel or motel, marine sales and service, mobile home sales, outdoor advertising signs, parking garage, book printing shop, automobile sales, veterinary hospital and kennel, alcoholic beverage establishment, public utility structure, living quarters in conjunction with commercial use, hospital, nursing home, contractor's establishment without outside storage, open-air flea market, lumber yard, mechanical garage, paint and body shop, service station, and adult entertainment. In addition, the Commercial designation allows Planned Commercial Development District (PCD), which permits any nonresidential use, including industrial and office, if approved by the Board of County Commissioners. The Commercial designation permits the following office uses (OP): dental and medical clinic; general office building; financial, real-estate, and professional business; telephone business; post office; public park or playground; fire station; administrative public building; church; day-care center; and similar uses approved by the Planning and Zoning Commission. The Commercial designation permits the utilization of residences for professional uses (RP) and planned unit developments (PUD). The PUD district permits the following uses: residential, church, school, and nonresidential uses (including commercial, retail, industrial, office, and professional) if certain criteria are met, such as a minimum area of 20 acres. The Commercial designation permits the following agricultural uses (AC and A-1): grove and farm for the cultivation of citrus, vegetables, fruits, grass sod, and trees; pasture and grassland for the cultivation of livestock (excluding swine); wholesale plant nursery and greenhouse; poultry production; dairy farm; fish hatchery; bait production; publicly operated park; accessory agricultural structures such as stables, barns, silos, sheds, and windmills; home occupation, single-family dwelling with customary accessory structures; guest house; cemetery; kennel; sawmill; public utility and service structure; borrow operation; golf club or sporting club if at least 10 acres; riding stable if at least 10 acres; commercial swine operation; mobile home and customary accessory structures; adult congregate living facility and group home; truck farm; grazing and pasturing of animals; roadside stand; government-operated building; timber production; apiculture; church; private school or college; temporary asphalt plant; state-chartered fraternal club; private recreational activity open to the public; heliport; sewage disposal plant; antenna farm; off-street parking; and livestock slaughtering. Last, the Commercial designation permits public uses under the public lands and institutions district (PLI), which allows such diverse uses as a zoo, cultural exhibit, or landfill. The General Rural designation permits the uses allowed under the AC, A-1, PLI, and RM-3 districts. The last zoning district allows transient vehicular and tent camping; associated recreational buildings, laundries, toilets, and showers; service store for campers; recreational facilities, such as golf, swimming, and tennis; utility or storage building; sewer and water plants when necessary; and one house or mobile home for office and residential uses for the operator. To the extent that residential uses are allowed in the General Rural area, the maximum density is one unit per acre (1:1). The Suburban Estates designation permits the uses allowed under the AC, A-1, PLI, and RC-1 zoning districts. The last district allows single-family residential and customary accessory uses, citrus cultivation, guest cottage, home occupation, riding stable for personal use, private or public school, church with attendant facilities and parking, publicly operated park, and adult congregate living facility and group home. The maximum density for residential uses is one unit per acre (1:1). The Conservation designation permits the uses allowed under the AC and A-1 zoning districts. Otherwise, according to the Plan, the designation if intended for "wetland areas" with the following permitted uses: publicly owned open space and recreation and water management areas, public and private game preserves, private development open space and recreation and water management areas, and livestock grazing and short-term crop production. These uses are subject to the Floodprone Overlay Zoning District and Wetlands Overlay Zoning District in the Code. Because neither of these sets of provisions appears applicable to the subject parcels, the Conservation designation is inappropriate to these parcels. The Low Density Residential designation permits the uses allowed under the AC, A-1, RC-1, PLI, and PUD zoning districts, as well as five single-family residential zoning districts. The maximum residential density is four units per acre (4:1). One provision of the Plan overrides all of the designations and approved land uses. The Future Land Use element of the Plan provides: Regardless of the land use designation or zoning classification assigned to any parcel of property located within the Wekiva River Protection Area as defined in Section 369.303(9), Florida Statutes (1988 Supplement), or its successor provisions, no development may be approved upon parcels so located unless the proposed development conforms to the provisions of the Wekiva River Protection Act [citations omitted] or its successor provisions and the provisions of this Comprehensive Plan adopted to conform to said Act. Plan, p. VI-A8. The Katz and Miller Parcels are located in the Wekiva River Protection Area in Seminole County. They are just over four miles west of the Interstate 4/State Road 46 interchange, which is about four miles west of Sanford. The parcels are about 4100 feet east of the Wekiva River, which divides Seminole and Lake Counties. The Wekiva River, which flows in a northerly direction, passes under State Road 46 about five miles before it empties into the St. Johns River. The Wekiva River begins at the confluence of Rock Springs Run and Wekiva Springs Run. Rock Springs Run begins at Rock Springs, which is located in Kelly Park. Kelly Park is a 200-acre park owned by Orange County. After leaving the park, the run flows about nine miles in a generally southward direction until it reaches Wekiva Springs Run, which begins about one-half mile to the southwest at Wekiva Springs. The spring is located in the southeast corner of Wekiva Springs State Park, which is a 6400-acre park located in Orange County. The lower half of the Rock Springs Run divides Wekiva Springs State Park on the west and Rock Springs Run State Preserve on the east. Rock Springs Run State Preserve occupies about 8500 acres and extends northward, with Wekiva Springs State Park, to the vicinity of the Lake County line. The northern extent of the 14,900 acres of state holdings represented by Rock Springs Run State Preserve and Wekiva Springs State Park are separated from State Road 46 by the BMK Ranch. The ranch constitutes 5850 acres of land. The ranch is on the CARL list for state acquisition, and at least part of it is close to being purchased, if it has not been purchased already. The northeast corner of the BMK Ranch is between two and two and one-half miles west of the Wekiva River on the south side of State Road 46. Directly to the north of the BMK Ranch is the Seminole Springs tract, which consists of 9200 acres. Seminole Springs is also on the CARL list, but acquisition has not been going smoothly. The northernmost point of the Wekiva River Protection Area is slightly east of the mouth of the Wekiva River. The eastern boundary of the protection area measures about 12 miles north-to-south. Proceeding due south past State Road 46 in the vicinity of Orange Boulevard, the line turns over one mile due west and then runs south along Markham Woods Road to a point just north of the interchange of State Road 434 and Interstate 4, capturing the broad, lower portion of the Little Wekiva River before it joins the Wekiva River. The southern boundary of the Wekiva River Protection Area is formed by a line running east-west between the Interstate 4/State Road 434 corner to the Orange County line. The southern boundary runs north of Lake Brantley and captures much of Wekiva Springs Road, including one parcel designated on the Future Land Use Map as Commercial and at least one parcel designated as Office. The Wekiva River Protection Area includes a smaller area known as the Wekiva River Protection Zone. The eastern boundary of the protection zone crosses State Road 46 about one-quarter of a mile west of the two parcels. To the east of the Wekiva River, the northern portion of the protection zone averages roughly one-half mile in width until it reaches Heathrow West, which is a large planned development located between Markham Woods Road and the Wekiva River directly west of the intersection of Lake Mary Boulevard and Markham Woods Road. At this point, the protection zone turns to the east and runs east of the Little Wekiva River until the zone terminates at the southeast corner of the protection area. The land to the north of the Katz and Miller Parcels on the Seminole County side of the Wekiva River is largely undeveloped, with much of it owned by the state or Seminole County. Most of this land is within the Wekiva River Protection Area, whose eastern boundary crosses State Road 46 about two and one- half miles east of the parcels. A thin strip of development lies on the east bank of the Wekiva River. The development, which penetrates about one mile north off State Road 46, consists of low density residential and a 55-dwelling unit marina. The area is designated on the Future Land Use Map as General Rural. Directly east of this strip of development is the Lower Wekiva River State Preserve. The Preserve consists of 4636 acres of land, divided about one- third in Seminole County and two-thirds in Lake County. The Lake County portion of the Preserve abuts the northeast corner of the Seminole Springs tract. The Seminole County portion lies adjacent to the Wekiva River between State Road 46 and the confluence of the St. Johns and Wekiva Rivers. Overall, the Preserve includes four and one-half miles of the Wekiva River, one mile of the St. Johns River, and 3.8 miles of Black Water Creek, which runs north of State Road 46 in Lake County and merges with the Wekiva River just upstream from the river's mouth. Much of the Wekiva River and Black Water Creek, as well as Rock Springs Run, are designated as Outstanding Florida Waters, and a primary purpose for the state purchase of the above-described lands has been to protect these waters. The Lower Wekiva River State Preserve contains habitats ranging from uplands to wetlands near the rivers. These habitats include sand hill, scrubby flatwoods, pine flatwoods, sand pine scrub, cypress dome, and bayhead communities. The sand pine scrub is itself very rare. The substantial sand hill habitat is important for gopher tortoises and indigo snakes. The scrubbier habitats are used by the Florida scrub jay and Florida black bear. The Department of Natural Resources manages the Preserve to replicate conditions at the time of the arrival of the first Europeans around 1513. The Preserve is available for passive recreation, such as hiking and horseback riding. A portion of the Florida Trail passes through the Preserve. The Preserve offers no recreational facilities because its primary function is to protect viable resources. One of the most critical management tools toward protecting resources is prescribed burning. Artificial suppression of fires leads to the replacement of the existing habitats by climax communities, such as hammocks, which are less suitable for certain endangered wildlife. The presence of nearby development interferes with the prescribed- burning program. However, State Road 46 is already a major arterial highway with an average daily traffic count between the Wekiva River and Orange Boulevard of 10,211 vehicles. Exacerbating the situation, vehicles on this portion of the highway, which is only two-lanes and unlighted, routinely exceed the posted speed limit of 55 miles per hour, and the Seminole County Sheriff's Office and Florida Highway Patrol claim that they lack the resources to provide effective enforcement of the speed limit. Consequently, the Department of Natural Resources already conducts its prescribed burning program in the Preserve in a manner to avoid allowing smoke to drift over the highway to the best extent possible. The easternmost boundary of the Preserve along State Road 46 is slightly east of the Katz and Miller Parcels. Separated from these parcels by only the 200-foot right-of-way of State Road 46, the small unpaved parking area and unimproved pedestrian and equestrian entrance to the fenced-in Preserve are directly across from the subject parcels. The 4636-acre Preserve is staffed by a total of four persons, who are also responsible for supervising the 8500-acre Rock Springs Run Preserve. Supervision of human activity in the Preserve is therefore minimal. To the east of the Lower Wekiva River State Preserve and extending for about one mile to the east of the subject parcels is the Yankee Lake tract owned by Seminole County. Among other uses projected for this land is a 2600-acre regional wastewater treatment facility. Like the adjoining Preserve, the Seminole County land contains viable habitat for various wildlife, including the bear. Scattered development exists to the east of the Yankee Lake tract, including a 30-acre mixed-use planned development. Roads have been built in this area, most of which is designated on the Future Land Use Map as General Rural with a density of one unit per acre (1:1). A strip running on both sides of State Road 46 a short distance east of Orange Boulevard is designated Medium Density Residential. A convenience store, which is located at Orange Boulevard and State Road 46, is the closest source of food and gasoline east of the subject parcels. However, most of the one and one-half miles of frontage east of Orange Boulevard to Interstate 4 is designated Conservation. The area to the west of the Katz and Miller Parcels in Lake County is sparsely developed and generally under less development pressure than the land on the Seminole County side of the river, although the development of certain large parcels could materially change this situation. Located on the west bank of the Wekiva River just south of State Road 46 is Wekiva Falls Resort Campground, which is a high density mobile home park with a recreational vehicle campground and marina. Presently, the resort contains 789 dwelling units. Absent state acquisition, two tracts totalling almost 6000 acres of land north and south of the Wekiva Falls Resort Campground are available for development. As of May, 1988, these tracts were proposed for development comprising over 2600 residential units, two golf courses, a 150,000 square foot commercial area, and other uses. Mt. Plymouth, which is about seven miles west of the subject parcels, is the closest source of food and gasoline west of the subject parcels. Much of the future development activity in the vicinity of the Preserve and the Katz and Miller Parcels will take place to the south on the Seminole County side of the river. This area is already characterized by large residential developments. Between the Wekiva and Little Wekiva Rivers, for instance, approximately 4000 to 4500 dwelling units have been approved. To the north and east of these dwelling units, near Lake Mary Boulevard and Markham Woods Road, one development contains 3500 dwelling units. The Plantation planned development (formerly known as Amcor) contains about 400 dwelling units and abuts the Wekiva River south of the intersection of Markham Road and Longwood-Markham Road. Most of the development south of the subject parcels is at a density of one unit per acre (1:1), which, under the subject facts, is the maximum density for low density residential within the meaning of the Act. At present, the closest source of groceries south of the Katz and Miller Parcels is a major grocery store at Interstate 4 and Lake Mary Boulevard, which is over six miles from the two parcels. A limited-access, four- to six-lane expressway, known as the western extension of the Orlando Beltway, is planned to be constructed in an east-west direction from Interstate 4 south of the subject parcels. As it proceeds west from Interstate 4, the expressway will be located about one and one-half miles south of State Road 46 at its closest point to the Katz and Miller Parcels and as it crosses the Wekiva River. After crossing the river, the expressway will turn to the northwest until it reaches State Road 46 at the northeast corner of the BMK Ranch. The expressway will then run roughly parallel to the road until it reaches Mt. Plymouth, which will be the cite of the first interchange west of Interstate 4. A viable population of Florida black bear occupies the Ocala National Forest, which is about 16 miles northwest of the Lower Wekiva River State Preserve. The southern terminus of this population is the portion of the Wekiva River basin south of State Road 46. The basin actually extends south of State Road 436 to the west Orlando area. However, the estimated population of perhaps 20 bears south of State Road 46 is in all likelihood largely restricted to Wekiva Springs State Park, Rock Springs Run State Preserve, and Kelly Park. Whatever the actual number of bears south of State Road 46, they clearly are not so great in number as to form a viable, self-sustaining population. The continued survival of these bears is dependent upon their ability to maintain a connection to the larger bear population north of State Road 46. At one time occurring throughout Florida, black bears are now largely found only in and around large tracts of public land. A self-sustaining population of black bears requires over 400,000 acres of contiguous forests. Each bear in the Ocala National Forest requires a home range of between 12 square miles for females to 40 square miles for males. The effect of loss of habitat is accentuated by the low reproductive rate of the bear. In Florida, the female black bear becomes sexually mature at three to four years and can produce cubs every two years. A litter is normally two to three cubs, which remain with their mother until they attain about one and one-half years. Young females tend to remain in the range of their mothers, but young males disperse to establish their own home range. The movement of bears across State Road 46 has led to numerous incidents in which motor vehicles have struck and killed bears. From 1980, when records were first kept, through 1987, 19 bears were confirmed as killed in the general area. The accidents typically occurred at dusk or during nighttime. In 1988, the rate of confirmed traffic mortalities increased dramatically to 11. Apart from two of the traffic mortalities which occurred north and south of State Road 46 in Lake and Orange Counties, respectively, eight of the accidents occurred on State Road 46 and one within a mile south of the road. All of these incidents took place within a stretch of about three and one-half miles. Six of these incidents were within one mile of the intersection of State Road 46, County Road 433 on the south, and County Road 46A on the north, which actually joins State Road 46 slightly west of County Road 433. A seventh death occurred about one mile east of this intersection, which is about two and three-quarters miles west of the Wekiva River. Of the remaining two incidents, one took place on the bridge over the river, and the easternmost killing took place about a half mile east of the river, which is a little over one-quarter mile west of the Katz and Miller Parcels. As a result of these bear mortalities, the Department of Natural Resources caused bear warning signs to be placed along a six-mile stretch of State Road 46, extending to a point about one-half mile east of the subject parcels. As a practical matter, no viable bear habitat remains south and east of the Katz and Miller Parcels. As long as records have been kept, no bear has been killed on Longwood-Markham Road, although one was killed in recent years on Interstate 4 in the vicinity of State Road 46. The western extension of the Orlando Beltway will further impede bear movement south of State Road 46. Although bears pass along the eastern side of the Wekiva River, the eastern extent of the bear-movement corridor is already largely restricted to the river and its floodplain. The primary bear-movement route in this area is on the west side of the river, notwithstanding the obstruction posed by the Wekiva Falls Resort Campground.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order determining that the Plan is in compliance with the Act. ENTERED this 6th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1990. APPENDIX Treatment Accorded the Proposed Findings of Petitioner 1-3: adopted. and 6: rejected as irrelevant. and 7-10: adopted. 11 and 12: rejected as irrelevant. 13-15: adopted in substance. 16-18: adopted. 19-20: rejected as irrelevant. 21-22: adopted in substance. 23: first two sentences reject as irrelevant. Remainder adopted in substance. 24: adopted. 25: first two sentence adopted in substance. Third sentence rejected as legal argument. Remainder rejected as irrelevant. 26: rejected as legal argument. 27: adopted. 28: first two sentences adopted. Third sentence rejected as legal argument and against the greater weight of the evidence. 29: first sentence rejected as legal argument. Remainder adopted. 30-31: rejected as irrelevant. 32: first two sentences rejected as legal argument. Remainder rejected as subordinate, although surrounding land uses are relevant. 33: rejected as subordinate, although comparative land use intensities are relevant. 34: rejected as subordinate, irrelevant, and recitation of testimony. 35: rejected as irrelevant. 36-37: rejected as recitation of testimony and irrelevant. 38: rejected as irrelevant. 39-40: adopted in substance. However, the death of the bear on Interstate 4 was not during 1988. Also, the subject land is located within the six-mile bear travel corridor, but not within the narrower range in which nearly all of the kills took place during 1988. Lastly, the death on the bridge cannot be attributed either to Seminole or Lake County. 41: adopted in substance, except that, given recent traffic mortality trends, State Road 46 presently represents a barrier to bear movement, although the bears still attempt to cross it. 42: rejected as unsupported by the greater weight of the evidence. 43: rejected as legal argument. 44-45: adopted. 46: rejected as unsupported by the greater weight of the evidence. 47: first three sentences rejected as unsupported by the greater weight of the evidence. Remainder rejected as irrelevant insofar as the greater weight of the evidence does not support the inference that any commercial use of the subject land will necessarily result in such problems. 48: first six sentences adopted. Remainder rejected as irrelevant. The present level of traffic on State Road 46 already demands that DNR take every possible precaution in executing prescribed burns. Even if the Commercial designation were to result in more traffic, which is not necessarily the case, the impact on the prescribed burning program would be insignificant given the existing constraints. Treatment Accorded Proposed Findings of Seminole County (in view of the absence of numbered paragraphs, rulings are by page number) 9-12: rejected as legal argument or otherwise not finding of fact. 13-14: rejected as irrelevant and subordinate. 15: adopted in substance. 16: first paragraph adopted. Second paragraph rejected as irrelevant. 17: first paragraph rejected as irrelevant. Remainder adopted. 18: adopted in substance, although the Preserve is not the southern tip of the bear habitat for the Ocala National Forest bear population. 19: rejected as subordinate and irrelevant. 20: adopted, except that the Preserve is not the southern tip of bear habitat and the area south of State Road 46 is not marginal bear habitat to the west of the subject land. 21: rejected as subordinate, except that traffic travels too fast on State Road 46 and the traffic count is 10,211 vehicles per day. 22: first paragraph adopted in substance. Second paragraph rejected as irrelevant and subordinate. Third paragraph adopted. 23: adopted in substance. 24: adopted as to designation. Remainder rejected as irrelevant and subordinate. 25: rejected as irrelevant, except for possibility of variety of land uses under Commercial designation. 26: rejected as irrelevant, except that Miller Parcel has no wetlands and is not within any floodplain. 27: first paragraph rejected as irrelevant, except that Katz and Miller Parcels are undeveloped and Katz Parcel has not wetlands and is not within any floodplains. Remainder adopted. 28: first incomplete paragraph adopted in substance. Remainder rejected as irrelevant. 29: rejected as irrelevant and subordinate. 30-33: rejected as cumulative, subordinate, and irrelevant. 34: rejected as cumulative, subordinate, and irrelevant, except that commercial development could have less impact on natural resources than residential development. 35: rejected as cumulative, subordinate, and irrelevant, except that last incomplete paragraph is adopted in substance. 36: rejected as not finding of fact. Treatment Accorded Proposed Findings of Katz 1-9: adopted or adopted in substance. 10: second and third sentences adopted. First sentence rejected as irrelevant. Remainder rejected as recitation of testimony. 11-13: rejected as irrelevant. 14-18: adopted. 19: rejected as irrelevant. 20: adopted. 21: rejected as irrelevant. 22: rejected as against the greater weight of the evidence. 23: rejected as irrelevant and subordinate. 24: adopted in substance, except for recitations of evidence, which are rejected. 25: adopted in substance. 26: adopted in substance, except for recitation of evidence, which are rejected. 27: rejected as subordinate. 28: rejected as irrelevant. 29: adopted in substance to extent not recitation of testimony or legal argument. 30: rejected as recitation of testimony. Treatment Accorded Proposed Findings of Miller 1-26: adopted or adopted in substance except that the distance in Paragraph 18 is about 4100 feet, not 4200 feet. 27-33: rejected as irrelevant. 35: adopted in substance. 36-37 and 39: rejected as subordinate. 38: adopted. 40: rejected as unsupported by the greater weight of the evidence. 41: adopted in substance. 42: adopted in substance, although it is not clear: 1) exactly what properties the state is actually going to acquire and 2) whether the properties finally acquired, in view of what development ultimately takes place on surrounding properties, will provide sufficient habitat for bear travel across State Road 46. 43: rejected as subordinate. 44-46: adopted or adopted in substance. 47-48: rejected as irrelevant or subordinate. 49-50: rejected as irrelevant. and 53: adopted in substance. and 54: rejected as irrelevant. 55-60: adopted or adopted in substance. 61-70: rejected as irrelevant. 71-74: adopted or adopted in substance. 75-82: rejected as irrelevant. In this proceeding, the proper emphasis is on whether acceptable impacts could result from any Commercial use, not whether acceptable impacts necessarily would result from any such use. The latter inquiry is limited to the process in which a development order is issued. 83-84: adopted. 85-88: rejected as subordinate or irrelevant. 89-91: adopted or adopted in substance. COPIES FURNISHED: David L. Jordan, Senior Attorney Jeffrey N. Steinsnyder, Senior Attorney Department of Community Affairs 2740 Centerview Drive, Suite 138 Tallahassee, FL 32399-2100 Miranda Franks Fitzgerald Maguire, Voorhis & Wells, P.A. P.O. Box 633 Orlando, FL 32802 Robert A. McMillan County Attorney Seminole County Services Building 1101 East First Street Sanford, FL 32771 David C. Brennan Trickel & Leigh 39 West Pine Street Orlando, FL 32801 Patty Woodworth Director Planning and Budgeting Executive Office of the Director The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact Petitioner, J. C. Grantham, Perry, Florida, purchased real property in Taylor County adjacent to Spring Warrior Creek in 1975. At that time, a frame house and "fish house" were situated on the property. The general area where the property is located consists of a small community development located in a salt marsh area adjacent to the creek. In the past, fill roads were constructed through the tidal marsh to gain waterfront access to Spring Warrior Creek. At the waterward end of these fill roads, fill pads were placed for residential structures. (Testimony of Petitioner, Tyler, Composite Exhibit 1, Exhibit 3) At the time Petitioner purchased the property, there was existing riprap along the creek and limestone fill had been placed landward over a portion of the property on both sides of the access road. The property south of the road is owned by Petitioner's brother. In 1978, the existing house on Petitioner's property burned down and he thereafter dumped trash and 4 or 5 loads of fill at the site of the former house and covered it. The result was approximately 360 cubic yards of fill material which was used to raise the elevation of the tidal marsh area by 3 feet and covered an area of approximately 3,220 square feet. He used this fill pad as support for a 12' x 60' mobile home. (Testimony of Petitioner, Exhibits 1-3) Petitioner filed a joint application with Respondent and the Corps of Engineers on April 29, 1981 for an "after-the-fact" permit for the fill which he had previously placed on his property. The application was reviewed by Respondent's personnel in the Jacksonville subdistrict after on-site inspections. In addition, Respondent solicited and received comments on the application from the Four Rivers Audubon Society, Suwannee River Water Management District, the United States Department of Interior Fish and wildlife Service, the U.S. Environmental Protection Agency, Region 4, and the U.S. Department of Commerce National Marine Fishery Service, in opposition to issuance of the permit. The Department of Natural Resources expressed no objection to the project. On July 31, 1981, Respondent issued its notice of intent to deny the application for the reason that the proposed fill would result in the loss of 3,220 square feet of tidal marsh, and that the fill area would result in water quality degradation of Class III waters in various respects, and that the applicant had not provided Respondent with affirmative reasonable assurance, pursuant to Subsection 17-4.28(3), Florida Administrative Code, that the immediate and long term impacts of the project would not result in the violation of State water quality standards. Thereafter, on September 14, 1981, a "Final Order Denying Application for a Permit" was issued by Respondent, but was made contingent upon the applicant's right to petition for an administrative hearing. A petition for hearing was filed by Petitioner on September 28, 1981. (Testimony of Tyler, Composite Exhibits 1-2) The area where the fill was placed was a black needle rush marsh with smooth marsh cordgrass scattered along higher elevations, together with marsh elder and salt grass. The dominant species is black needle rush, a species of vegetation which is used as a guide in the establishment of the landward extent of waters of the State, pursuant to Respondent's Rules 17-4.02(17) and 17- 4.28(2), Florida Administrative Code. The marsh is a highly productive ecosystem which functions as a nutrient and pollutant trap. The shallow estuarine ecosystem located near Spring Warrior Creek serves as a nursery and feeding ground for small fish and crustaceans. Plant life does well in the estuary waters and periodically enters the food web in the form of detritus. Shoreline vegetation is valuable in stabilization of the soil, and restraining flood tides. Elimination of marsh area adversely impacts upon its functions of nutrient uptake and recycling, and loss of fish and wildlife habitat. Placement of fill in such an area is therefore associated with degradation of water quality with respect to an increase in BOD and lowered concentrations of dissolved oxygen. (Testimony of Tyler, Scott, Composite Exhibit 1, 3) Respondent would have no objection to placement of Petitioner's mobile home on the old fill area toward the creek, but Petitioner would then have possible problems regarding county requirements as to the placement and utilization of an existing septic tank. If Petitioner removed the existing fill which serves as a pad for his present mobile home and restored the area, Petitioner would have no objection to the erection of a "stilt" building on the property. (Testimony of Petitioner, Scott, Composite Exhibit 2)
Recommendation That Petitioner, J. C. Grantham's application for a permit under Chapter 403, Florida Statutes, be denied. DONE and ENTERED this 28 day of January, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 28 day of January, 1982. COPIES FURNISHED: Isadore F. Rommes, Jr., Esquire 216 First Federal Building 115 West Green Street Perry, Florida 32347 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation Twin Towers - 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent, Craig Butterfield, is the owner of approximately 5 acres of land located in Section 33, Township 19 South, Range 27 East in Lake County, Florida. The property lies less than a mile east of the City of Mount Dora in an area known as Sunset Valley Marsh. It fronts on the south side of State Road 46 which runs between Mount Dora and Sanford, Florida. Butterfield is in the asphalt paving business. He intends to construct an office building on his property, and to this end, he began adding construction and demolition material and clean fill on his property in early 1983. When these activities were undertaken, Butterfield was unaware that any regulatory agency approval or permitting was required, and consequently he did not obtain a dredge and fill permit. In May 1983, an environmental specialist employed by the St. Johns Water Management District (SJWMD) observed the filling activity on Butterfield's property and made an on-site inspection. This led to a meeting attended by representatives of petitioner, Department of Environmental Regulation (DER), SJWMD employees and Butterfield in September 1983, at which time permitting requirements were discussed. Eventually, SJWMD advised respondent in January 1984, that he did not require a permit from SJWMD since the filling activity involved less than 5 acres of wetlands. Butterfield thereafter renewed his filling activities and continued to do so until DER instituted this proceeding. In all, respondent placed some 600 cubic yards of fill material on his property. On or about August 1, 1984, petitioner, through its district manager in Orlando, Florida, issued a Notice of Violation and Order for Corrective Action alleging that Butterfield's filling activities were unlawful, and that corrective action should be taken to restore the site to its original condition. The issuance of the Notice and Order precipitated the instant action. Wolf Branch is a stream that runs near respondent's property. Although the evidence is conflicting as to whether it is a "water of the state," the more persuasive evidence supports a finding that it is. This finding is based upon testimony that the stream is perennial in nature rather than intermittent, that it has a well-defined bed, and flowing water. Moreover, it has been identified as a perennial stream on a United States Geological Survey map since as early as the 1960's. The stream originates to the north of Sunset Marsh, meanders southward (downgrade) into and through the Marsh, passes through a culvert under State Road 46, and flows adjacent to respondent's property. It eventually ends up in a pond and sink which lie to the south of the fill area. Together with rainfall, the stream is the primary source of water in the area where Butterfield has placed his fill material. The dominant vegetation in the filled area is Arrowhead, Maidencane and Pickerelweed. All three are on the species list contained in Rule 17-4.02(17), Florida Administrative Code. Under that rule, a site is considered to be within the "landward extent of waters of the state" if the site is dominated by species on the list. In the case at bar, there is a continuum of dominant wetlands vegetation extending from Wolf Branch to the area filled by Butterfield. The landward extent of Wolf Branch in relationship to Butterfield's property extends from an area of Myrtles surrounded by Maidencane on the western edge of the filled area on a line through an area of Black Gum trees to another area of Myrtles on the eastern edge of the fill area. During the period from 1979 until November 1984, the area was customarily submerged by water. However, most of this accumulated water was due to blockage in a culvert under a railroad track which lies southeast of Butterfield's property. After the culvert was unplugged in early November 1984, virtually all of the standing water in the area disappeared. Indeed, only a small area in the southwestern corner of Butterfield's property now has any standing water, and it is approximately 250 feet from the filled area. There is no evidence of record that the filling activities of Butterfield can reasonably be expected to be a source of pollution and result in emitting substances harmful to plant and animal life in quantities prohibited by Department rules. Although petitioner disputes this finding, there is no specific testimony that any environmental harm has occurred by virtue of respondent's activities. 1/ In investigating this matter, the parties agree that DER incurred expenses totaling $290.15, and if DER prevails, it is entitled to that amount of reimbursement from respondent. If restoration of the filled area is required, the appropriate restoration line is reflected on petitioner's exhibit 1 received in evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order requiring respondent to restore that portion of Sunset Valley Marsh upon which fill material was placed south of the restoration line as drawn on petitioner's exhibit 1 and to pay costs of $290.15. The restoration process should be conducted as outlined in the Order for Corrective Action. DONE and ORDERED this 8th day of February, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1985.
